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2,001,414 | Richard S. Stair, Jr. | 1991-08-30 | false | in-re-blue-diamond-coal-co | In Re Blue Diamond Coal Co. | In Re Blue Diamond Coal Co. | In Re BLUE DIAMOND COAL COMPANY, Debtor | Hodges, Doughty & Carson, Thomas H. Dickenson, Arnett, Draper & Hagood, Lewis R. Hagood, Knoxville, Tenn., for debtor., Segal, Isenberg, Sales, Stewart & Cutler, Irwin H. Cutler, Jr., Adrienne A. Berry, Louisville, Ky., Baker, Worthington, Cross-ley, Stansberry & Woolf, James A. McIntosh, Knoxville, Tenn., for Southern Labor Union, Local No. 188., Melnick & Moore, Neal S. Melnick, Knoxville, Tenn., for Committee of Equity Sec. Holders., Gentry, Tipton, Kizer & Little, P.C., W. Morris Kizer, Knoxville, Tenn., for Committee of Unsecured Creditors. | null | null | null | null | null | null | null | null | null | null | 5 | Published | null | <parties id="b685-11">
In re BLUE DIAMOND COAL COMPANY, Debtor.
</parties><br><docketnumber id="b685-12">
Bankruptcy No. 91-32611.
</docketnumber><br><court id="b685-13">
United States Bankruptcy Court, E.D. Tennessee.
</court><br><decisiondate id="b685-15">
Aug. 30, 1991.
</decisiondate><br><attorneys id="b687-10">
<span citation-index="1" class="star-pagination" label="635">
*635
</span>
Hodges, Doughty & Carson, Thomas H. Dickenson, Arnett, Draper & Hagood, Lewis R. Hagood, Knoxville, Tenn., for debtor.
</attorneys><br><attorneys id="b687-11">
Segal, Isenberg, Sales, Stewart & Cutler, Irwin H. Cutler, Jr., Adrienne A. Berry, Louisville, Ky., Baker, Worthington, Cross-ley, Stansberry & Woolf, James A. McIntosh, Knoxville, Tenn., for Southern Labor Union, Local No. 188.
</attorneys><br><attorneys id="b687-12">
Melnick & Moore, Neal S. Melnick, Knoxville, Tenn., for Committee of Equity Sec. Holders.
</attorneys><br><attorneys id="b687-13">
Gentry, Tipton, Kizer & Little, P.C., W. Morris Kizer, Knoxville, Tenn., for Committee of Unsecured Creditors.
</attorneys> | [
"131 B.R. 633"
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"opinion_text": "\n131 B.R. 633 (1991)\nIn re BLUE DIAMOND COAL COMPANY, Debtor.\nBankruptcy No. 91-32611.\nUnited States Bankruptcy Court, E.D. Tennessee.\nAugust 30, 1991.\n*634 *635 Hodges, Doughty & Carson, Thomas H. Dickenson, Arnett, Draper & Hagood, Lewis R. Hagood, Knoxville, Tenn., for debtor.\nSegal, Isenberg, Sales, Stewart & Cutler, Irwin H. Cutler, Jr., Adrienne A. Berry, Louisville, Ky., Baker, Worthington, Crossley, Stansberry & Woolf, James A. McIntosh, Knoxville, Tenn., for Southern Labor Union, Local No. 188.\nMelnick & Moore, Neal S. Melnick, Knoxville, Tenn., for Committee of Equity Sec. Holders.\nGentry, Tipton, Kizer & Little, P.C., W. Morris Kizer, Knoxville, Tenn., for Committee of Unsecured Creditors.\n\nMEMORANDUM ON DEBTOR'S APPLICATION TO REJECT COLLECTIVE BARGAINING AGREEMENT\nRICHARD S. STAIR, Jr., Bankruptcy Judge.\nThe court has before it the debtor's \"Application To Reject Collective Bargaining Agreement\" (Application) filed July 17, 1991. By its Application the debtor seeks authorization to reject a collective bargaining agreement (Contract) with the Southern Labor Union, Local No. 188 (the Union), entered into on May 14, 1990. The Contract, with an effective date of May 5, 1990, expires May 5, 1993. The Union filed a written response in opposition to the Application on July 29, 1991.\nThe record before the court consists of exhibits and testimony introduced at the hearing on the Application held August 5, 6 and 15, 1991. Additionally, the parties stipulate the admissibility of all testimony and exhibits introduced at hearings held May 31, June 10, and July 8 and 25, 1991, in conjunction with motions filed by the debtor pursuant to 11 U.S.C.A. § 1113(e) (West Supp.1991) requesting interim changes to the Contract. Interim relief granted the debtor expires August 31, 1991, thus necessitating a ruling on the Application in advance of the thirty days mandated by § 1113(d)(2). On August 5, 1991, prior to commencement of the hearing on the Application, the parties filed a consolidated Statement Of Issues and Stipulations.\nThis is a core proceeding. 28 U.S.C.A. § 157(b)(2)(A) (West Supp.1991).\n\nI\nEssential to a resolution of the issues before the court is a discussion of the facts, pre-petition and post-petition, which gave rise to the filing of the debtor's Chapter 11 petition and its Application.\nThe debtor is engaged in the business of deep-mining coal which it sells principally under long-term contracts to Georgia Power Company and Orlando Utilities Commission. Most of the properties on which the debtor mines its coal are leased from an *636 entity by the name of Kentucky River Coal Corporation. At the time it filed its Chapter 11 petition, the debtor's operations were concentrated exclusively at its Leatherwood mine complex in Eastern Kentucky. In addition to coal produced from its mining operations, the debtor, subject to limitations imposed upon it under the Contract, also purchases coal mined from its reserves by independent contractors, hereinafter referred to as contract miners.\nThe Southern Labor Union has been the exclusive bargaining agent for employees of the debtor working in or about the mines for many years. At the time the debtor filed its Chapter 11 petition, approximately 272 bargaining unit employees were actively working inside or outside the mines. In addition to its Union employees, the debtor, at the time its petition was filed, also employed a total of approximately 114 non-Union personnel at its Leatherwood complex and at its corporate offices in Knoxville and outlying areas.\nUnder the terms of the Contract, the bargaining unit employees each work four consecutive ten-hour days. There are two groups of employees, each of which works an alternate four-day work week and has four days off. Each employee works 180 days per year: the combined labor force works 360 days per year. All employees receive overtime beyond eight hours per day or forty hours per week at time and a half. Thus, each employee working a normal forty-hour week receives thirty-two hours pay at straight time and eight hours at premium time, i.e., time and a half.\nEffective May 5, 1991, each employee received a daily wage increase of $5.00 per eight-hour day. The rate for the highest classified employees, Continuous Miner Operators, First-Class Mechanics, Electricians and Roof Bolters, increased from $116 per eight-hour day to $121 per eight-hour day. The daily wage rate for entry level personnel, the lowest classified employees, increased from $102 per eight-hour day to $107 per eight-hour day. Giving effect to the two hours overtime pay received by each employee on a daily basis, the true wages of the highest classified employees increased on May 5, 1991, from $159.50 per ten-hour day to $166.37 per ten-hour day. Prior to May 5, 1991, an entry level employee received a wage of $140.25 per ten-hour day which on May 5, 1991, increased to $147.12 per ten-hour day.\nIt is clear from the record before the court that the coal industry in Central Appalachia, and particularly in Eastern Kentucky, is severely depressed. Gordon Bonnyman, a shareholder and chairman of the debtor's Board of Directors, testified that he was associated with the debtor on a full-time basis from 1945 through 1984; that he headed the debtor from 1953 until 1984; that current coal prices are low; that a number of mines are closing, have cut back on operations, or are in bankruptcy; that he has never experienced as depressed a coal market as pervades Eastern Kentucky at this time; and that if the debtor is to survive under present market conditions, it must reduce its costs by several dollars a ton. In hearings held on the debtor's motions for interim relief under § 1113(e) and on its Application, the court has heard no testimony to refute Mr. Bonnyman's analysis of the present state of the coal industry in Eastern Kentucky.\nFrom its 1983 fiscal year ending March 31, 1984, through its 1990 fiscal year ending March 31, 1991, the debtor has seen production costs at its Leatherwood operations drop approximately eight and one-half (8½%) percent from $41.28 during fiscal year 1983 to $37.74 during fiscal year 1990. During this same time period, the price the debtor has realized from the sale of its coal decreased approximately thirty-two and one-half (32½%) percent from a high of $45.24 per ton during fiscal year 1983 to $30.16 per ton during fiscal year 1990.\nThe debtor has not realized a profit from its mining operations since fiscal year 1986 at which time it realized $.95 per ton of coal produced. During its 1990 fiscal year, the debtor sustained a loss from the operation of its Leatherwood mines totalling $9,945,285. During fiscal year 1990, the debtor produced 1,247,318 tons of coal at a cost of $37.74 per ton from which it realized $30.16 per ton. It thus lost $7.58 per *637 ton of coal produced. The labor associated with its $37.74 per ton production cost during fiscal year 1990, inclusive of union and non-Union labor, totalled $17.91 per hour, or approximately forty-seven and one-half (47½%) percent of the cost of each ton of coal produced. During April, 1991, the debtor lost another $1,083,915 on 115,129 tons of coal produced. Its production costs during April totalled $38.63 per ton from which it realized $29.22 per ton. Thus, the debtor's loss escalated to $9.41 per ton in April. This scenario continued through May, 1991, during which the debtor lost $1,066,249 on 102,632 tons of coal produced. Its productivity decreased during May thereby increasing production costs to $44.01 per ton from which it realized $33.63. Thus, during May the debtor sustained a loss of $10.38 per ton. The record further establishes that production dropped from an average of 3,832 tons per day from April 1 through May 17, 1991, the date the debtor filed its Chapter 11 petition, to an average of 2,821 tons per day from May 18 through 31, 1991, and further dropped to an average of 2,211 tons per day from June 1 through 6, 1991. The undisputed testimony of the debtor's president, Ted Helms, is that this drop in production of approximately 1,600 tons per day increased the debtor's losses by $30,000 per day.\nWhile the debtor's coal production operations have been unprofitable since 1986, the converse is true regarding coal purchased directly from contract miners within limitations imposed under the Contract.[1] During fiscal year 1990, the debtor purchased 401,312 tons of coal from contract miners at a cost of $26.71 per ton from which it realized $28.41 per ton.[2] The debtor thus realized a profit of $1.70 per ton for a total profit of $679,864 during fiscal year 1990. During April, 1991, the debtor purchased 69,963 tons of coal from contract miners at a cost of $27.17 per ton from which it realized $29.12 per ton for a profit of $1.95 per ton or a total profit of $135,159. During May, 1991, the debtor purchased 78,978 tons of coal from contract miners at a cost of $25.56 per ton from which it realized $30.48 per ton for a profit of $4.92 per ton or a total profit of $388,656.\nThe following chart contrasts the debtor's cost to produce a ton of coal at its Leatherwood complex with its cost to produce a ton of coal purchased from contract miners for fiscal years 1985 through 1990:[3]\n\n\nFISCAL YEAR PRODUCTION COST PRODUCTION COST\n ENDING LEATHERWOOD CONTRACT MINERS DIFFERENCE\n 03/31/91 $37.74 $26.71 $11.03\n 03/31/90 32.90 24.32 8.58\n 03/31/89 36.19 28.30 7.89\n 03/31/88 38.02 25.28 12.74\n 03/31/87 35.39 25.46 9.93\n 03/31/86 35.37 26.75 8.62\n ______ ______ ______\n AVERAGE $35.94 $26.14 $ 9.80\n\n*638 Prior to filing its Chapter 11 petition, representatives of the debtor met four or five times with Union representatives to discuss the debtor's financial condition. The Union was requested to forego the $5.00 daily wage increase scheduled to go into effect May 5, 1991, and to reduce other benefits and costs. The Union refused to negotiate any concessions to the May 5, 1990 Contract.\nSimultaneous with the filing of its Chapter 11 petition on May 17, 1991, the debtor filed a motion requesting that it be authorized to implement interim changes in its Contract pursuant to Bankruptcy Code § 1113(e). A hearing on the debtor's motion for interim relief was held May 31, 1991. At the conclusion of the hearing, the court granted interim changes in the Contract for a ninety-day period. These changes are summarized as follows:\n1) Health care benefits were modified to provide bargaining unit employees with the same plan as salaried employees. The annual savings attributable to this interim relief is projected at $163,200.\n2) Payments to the Union's pension fund amounting to $.30 per ton of coal mined were suspended. The annual savings attributable to this interim relief is projected at $646,080.\n3) Daily overtime relative to the ten-hour per day shifts worked by bargaining unit employees was eliminated. The wage and hour provisions of the Contract were modified to permit overtime only for work in excess of forty hours per week. The annual savings attributable to this interim relief is projected at $785,093.\n4) Payment by the debtor of holiday work at overtime rather than straight time was eliminated as were three of the bargaining unit employees' eight paid holidays, Labor Day, the day after Thanksgiving, and Memorial Day. The annual savings to the debtor attributable to this interim relief is projected at $126,600.\n5) All vacation pay is to be paid at straight time resulting in an annual projected savings of $93,263.36.\n6) Daily wage rates paid bargaining unit employees were temporarily revised to cap the highest paid employee at $121 per ten-hour day with a corresponding cap on all other wage classifications. The annual savings attributable to this interim relief is projected at $2,401,862.\n7) Elimination of a paid personal day for each bargaining unit employee at an annual savings projected at $33,760.\nAs a result of the interim relief granted under its May 17, 1991 motion, annual savings to the debtor are projected at $4,156,595.[4] This equates to a projected monthly savings of $346,383.\nIn addition to the interim relief granted the debtor on May 31, 1991, the court directed the debtor's non-bargaining unit employees to take a mandatory fifteen (15%) percent wage reduction effective May 1, 1991. The annual savings to the debtor as a result of this mandatory salary reduction is projected at $540,918.\nThe interim relief granted on May 31, 1991, is projected to give the debtor a cost savings of $3.47 per ton of coal produced based on an annual projection of 1,353,600 tons. Of this amount, $3.07 is realized through the modifications to the May 5, 1990 Contract; $.40 is realized through the court ordered salary reductions for non-Union personnel. Accordingly, notwithstanding the May 31, 1991 interim relief, the debtor's projected losses based upon fiscal year 1990 production will not be eliminated, but will merely be reduced from $7.58 per ton of coal produced to $4.11 per ton. Other cost saving measures potentially available to the debtor, including negotiating reductions in haulage costs and royalty payments, would not serve to significantly further reduce its per ton losses.\nOn June 6, 1991, the debtor filed a second motion for interim relief under *639 § 1113(e) requesting that it be permitted to implement additional temporary modifications to the Contract. By this motion the debtor sought to temporarily eliminate those restrictions inhibiting its ability to purchase coal from contract miners.[5] Subsequent to a hearing held June 10, 1991, the court granted this interim relief for a 30-day period. The debtor subsequently laid off a substantial number of employees at its Leatherwood mines including all but twelve bargaining unit employees and began acquiring all of its coal from contract miners.[6] The only bargaining unit employees retained were those essential to operate the preparation plant and to remove equipment from the mines. The debtor has ceased production and is relying on coal purchased from contract miners to meet its contractual commitments. The court, upon subsequent motions filed by the debtor, found it necessary to extend the interim relief granted June 10, 1991, through August 31, 1991. This decision was, in part, attributable to the debtor's inability to obtain workers compensation insurance.\nThe debtor, a self-insured employer under Kentucky's workers compensation laws, informed members of Kentucky's Workers Compensation Board (the Board) in a meeting held June 10, 1991, of the filing of its Chapter 11 petition and its inability to pay bills on outstanding awards or claims being made on workers compensation matters. Subsequent to this meeting, the Board determined that it should call in a $10.6 million letter of credit payable to the Board for the debtor's benefit by First American National Bank of Knoxville. By letter to the debtor's Personnel Director, Allen R. Blevins, dated June 10, 1991, the Board notified the debtor that its self-insurance privileges were revoked. Thus, the debtor and bargaining unit employees were without the benefit of workers compensation coverage. Having lost its self-insured status, the debtor, if it was to operate in compliance with Kentucky law, was required to procure workers compensation insurance either in the private market or through the assigned-risk pool. The debtor endeavored unsuccessfully to obtain the necessary coverage for its work force through the private market. Ultimately, for an annual premium of $293,860.15, the debtor was able to obtain workers compensation coverage through the assigned-risk pool for thirty mining and five clerical employees. The court concludes from the testimony of William J. Smiley, Jr., president of the Knoxville operations of Flattop Insurance Agency, the agency which has handled the debtor's insurance account during the past five years, that the debtor is unable to obtain workers compensation insurance from the private market. The court further concludes from Mr. Smiley's testimony that the likelihood that the debtor can obtain workers compensation coverage from the assigned-risk pool for its entire work force is remote. Were such coverage available, Mr. Smiley testified that the annual premium based on approximately 360 mining employees and five clerical employees with an average annual payroll of $12,010,547 would approximate $4,451,842.[7] This annual premium would, presumably, be lessened proportionately by a smaller number of employees and reduced payroll.\nDuring the 1990 fiscal year ending March 31, 1991, workers compensation costs at the debtor's Leatherwood operations totalled $2,833,573 or $2.27 per ton of coal produced.[8] The projected cost of workers compensation insurance, $4,451,842, if available, would result in an estimated cost of $3.29 per ton assuming the debtor *640 produced a projected 1,353,600 tons of coal in fiscal year 1991.\nThe May 5, 1990 Contract requires the debtor to provide bargaining unit employees with workers compensation coverage. Further, the debtor's major leases, from which it derives its ability to mine coal at its Leatherwood complex, also require it to maintain workers compensation coverage on its employees.\nThe debtor contends that its inability to obtain workers compensation insurance coverage, the depressed coal market in Eastern Kentucky, its high cost of production attributable in large part to high labor costs, and its inability to reverse its losses over the past several years, compel it to discontinue its deep mining operations and to honor its utilities contracts through coal purchased from contract miners. The debtor asserts that its reorganization prospects are wholly dependent upon its ability to restructure its operations around its acquisition of coal from contract miners. If it is limited in its ability to acquire coal in this manner, the debtor contends it will be unable to reorganize and will be required to liquidate. Liquidation, should it occur, might optimistically result in a dividend to unsecured creditors approximating seven (7%) percent.[9]\nIn support of the debtor's contention that it must shift the focus of its operations from coal it produces to coal mined by contract miners, the debtor called an expert witness, Seth Schwartz. Mr. Schwartz, a geological engineer, is part owner of Energy Ventures Analysis, Inc., an entity performing consulting work in economic, environmental, and energy areas. Mr. Schwartz' expertise since 1980 has been in the coal and utility industry. The record establishes Mr. Schwartz' credentials as an expert witness in the area of coal production and productivity in the Appalachian area.\nIn August, 1988, Mr. Schwartz, through Energy Ventures Analysis, Inc., published a report on the production and productivity of mining complexes in the Appalachian area. That study was updated through 1990 for purposes of the hearing on the debtor's Application. This report establishes the following: (1) that in 1987 contract miners in Kentucky conservatively produced twenty-eight (28%) percent of the total production at deep mining complexes; (2) that into the 1990s the total coal produced in Eastern Kentucky by contract miners has increased to thirty-five to forty (35 40%) percent and continues to increase; (3) that labor production costs are higher in company operated mines; (4) that contract miners are more productive than company-operated deep mines by ten to thirty (10 30%) percent; (5) that during 1987 the average production for a company-operated deep mine in Eastern Kentucky was 2.32 tons per manhour worked versus 2.54 tons per manhour worked for coal produced by contract miners; (6) that during 1990, the average production for a company-operated deep mine in Eastern Kentucky was 2.75 tons per manhour worked versus 3.00 tons per manhour worked for coal produced by contract miners; and (7) that during 1990 the debtor's mine productivity was 1.63 tons per manhour worked, an amount substantially below the average for other company-operated mines in Eastern Kentucky.\nMr. Schwartz also did a study establishing that in Eastern Kentucky the cost to produce a ton of coal mined is greater in low-productivity companies. For example, his study showed that the cost to produce 1.50 clean tons of coal per manhour worked approximates $36.70 per ton while the cost to produce 4.00 clean tons per manhour *641 worked approximates $21.80 per ton. The debtor, with a mine productivity during 1990 of 1.63 clean tons per manhour worked, is on the low-productivity end of Mr. Schwartz' schedule for deep-mine operators in Eastern Kentucky.\n\nII\nThe parties have exchanged numerous proposals and counter-proposals regarding modifications to the May 5, 1990 Contract. The debtor made its initial proposal to representatives of the Union as required under § 1113(b)(1) on the day it filed its Chapter 11 petition, May 17, 1991. Other written proposals and counter-proposals were made by the debtor on July 10, 17, and 22, 1991. Written proposals and counter-proposals were made by the Union to representatives of the debtor on June 27, July 15, and August 12, 1991.[10] Bargaining sessions were held May 17 and 22, June 9, 19, and 26, July 10, 15, 17 and 22, 1991. Additionally, the debtor responded in writing to the Union's August 12, 1991 counter-proposal on August 13, 1991. A mediator was present at bargaining sessions held June 26 and July 10, 15, 17 and 22, 1991. The parties have spent many hours subsequent to the commencement of the debtor's bankruptcy case in bargaining sessions.\nThe debtor and Union are in substantial agreement over a number of economic issues. The failure of the parties to finally negotiate modifications to the May 5, 1990 Contract is attributable to their inability to resolve issues surrounding the debtor's use of contract miners. In substance, the debtor in its final proposal of July 22, 1991, proposes an unlimited use of contract miners and that it will \"undertake to require that Lessees or Contract Miners . . . hire 35% of the Lessee's or Contract Miner's production employees from a list of employees furnished to them by the . . . [debtor].\"[11] The Union's response to the debtor's proposal regarding its unlimited use of contract miners has remained relatively unchanged from its initial counter-proposal of June 27, 1991, through its final proposal of August 12, 1991. Material provisions of the Union's June 27, 1991 proposal are as follows:\n2. Any . . . [Contract miner] would be required to hire its entire non-supervisory work force from the panel of laid off Blue Diamond employees under the terms of the 1990-93 collective bargaining agreement, without the need for physical examinations.\n3. Any such contractor would agree to adopt and become a party to the 1990-93 collective bargaining agreement and credit all employees with seniority which they have with Blue Diamond.\nThe August 12, 1991 Union proposal finalizes the Union's position regarding the debtor's use of contract miners as follows:\n2. As long as the . . . [debtor] provids [sic] 200 jobs they can bring in an unlimited amount of outside coal with no minimums. [Contract miners] . . . and the company will recognize the contract to count toward the 200 jobs. [Contract miners] . . . must also hire 100% of their work force from our cut off panel. [Contract miners] . . . exempt from this are Switch Energy, Bud Cornett, and Nally [and] Hamilton.[[12]] Future mines on Cornettsville and Fusonia property are also exempt.\nIn sum, the debtor has consistently maintained that it cannot survive unless it terminates production and purchases coal exclusively *642 from contract miners.[13] The Union insists that if the May 5, 1990 Contract is to be modified to permit an unlimited use of contract miners by the debtor, the debtor must agree that it will require the contract miners to hire their entire work force from laid off bargaining unit employees, and that each contract miner must become a party to the May 5, 1990 Contract.\nThe debtor argues that the Union proposals have been and remain totally unworkable in that the debtor cannot impose the May 5, 1990 Contract on third-party contract miners and, further, that the cost efficiencies of contract-mined coal would be eliminated. Further, the debtor contends the Union proposals potentially or actually constitute unfair labor practices prohibited under the National Labor Relations Act (NLRA).\n\nIII\nThe rejection of a collective bargaining agreement by a Chapter 11 debtor is governed by § 1113 of the Bankruptcy Code. This section, entitled Rejection of collective bargaining agreements, provides in material part:\n(a) The debtor in possession, or the trustee if one has been appointed under the provisions of this chapter, other than a trustee in a case covered by subchapter IV of this chapter and by title I of the Railway Labor Act, may assume or reject a collective bargaining agreement only in accordance with the provisions of this section.\n(b)(1) Subsequent to filing a petition and prior to filing an application seeking rejection of a collective bargaining agreement, the debtor in possession or trustee (hereinafter in this section \"trustee\" shall include a debtor in possession), shall\n(A) make a proposal to the authorized representative of the employees covered by such agreement, based on the most complete and reliable information available at the time of such proposal, which provides for those necessary modifications in the employees benefits and protections that are necessary to permit the reorganization of the debtor and assures that all creditors, the debtor and all of the affected parties are treated fairly and equitably; and\n(B) provide, subject to subsection (d)(3), the representative of the employees with such relevant information as is necessary to evaluate the proposal.\n(2) During the period beginning on the date of the making of a proposal provided for in paragraph (1) and ending on the date of the hearing provided for in subsection (d)(1), the trustee shall meet, at reasonable times, with the authorized representative to confer in good faith in attempting to reach mutually satisfactory modifications of such agreement.\n(c) The court shall approve an application for rejection of a collective bargaining agreement only if the court finds that\n(1) the trustee has, prior to the hearing, made a proposal that fulfills the requirements of subsection (b)(1);\n(2) the authorized representative of the employees has refused to accept such proposal without good cause; and\n(3) the balance of the equities clearly favors rejection of such agreement.\n11 U.S.C.A. § 1113 (West Supp.1991).\nIn sum, § 1113 at subsection (a) provides for assumption or rejection of a collective bargaining agreement \"only in accordance with the provisions of this section.\" Subsection (b) requires the debtor in possession to make a proposal to the Union providing for employee benefit modifications that are necessary to permit the debtor's reorganization and to assure that all creditors, the debtor, and all other affected parties are treated fairly. Subsection (b) further requires the debtor to provide the Union with information necessary to evaluate the proposal and requires meetings between the debtor and the Union. Subsection (c) provides that the court shall approve the Application *643 if it finds the debtor has made a proposal that fulfills the requirements of subsection (b); that the Union has refused to accept the proposal without good cause; and that the balance of the equities favor rejection of the collective bargaining agreement. United Steelworkers of America v. Unimet Corp. (In re Unimet Corp.), 842 F.2d 879, 882 (6th Cir.1988), cert. denied, 488 U.S. 828, 109 S.Ct. 81, 102 L.Ed.2d 57 (1988). Subsections (d), (e), and (f) of § 1113 are not material to the issues presently before the court.\nThe Sixth Circuit has not had occasion to address § 1113 other than peripherally. Its sole excursion into § 1113 appears to be in Unimet, cited supra, in which it held that § 1113 had application to retirees covered by provisions in the debtor's collective bargaining agreement with United Steel Workers of America. Bankruptcy courts within the Sixth Circuit have, however, had opportunity to address motions by debtors to reject collective bargaining agreements. See, e.g., In re Amherst Sparkle Market, Inc., 75 B.R. 847 (Bankr.N.D. Ohio 1987); In re Walway Co., 69 B.R. 967 (Bankr. E.D.Mich.1987); In re Kentucky Truck Sales, Inc., 52 B.R. 797 (Bankr.W.D.Ky. 1985); In re Allied Delivery System Co., 49 B.R. 700 (Bankr.N.D.Ohio 1985). These courts, with some uniformity, have examined debtors' applications to reject collective bargaining agreements within a nine-part test formulated in the case of In re American Provision Co., 44 B.R. 907 (Bankr.D.Minn.1984), by Bankruptcy Judge Robert J. Kressel in the first reported opinion after enactment of § 1113 as part of the Bankruptcy Amendments and Federal Judgeship Act of 1984. Judge Kressel states these nine factors as follows:[14]\n1. The debtor in possession must make a proposal to the Union to modify the collective bargaining agreement.\n2. The proposal must be based on the most complete and reliable information available at the time of the proposal.\n3. The proposed modifications must be necessary to permit the reorganization of the debtor.\n4. The proposed modifications must assure that all creditors, the debtor and all of the affected parties are treated fairly and equitably.\n5. The debtor must provide to the Union such relevant information as is necessary to evaluate the proposal.\n6. Between the time of the making of the proposal and the time of the hearing on approval of the rejection of the existing collective bargaining agreement, the debtor must meet at reasonable times with the Union.\n7. At the meetings the debtor must confer in good faith in attempting to reach mutually satisfactory modifications of the collective bargaining agreement.\n8. The Union must have refused to accept the proposal without good cause.\n9. The balance of the equities must clearly favor rejection of the collective bargaining agreement.\n44 B.R. at 909.\nRegarding each of the above tests, the burden of proof is to be borne by the debtor with a preponderance of the evidence. The burden of going forward with the evidence can, however, shift to the union, particularly with respect to tests number 5, 7, and 8. Amherst Sparkle Market, 75 B.R. at 849; American Provision Co., 44 B.R. at 909. See Walway, 69 B.R. at 975.\nThe issues and stipulations numerically identified by the parties in the consolidated Statement Of Issues and Stipulations filed August 5, 1991, are couched in a format suggesting reliance by the debtor and Union on the American Provision nine-part test. This conclusion is supported by the attention paid American Provision by counsel for each party in briefs filed in support of their respective positions. This court adopts the nine-test format as controlling its analysis of the issues before it.\n\n\n*644 A\nTHE DEBTOR IN POSSESSION MUST MAKE A PROPOSAL TO THE UNION TO MODIFY THE COLLECTIVE BARGAINING AGREEMENT.\nThe parties, through the \"Stipulations\" filed August 5, 1991, stipulate the debtor's compliance with this factor.\n\nB\nTHE PROPOSAL MUST BE BASED ON THE MOST COMPLETE AND RELIABLE INFORMATION AVAILABLE AT THE TIME OF THE PROPOSAL.\nThe parties, through the \"Stipulations\" filed August 5, 1991, stipulate the debtor's compliance with this factor.\n\nC\nTHE PROPOSED MODIFICATIONS MUST BE NECESSARY TO PERMIT THE REORGANIZATION OF THE DEBTOR.\nSection 1113 is limited to a debtor's proposal providing for \"necessary\" modifications to a collective bargaining agreement material to \"employees benefits and protections.\" Negotiations between the debtor and Union have focused, inter alia, on modifications to provisions under the May 5, 1990 Contract relative to wages and hours, the Union's welfare fund and pension plan, vacation pay, seniority, and, as has been emphasized, elimination of those limitations imposed upon the debtor inhibiting its ability to purchase coal from contract miners. The Union cannot seriously suggest that the modifications sought by the debtor do not relate to \"employees benefits and protections.\"\nThe fundamental issue the court is, therefore, called upon to resolve is whether the proposed modifications are \"necessary\" to permit the debtor's reorganization. There is a divergence of opinion on the meaning of \"necessary\" under § 1113(b)(1)(A). The Third Circuit in Wheeling-Pittsburgh Steel Corp. v. United Steelworkers of America, 791 F.2d 1074 (3d Cir.1986), narrowly construes the term \"necessary\" to \"signify only modifications that the trustee is constrained to accept because they are directly related to the Company's financial condition and its reorganization.\" 791 F.2d at 1088. Other courts, including the Second Circuit in Truck Drivers Local 807 v. Carey Transportation, Inc., 816 F.2d 82 (2d Cir.1987), have not so narrowly construed the requirement of \"necessary\" modifications under § 1113. As observed by the Second Circuit, \"the necessity requirement places on the debtor the burden of proving that its proposal is made in good faith, and that it contains necessary, but not absolutely minimal, changes that will enable the debtor to complete the reorganization process successfully.\" 816 F.2d at 90. The Second Circuit's analysis has been adopted by the Tenth Circuit in Sheet Metal Workers' International Assoc., Local 9 v. Mile Hi Metal Systems, Inc. (In re Mile Hi Metal Systems, Inc.), 899 F.2d 887 (10th Cir. 1990). The Tenth Circuit observed that the \"majority of cases decided since Wheeling-Pittsburgh have declined to interpret § 1113(b)(1)(A) as requiring that a proposal be absolutely necessary.\" 899 F.2d at 892 (citations omitted).\nThe court, for purposes of the instant proceeding, need not concern itself with the distinctions between the Second Circuit and Tenth Circuit standards. The record clearly establishes that if the debtor is to reorganize it is essential that it be permitted to purchase coal in an unlimited quantity from contract miners.\nThe debtor's inability to obtain workers compensation insurance coverage, the higher productivity achieved by contract miners, the disparity in costs attributable to purchasing coal from contract miners versus the debtor's excessive production costs, and the established profitability of purchasing coal from contract miners, all serve to establish the debtor's inability to reorganize other than through refocusing its operations on its acquisition of coal from contract miners. The court is persuaded on the record before it that if the Contract is modified to permit the unlimited use of contract miners this debtor's chances of *645 reorganization and its return to profitability are substantially enhanced. The court is equally persuaded that the cost-saving cuts the debtor has implemented, including those realized from the interim relief granted under § 1113(e), are not sufficient to permit its survival through the continued production of coal.\n\nD\nTHE PROPOSED MODIFICATIONS MUST ASSURE THAT ALL CREDITORS, THE DEBTOR AND ALL OF THE AFFECTED PARTIES ARE TREATED FAIRLY AND EQUITABLY.\nRegarding this test, it has been observed:\nIt is somewhat difficult for a court to determine, at the time of the hearing on the motion for rejection, whether this test has been met. Given the fact that Congress has mandated that the court hear a motion to reject a collective bargaining agreement within 14 to 21 days after the filing of the motion, and that the court must, by statute, make a determination within 30 days after the commencement of the hearing, Congress obviously could not have intended that the court make findings with respect to the likely treatment of creditors and equity security holders under a plan of reorganization. . . . Since the court may not be able to determine precisely what the relative sacrifices of creditors, equity security holders, and employees will be under a planas, when, and if a plan is confirmedsection 1113(c) should not be read to require the court to do the impossible. Because a section 1113 motion will almost always be filed before an overall reorganization plan can be prepared, the debtor cannot be expected to identify further alterations in its debt structure. A good faith proposal made under section 1113(b) should satisfy section 1113(c) if, on the basis of the facts available at the time of the hearing, the court concludes that the proposal is not patently unfair to the affected employees when compared to the other effects that the chapter 11 case will have on other parties in interest.\n5 Collier on Bankruptcy ¶ 1113.01[4][d][ii][C] (15th ed. 1990) (citations omitted).\nThe court concludes that the proposed modifications accord all affected parties fair and equitable treatment. The fact that the proposed modifications do not necessarily provide for identical treatment with respect to all affected parties, does not necessarily result in unfair or inequitable treatment under § 1113(b)(1)(A). See Amherst Sparkle Market, 75 B.R. at 851; Allied Delivery System, 49 B.R. at 703. A debtor \"is not required to prove, in all instances, that managers and non-union employees will have their salaries and benefits cut to the same degree that union workers' benefits are to be reduced.\" Carey Transportation, 816 F.2d at 90.\nClearly, the debtor's proposal to use contract miners does not provide identical treatment between Union and non-Union employees. However, given the debtor's overall situation and need for survival, such treatment is not inequitable or unfair. Without the flexibility provided by the debtor's right to employ contract miners, as is provided for by the debtor's proposed modification to the Contract, positive cash flow is impossible and liquidation is in all probability inevitable. The debtor's liquidation analysis, which is undisputed in the record, is that the pool of unsecured creditors would be substantially increased by claims associated with its rejection of its mining leases; that secured creditors holding claims approximating $35,500,000 would, in fact, be secured to the extent of approximately $31,536,000, thus increasing the unsecured creditor pool by an additional sum approximating $4,000,000; that, assuming optimum liquidation results, unsecured creditors might receive a dividend approximating seven (7%) percent; and that shareholders would realize nothing. Further, the testimony of Leo Hamilton, a vice president of Nally and Hamilton, a contract miner presently mining coal from the debtor's reserves, is that if the debtor does not survive Nally and Hamilton will *646 lose investment and start-up costs approximating $3,000,000; that it will lose an additional $250,000 in prospecting and road construction costs; that it will cost approximately $1,000,000 to close the mine in which it operates; and that its 72 mining employees will lose their jobs.\n\"Equity . . . under § 1113 means fairness under the circumstances, not a comparative dollar-for-dollar concession.\" Walway, 69 B.R. at 974 (citing Allied Delivery System, 49 B.R. at 703). The debtor supports its proposal by establishing the profitability of purchasing coal from contract miners. The Union's proposal is unsupported by cost figures of any kind.\nThe record establishes that all of the affected parties are treated fairly and equitably.\n\nE\nTHE DEBTOR MUST PROVIDE TO THE UNION SUCH RELEVANT INFORMATION AS IS NECESSARY TO EVALUATE THE PROPOSAL.\nThe parties, through the \"Stipulations\" filed August 5, 1991, stipulate the debtor's compliance with this factor.\n\nF\nBETWEEN THE TIME OF THE MAKING OF THE PROPOSAL AND THE TIME OF THE HEARING ON APPROVAL OF THE REJECTION OF THE EXISTING COLLECTIVE BARGAINING AGREEMENT, THE DEBTOR MUST MEET AT REASONABLE TIMES WITH THE UNION.\nThe parties, through the \"Stipulations\" filed August 5, 1991, stipulate the debtor's compliance with this factor.\n\nG\nAT THE MEETINGS THE DEBTOR MUST CONFER IN GOOD FAITH IN ATTEMPTING TO REACH MUTUALLY SATISFACTORY MODIFICATIONS OF THE COLLECTIVE BARGAINING AGREEMENT.\n\"Good faith bargaining is conduct indicating an honest purpose to arrive at an agreement as the result of the bargaining process.\" Walway, 69 B.R. at 973. The debtor, commencing May 17, 1991, the date it filed its Chapter 11 petition, submitted its initial proposal to the Union. Thereafter, it submitted numerous other proposals and counter-proposals and met with Union representatives on numerous occasions to engage in bargaining discussions. There is nothing in the record to suggest that the debtor at any time negotiated other than in good faith with the Union.\nThe court finds that the debtor's conduct at all times during negotiations conformed to the good faith requirement mandated under § 1113(b)(1)(B)(2).\n\nH\n\nTHE UNION MUST HAVE REFUSED TO ACCEPT THE PROPOSAL WITHOUT GOOD CAUSE.\nThe term \"good cause\" is undefined in § 1113. However, it is clear that while the debtor \"retains the ultimate burden of persuading the court that the union lacked good cause for refusing proposed modifications, the union must come forward with evidence of `its reason for declining to accept the debtor's proposal in whole or in part.'\" Carey Transportation, 816 F.2d at 92. In the instant proceeding, the Union's refusal to accept the debtor's proposed modifications is premised on the fact that the debtor's proposal did not guarantee jobs to bargaining unit employees. The Union, however, offers no evidence to rebut the debtor's proof which clearly establishes that it is not economically feasible for the debtor to continue production from its Leatherwood mine.\nThe record before the court establishes that the debtor has sustained severe and continuous operating losses from its production operations, both pre-petition and post-petition; that these losses are but partially remedied by the interim relief afforded the debtor under § 1113(e) on May 31, 1991; that the debtor cannot reorganize through its continued efforts at producing *647 coal from its Leatherwood complex; that the debtor has maintained a positive cash flow subsequent to the interim relief granted June 10, 1991, authorizing its unlimited use of contract miners; that the debtor's reorganization potential is through its ability to purchase coal through contract miners; and that the Union's insistence that any modification to the May 5, 1990 Contract compel contract miners to hire their work force from laid off Union employees and to agree to be bound by the terms of the May 5, 1990 Contract would shift the economic problems which necessitated the filing of the debtor's Chapter 11 petition to the contract miners. Further, the Union offers no solution to the debtor's inability to obtain workers compensation insurance.\nThe Union has rejected the debtor's proposed modifications without good cause.\n\nI\nTHE BALANCE OF THE EQUITIES MUST CLEARLY FAVOR REJECTION OF THE COLLECTIVE BARGAINING AGREEMENT.\n\"In considering whether the equities favor rejection, courts have followed the reasoning of Bildisco & Bildisco,[15] that the court must focus on the ultimate goal of chapter 11. The Bankruptcy Code does not authorize freewheeling consideration of every conceivable equity, but rather only how the equities relate to the success of the reorganization.\" 5 Collier On Bankruptcy ¶ 1113.01[4][d][iii][C] (15th ed. 1990). Citing Carey Transportation, 816 F.2d 82.\nOne court, in a case decided shortly after enactment of § 1113, observed:\nIn Bildisco, the Supreme Court described the \"balance of the equities\" test as \"higher than that of the `business judgment' rule, but a lesser one than that embodied in the REA Express\" case.[16] 104 S.Ct. at 1196. In striking the balance in this test, the Supreme Court stated that a Bankruptcy Court must focus on the goal of Chapter 11 when considering those equities, and must consider only how the equities relate to the success of the reorganization. Id. at 1197. The Supreme Court further stated,\nDetermining what could constitute a successful rehabilitation involves balancing the interests of the affected partiesthe debtor, creditors, and employees. The Bankruptcy Court must consider the likelihood and consequences of liquidation for the debtor absent rejection, the reduced value of the creditors' claims that would follow from affirmance and the hardship that would impose on them, and the impact of rejection on the employees. In striking the balance, the Bankruptcy Court must consider not only the degree of hardship faced by each party, but also any qualitative difference between the types of hardship each may face.\nIn re Salt Creek Freightways, 47 B.R. 835, 841 (Bankr.D.Wyo.1985).\nThe primary question in a balancing test is the effect rejection of the contract will have on the debtor's prospect for reorganization. In the instant proceeding, rejection of the Contract will give the debtor a chance at rehabilitation. The debtor has established that without rejection of the May 5, 1990 Contract it will be forced to liquidate. It has further established that the potential of unsecured creditors and equity security holders to realize any benefit from this bankruptcy case is through reorganization and not liquidation. The debtor has shown that it continues to lose money notwithstanding the interim relief it has been granted with respect to wage and other benefit reductions and that it cannot effectively reduce its costs to permit it to produce coal at a profit. Present costs, including labor costs, are simply beyond the debtor's ability to pay. If the debtor is *648 to reorganize its continuing losses must be stopped.\nIf the debtor's Application is denied, the Union's victory is hollow. The debtor cannot operate under the May 5, 1990 Contract. It will therefore be required to liquidate to the detriment of all parties including the Union. The court accordingly finds that the debtor has met its burden of proof on this issue.\n\nIV\nThe debtor raises one final significant issue for consideration by the court. It contends that the Union's proposals regarding contract miners are violative of the NLRA. Specifically, the debtor asserts that the Union's insistence that any new contract miner must be required to adopt and become a party to the May 5, 1990 Contract is a potential, if not actual, violation of § 8(e) of the NLRA.[17] The debtor further contends that the Union's insistence that the Contract be modified to require any new contract miner to employ 100% of its work force from Union labor is violative of §§ 7 and 8(a)(1) of the NLRA.[18] The debtor cites persuasive authority in support of its contention that these two proposals constitute unfair labor practices, and that the Union is, therefore, not bargaining in good faith in its insistence upon the debtor's acceptance of these proposals as a condition to an agreement.\nThe Tenth Circuit in Mile Hi Metal, supra, was confronted with a proposal by a debtor containing modifications to a collective bargaining agreement, which, if implemented, would violate labor law. The court observed that § 1113 was intended to \"operate expeditiously\" and that \"[w]hen the parties are unable to arrive at mutually satisfactory modifications, the bankruptcy court is entitled to use its own rules and procedures in addressing an allegation of illegality.\" 899 F.2d at 891. The court concluded:\nThe bankruptcy court has no authority to adjudicate unfair labor practice claims. It should simply take them into account in determining whether the debtor's proposed modifications satisfy section 1113(b)(1)(A).\nId. (footnote omitted). The court further observed that the provisions of § 1113(b)(2) \"require that both parties confer in good faith\"; that § 1113(c)(2) \"requires the union to have `good cause' for rejecting the proposal\"; and that \"[t]hese two subparts impose an obligation on the union to participate meaningfully in the negotiations and to explain its reasons for opposing the proposal.\" 899 F.2d at 892 (citations omitted).\nThe Union's insistence that modifications to the May 5, 1990 Contract must include language compelling contract miners to hire their entire work force from the panel of the debtor's laid off bargaining unit employees and that the contract miners *649 must agree to be bound by and become parties to the Contract is unequivocally set forth in the first and final proposals submitted the debtor by the Union on June 27 and August 12, 1991. This position was reiterated by the Union from the witness stand through testimony of Johnny Adams, President of Local No. 188.\nThe Union's good faith in bargaining on the contract miner issue is further brought into question through the testimony of one of its bargaining representatives, Jim Polly.[19] Mr. Polly, in response to a question from the debtor's counsel, affirmed that at the conclusion of the meeting of creditors held July 16, 1991, he informed the debtor's president, Ted Helms, that rather than allow the debtor to use contract miners, the Union would support a motion by the debtor's major secured creditors to liquidate the debtor. The verbatim exchange between the debtor's counsel, Mr. Hagood, and Mr. Polly follows:\nQ. I'll ask you if you had a conversation with Mr. Ted Helms after the creditors meeting here.\nA. I believe I spoke with Tedyes.\nQ.O.K. And after the creditors meeting, and you said in source or in substance to Ted Helms that rather than let this company use outside contractors the Union will support the Bank's motion to liquidate this business. You said that didn't you Mr. Polly?\nA. I believe I made that statement. Yes sir.\nFinally, in the \"Stipulations\" filed by the parties on August 5, 1991, the Union stipulates that the debtor provided it \"with such relevant information as is necessary to evaluate the proposals.\" The record establishes, however, that the Union did not employ an accountant to look over the financial information provided by the debtor and that it did not consider what the cost of production would be to the debtor under the June 27 or August 12, 1991 proposals. The Union made its proposals without consideration of the economic impact on the debtor.\nThe three factors discussed above, the arguable illegality of the Union's proposals regarding the debtor's ability to use contract miners, Mr. Polly's statement to the debtor's president at the conclusion of the meeting of creditors, and the Union's failure to evaluate information provided it by the debtor in support of its proposals, lead to the conclusion that the Union, with knowledge of the debtor's history of substantial losses from the operations at its Leatherwood mines, and with knowledge of its inability to obtain workers compensation insurance coverage, chose to bring the bargaining sessions to an impasse through its unwillingness to bargain on the issue of contract miners.\nAs pointed out by the Tenth Circuit in Mile Hi Metal, the bankruptcy court has no authority to adjudicate unfair labor practice claims. The court \"should simply take them into account in determining whether the debtor's proposed modifications satisfy section 1113(b)(1)(A).\" 899 F.2d at 891. The court declined to delineate specific consequences resulting from alleged illegal proposals, but indicated that the offending party should suffer some adverse consequences. The court stated:\nWe do not decide the proper consequences of a refusal to confer in good faith, but clearly some adverse consequence should befall an intransigent party. At the very least, a union's lack of participation should be considered when the court decides whether the union had good cause to reject the proposal and whether the balance of equities favors rejection of the agreement. Other resources may also be available to the bankruptcy court.\n899 F.2d at 892 n. 6 (citations omitted).\nThe court concludes that the intransigent position of the Union on its proposals regarding contract miners, which effectively served to bring the bargaining *650 sessions to an impasse, further supports the conclusion that the Union did not have good cause to reject the debtor's proposals and that the balance of equities favors rejection of the May 5, 1990 Contract.\n\nV\nFor the reasons set forth herein, the court finds that the debtor has met its burden of proof under § 1113(b) and (c). Its Application will accordingly be granted.\nThis Memorandum constitutes findings of fact and conclusions of law as required by Fed.R.Bankr.P. 7052.\nNOTES\n[1] The Contract allows the debtor to purchase coal from contract miners in varying amounts so long as the active work force exceeds 210 bargaining unit employees. Specifically, during the second and third years of the Contract the debtor is permitted to purchase coal on a daily basis as follows: less than 210 employees0 tons; 211 to 225 employees5 tons per active employee; 226 to 250 employees10 tons per active employee; 251 to 300 employees20 tons per active employee; 301 to 344 employees30 tons per active employee; more than 344 employees no restrictions.\n[2] The debtor's cost consists of a contract price paid the contract miners, which during fiscal year 1990 approximated $20.03 per ton, plus the debtor's preparation costs, including labor and supplies, and royalties. During April and May, 1991, the debtor paid a contract price approximating $20.81 and $19.53 per ton, respectively, to contract miners.\n[3] Coal purchased from contract miners is \"produced\" by the debtor in the sense that prior to sale it must go through the debtor's preparation plant.\n[4] Item 5 is not included in this computation as vacation pay savings are factored into calculations under Items 3 and 6.\n[5] See supra n. 1.\n[6] The record does not establish the number of non-Union mining personnel laid off at the Leatherwood operations.\n[7] The debtor's mining employees consist not only of its bargaining unit employees but also of a substantial number of non-Union employees, including section foremen, maintenance, preparation, shop, and warehouse personnel, and guards.\n[8] The debtor's Exhibit 45 incorrectly states the cost of workers compensation coverage at $2.10 per ton based upon 1,347,861 tons mined in fiscal year 1990. The record establishes that the debtor mined 1,247,318 tons during 1990. (Exhibit 13).\n[9] The debtor's liquidation analysis evidences assets, inclusive of utilities contracts, with a value approximating $32,890,000; debt totalling $35,500,000, which is secured by all assets except a Georgia Pacific lease valued at an estimated $1,354,000; and unsecured claims, liquidated, contingent, and disputed, estimated at $15,942,000. Assigning the undersecured portion of the debtor's secured debt an unsecured status provides the debtor with general unsecured claims estimated at $19,906,000. Cash collateral orders entered by the court directing that the unencumbered Georgia Pacific lease stand as additional collateral to secure any deficit in an $8,000,000 \"Borrowing Base\" secured by designated \"Borrowing Base Assets\" could serve to dilute or eliminate the unencumbered value of this asset. Whether unsecured creditors would, in fact, realize anything upon liquidation is clearly speculative.\n[10] The final Union proposal was made subsequent to commencement of the hearing on the debtor's Application and was admitted into evidence over the debtor's objection. The court rejected an argument of debtor's counsel that language in § 1113(b)(2) providing that the collective bargaining process required under § 1113(b)(1) shall \"end . . . on the date of the hearing . . . [on the application for rejection]\" precluded admission into evidence of the Union's August 12, 1991 counter-proposal.\n[11] The July 22, 1991 proposal is extensive, focusing on all bargaining issues. The court addresses only the issue of the debtor's use of contract miners as this is the fundamental issue which precluded the parties from reaching an agreement.\n[12] Switch Energy, Bud Cornett, and Nally and Hamilton are contract miners from whom the debtor is presently purchasing coal.\n[13] The record indicates that the debtor occasionally purchases an insignificant quantity of coal from third parties for direct shipment in support of its contract obligations.\n[14] This test does nothing more than isolate the factors essential to a debtor's rejection of a collective bargaining agreement as mandated by § 1113(b) and (c).\n[15] Nat'l. Labor Relations Bd. v. Bildisco & Bildisco, 465 U.S. 513, 104 S.Ct. 1188, 79 L.Ed.2d 482 (1984).\n[16] Brotherhood of Railway Airline and Steamship Clerks v. REA Express, Inc., 523 F.2d 164 (2d Cir.1975), cert. denied, 423 U.S. 1073, 96 S.Ct. 855, 47 L.Ed.2d 82 (1976).\n[17] Section 8(e) provides in material part:\n\n(e) Enforceability of contract or agreement to boycott any other employer; exception\nIt shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforceable and void. . . .\n29 U.S.C.A. § 158(e) (West 1973 & Supp.1991).\n[18] Sections 7 and 8(a)(1) provide in material part:\n\nRight of employees as to organization, collective bargaining, etc.\nEmployees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a)(3) of this title.\n29 U.S.C.A. § 157 (West 1973).\n(a) Unfair labor practices by employer\n(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title. . . .\n29 U.S.C.A. § 158(a)(1) (West 1973 & Supp. 1991).\n[19] Mr. Polly has been employed by the debtor since 1965. Although he holds no office with Local No. 188, he is presently secretary of the International Union. Mr. Polly was a representative of the Union's bargaining committee in all post-petition bargaining sessions except the initial session on May 17, 1991.\n\n",
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| E.D. Tennessee | United States Bankruptcy Court, E.D. Tennessee | FB | Tennessee, TN |
1,058,962 | Agee, Hassell, Keenan, Kinser, Koontz, Lemons, Russell | 2005-04-22 | false | stockbridge-v-gemini-air-cargo-inc | Stockbridge | Stockbridge v. Gemini Air Cargo, Inc. | William D. STOCKBRIDGE v. GEMINI AIR CARGO, INC. |
Alexander Y. Thomas (Thomas R. Sheldon; Reed Smith, on briefs), Falls Church, for appellant.
,
Linda M. Jackson (Michael W. Robinson; Venable, on brief), Vienna, for appellee.
| null | null | null | null | null | null | null | null | null | null | 11 | Published | null | <parties id="p-1">
William D. STOCKBRIDGE
<br/>
v.
<br/>
GEMINI AIR CARGO, INC.
</parties><docketnumber id="p-2">
Record No. 041716.
</docketnumber><court id="p-3">
Supreme Court of Virginia.
</court><decisiondate id="p-4">
April 22, 2005.
</decisiondate><attorneys id="p-5">
Alexander Y. Thomas (Thomas R. Sheldon; Reed Smith, on briefs), Falls Church, for appellant.
</attorneys><attorneys id="p-6">
Linda M. Jackson (Michael W. Robinson; Venable, on brief), Vienna, for appellee.
</attorneys><judges id="p-7">
Present: HASSELL, C.J., KEENAN, KOONTZ, KINSER, LEMONS, and AGEE, JJ., and RUSSELL, S.J.
</judges> | [
"611 S.E.2d 600",
"269 Va. 609"
]
| [
{
"author_str": "Russell",
"per_curiam": false,
"type": "010combined",
"page_count": 17,
"download_url": "http://www.courts.state.va.us/opinions/opnscvwp/1041716.pdf",
"author_id": 5944,
"opinion_text": "\n611 S.E.2d 600 (2005)\n269 Va. 609\nWilliam D. STOCKBRIDGE\nv.\nGEMINI AIR CARGO, INC.\nRecord No. 041716.\nSupreme Court of Virginia.\nApril 22, 2005.\n*601 Alexander Y. Thomas (Thomas R. Sheldon; Reed Smith, on briefs), Falls Church, for appellant.\nLinda M. Jackson (Michael W. Robinson; Venable, on brief), Vienna, for appellee.\nPresent: HASSELL, C.J., KEENAN, KOONTZ, KINSER, LEMONS, and AGEE, JJ., and RUSSELL, S.J.\nRUSSELL, Senior Justice.\nThis appeal involves an action by a stockholder and former employee of a Delaware corporation to recover damages for breach of the corporation's contract to repurchase his shares. The precise question before us is whether the trial court erred in granting summary judgment in the corporation's favor by relying on Section 160 of the Delaware *602 General Corporation Law, Del.Code Ann. Tit. 8, § 160(a) (\"Section 160\"), which prohibits the repurchase of a corporation's own stock while its capital is impaired. It is undisputed that because the controversy involves the internal affairs of the corporation, the laws of Delaware, the state of incorporation, apply.\n\nFacts and Proceedings\nBecause the trial court granted summary judgment, the facts will be summarized in the light most favorable to the non-moving party, William D. Stockbridge. Renner v. Stafford, 245 Va. 351, 353, 429 S.E.2d 218, 220 (1993). Stockbridge is a founder, former president and former chief executive officer of Gemini Air Cargo, Inc. (Gemini), a Delaware corporation having its principal place of business in Virginia. Stockbridge served as chairman of Gemini's board of directors until March 29, 2002, when Gemini terminated his employment without cause. He owned 10,376 shares of its voting common stock when this action was filed. All the shares had been issued in 1999 at a par value of $503.11 per share.\nGemini had entered into a stockholder's agreement with Stockbridge and others when the shares were issued in 1999. The agreement provided, in pertinent part:\nIn the event of a Termination Without Cause ... for a period of sixty (60) days following the date of such Termination Without Cause, such Stockholder shall have the option to sell ... to the Company all, but not less than all, of the Restricted Shares and Vested Options ... held by such Stockholder ... (\"Put Right\"). The Put Right shall be exercised in each case by a written notice (\"Put Notice\") to the Company given in accordance with Section 8(f) of this Agreement on or prior to the last date on which the Put Right may be exercised by such Stockholder.\nThe agreement also provided that a stockholder's \"Put Right\" would \"not be exercisable\" if the board of directors determined, in good faith, that the repurchase of shares was \"prohibited ... by applicable law\" or would constitute a breach of any loan agreement to which the corporation was a party or if \"the Company is not otherwise able to obtain the consent of its senior lender to such repurchase.\" The agreement termed these conditions \"Repurchase Disabilities.\"\nThe agreement provided that any repurchase of shares pursuant to the \"Put Right\" was to take place within 60 days of the receipt of the \"Put Notice\" by Gemini, but that the time for performance would be extended pending receipt of any required governmental approval, pending determination of the \"Put Purchase Price\" or pending resolution of any \"Repurchase Disability.\" Gemini was required to give the stockholder notice in writing if it determined that a \"Repurchase Disability\" existed and to send the stockholder a \"Reinstatement Notice\" as soon as practicable after the disability was removed.\nOn May 23, 2002, Stockbridge's counsel sent a letter to Gemini exercising his \"Put Right\" to sell his 10,376 shares to the corporation. Receiving no response, Stockbridge's counsel wrote again, on September 16, 2002, requesting a reply from Gemini and expressing his opinion that the stock had the value of $503.11 per share when he exercised his \"Put Right.\" Again, Gemini made no response but referred the matter to Gregory S. Ledford, a member of its board of directors. On October 10, 2002, Stockbridge's counsel wrote to Gemini asserting a claim for $5,220,269.36, based on Stockbridge's valuation of his shares. Ledford responded, for Gemini, that the corporation did not agree with the valuation asserted by Stockbridge but that it was \"willing and will continue to cooperate with respect to determination of Fair Market Value.\"\nStockbridge's counsel wrote again to Ledford on December 11, 2002, on January 6, 2003 and on January 15, 2003, requesting that the determination of the fair market value of the stock be made by an independent appraiser, pursuant to the terms of the stockholder's agreement, and suggesting such an appraiser by name together with a statement of his qualifications. Ledford never responded in writing, but left a voice mail message for Stockbridge's counsel indicating agreement to the appraiser counsel had suggested. Gemini, however, never cooperated with the appraiser and refused to furnish him *603 with the data needed for his evaluation of the stock.\nLater, Gemini attempted to revoke its agreement to submit the valuation issue to the appraiser. Stockbridge brought this action on June 3, 2003, by motion for judgment to recover damages for breach of contract. After suit was filed, Gemini, for the first time, sent Stockbridge a \"Disability Notice\" pursuant to the stockholder's agreement asserting that the corporation was \"under significant financial distress\" and that \"at all times since Mr. Stockbridge exercised his Put Right, the Company has been prohibited by the terms of the senior credit facility from repurchasing any equity securities.\"\nGemini responded to the motion for judgment by filing a plea in bar, asserting that any repurchase of its stock would violate Section 160(a) and that it would also be prohibited by the terms of the stockholder's agreement because it would breach the terms of a loan agreement. The plea asserted that those conditions constituted a \"Repurchase Disability\" under the terms of the stockholder's agreement and that such a disability \"precludes this action for specific performance of the Agreement.\"[*]\nAt a hearing on the plea in bar, Gemini called a single witness, its current chief operating officer, who testified that from the date of Stockbridge's \"Put Notice\" until the time of the hearing, Gemini's financial records showed a negative capital surplus. Gemini argued that this was dispositive of the case because of the effect of Section 160, which provides, in pertinent part:\n[N]o corporation shall ... [p]urchase or redeem its own shares of capital stock ... when the capital of the corporation is impaired or when such purchase or redemption would cause any impairment of the capital of the corporation.\nThe Supreme Court of Delaware has held that a repurchase impairs capital \"if the funds used in the repurchase exceed the amount of the corporation's `surplus,' defined... to mean the excess of net assets over the par value of the corporation's issued stock.\" Klang v. Smith's Food & Drug Ctrs., 702 A.2d 150, 153 (Del.1997).\nAt the hearing on the plea in bar, Stockbridge conceded that the corporation's books showed a capital impairment but argued that the books did not tell the whole story. Relying on Klang, he pointed out that under Delaware law, \"the books of a corporation do not necessarily reflect the current values of its assets and liabilities,\" id. at 154, and that he was entitled to try the issue of Gemini's true financial condition before a jury.\nAt the conclusion of the hearing, the trial court made a finding that \"there was a negative capital surplus shown by the evidence\" but requested briefs as to the legal conclusion to be drawn. After reviewing the briefs of counsel, the court, by letter opinion, overruled the plea in bar on the ground that it was essentially a plea of the general issue and that such pleas were abolished by our Rule 3:5. The case was set for a jury trial and Gemini was directed to file its grounds of defense.\nGemini then filed a motion for summary judgment asserting the same grounds as those raised by its overruled plea in bar. At a hearing on the motion for summary judgment, Stockbridge pointed out that discovery had demonstrated bad faith on Gemini's part: Notwithstanding its claim that its capital was at all pertinent times impaired, it had allowed another former employee to exercise his \"Put Right\" five months after Stockbridge had given his \"Put Notice,\" repurchasing that employee's stock at $503 per share, substantially the valuation Stockbridge claimed; Gemini had rewarded its officers with substantial bonuses in 2003; Gemini's board had never asserted any capital impairment until after suit was filed, but had instead offered to \"continue to cooperate with respect to the determination of Fair Market Value.\"\nStockbridge also contended that Gemini had waived any defenses it might have had *604 under Delaware law or under the stockholder's agreement by failing to raise them timely and, instead, pretending to consider his \"Put Notice\" for over a year. He pointed out that the minutes of Gemini's board showed no record of any consideration of his \"Put Notice\" at all and that Ledford, the director to whom the matter was referred, had testified that he could not recall any discussion of \"capital impairment\" at any board meetings before suit was filed.\nThe court stated that it had made a finding \"based on the evidence at the plea in bar hearing, that the Defendant had a negative capital surplus on May 23, 2002, which was the put date ... and continuing up to the present. . . .\" Relying on the applicable law of Delaware, the court equated that finding with a determination that Gemini's capital had been impaired. The court therefore held that \"while the contract is not void it is presently unenforceable under § 160 of the applicable Delaware Code\" and granted Gemini's motion for summary judgment. We awarded Stockbridge this appeal.\n\nAnalysis\n\nA. Summary Judgment\nThe trial court made a finding of fact at the hearing on the plea in bar that was based entirely on the state of affairs shown on the face of the corporation's books. The Delaware courts, in applying Section 160, have held that the books of a corporation may not accurately reflect its true financial condition. The Supreme Court of Delaware, in Klang, noted that unrealized appreciation or depreciation could readily render book numbers inaccurate. 702 A.2d at 154. Further, it is clear that an adverse party has the right to question whether the corporation's statement of its financial condition was made in good faith. An allegation of fraud or bad faith in a corporation's representations of its financial condition presents an issue of fact, not a question of law.\nGemini asserted in the trial court and on appeal that Stockbridge had conceded, in arguments before the trial court, that Gemini had a negative capital surplus. The trial court observed, in ruling on the motion for summary judgment, that Stockbridge had made such a concession. We do not so read the record. Stockbridge indeed conceded that the corporation's books showed a negative capital surplus, but he at all times contended that the books were not a verity. Stockbridge argued that the burden was on Gemini to prove, as an affirmative defense, that its capital was impaired and that he had a right to a jury trial on the issue.\nFurther, the court's reliance, in granting summary judgment based on its finding of fact made during the plea in bar hearing was inconsistent with its final ruling on the plea in bar. The trial court overruled the plea in bar on the ground that it constituted nothing more than a plea of the general issue and that such pleas had been abolished by our Rule 3:5. At common law, a plea of the general issue was a traverse, a general denial of the plaintiff's whole declaration or an attack upon some fact the plaintiff would be required to prove in order to prevail on the merits. It had the effect of challenging the plaintiff to go to trial and prove his case. See Dudley v. Carter Red Ash Colliers Co., 125 Va. 701, 705, 100 S.E. 466, 467 (1919); Big Sandy & C.R. Co. v. Ball, 133 Va. 431, 437-38, 113 S.E. 722, 725 (1922); Kent Sinclair & Leigh B. Middleditch, Jr., Virginia Civil Procedure § 9.8 (4th ed.2003). Thus, after making its finding with respect to Gemini's financial condition at the hearing on the plea in bar, the trial court negated that finding by ruling, in effect, that Gemini's defenses were not properly raised by a plea in bar, but instead, were proper subjects for determination by a jury.\nWe have repeatedly held that summary judgment is a drastic remedy, available only where there are no material facts genuinely in dispute. Smith v. Smith, 254 Va. 99, 103, 487 S.E.2d 212, 215 (1997); Slone v. General Motors Corp., 249 Va. 520, 522, 457 S.E.2d 51, 52 (1995). It should not be used to short-circuit litigation by deciding disputed facts without permitting the parties to reach a trial on the merits. Renner, 245 Va. at 352, 429 S.E.2d at 219. For these reasons, we conclude that the trial court erred in granting summary judgment. Because the case must be remanded, we will discuss other *605 issues that may affect further proceedings in the trial court.\n\nB. Corporation's Standing to Assert Section 160\nStockbridge argues here, as he did in the trial court, that the Delaware Legislature never intended Section 160 to benefit corporations. He points to the Delaware court's language in Klang: \"It is helpful to recall the purpose behind Section 160. The General Assembly enacted the statute to prevent boards from draining corporations of assets to the detriment of creditors and the long-term health of the corporation.\" 702 A.2d at 154. An authoritative treatise states flatly: \"The corporation itself cannot have the purchase declared illegal, in states where such a purchase is allowable under some conditions, even if injured shareholders or creditors might have that right.\" 6A William M. Fletcher, Cyclopedia of the Law of Private Corporations § 2861, at 477 (perm. ed.1997 rev. vol.). See also Askanase v. Fatjo, 130 F.3d 657, 675 (5th Cir.1997) (refusing to find a violation of Delaware's § 160 even where a corporation's capital was impaired because to do so would not be within the statutory purpose); In re Reliable Mfg. Corp., 703 F.2d 996, 1001 (7th Cir.1983) (the statute's underlying purpose should be considered in determining whether to apply it); Minnelusa Co. v. Andrikopoulos, 929 P.2d 1321, 1324 (Colo. 1996) (\"the validity of a corporate stock repurchase may be attacked only by persons who are injured or prejudiced thereby and not by the corporation itself\").\nThe foregoing authorities represent a clear majority view in jurisdictions applying Delaware's Section 160 or similar laws adopted by other states. Nevertheless, Gemini points out that the cited cases all address situations in which the repurchase of stock had been concluded and was sought to be undone at the behest of the corporation. Gemini argues that in the present case, the corporation is relying on Section 160 only in order to protect its directors from being compelled to do, or penalized for their failure to do, an unlawful act that would subject them to personal liability under Delaware law, specifically Section 174(a) of Title 8 of the Delaware Code Annotated.\nNotwithstanding the persuasiveness of the authorities, we are unwilling to adopt an inflexible rule that a corporation may not in any circumstances assert Section 160, or similar laws, to avoid a stock repurchase while its capital is impaired. Directors have a fiduciary duty to manage the corporation's affairs with the utmost good faith in the best interests of all its shareholders and of the long-term health of the corporation itself. Whether they have done so in a particular case is a question of fact. We hold that Gemini may avail itself of Section 160 as an excuse for non-performance of its contract with Stockbridge if it carries its burden of proving, as an affirmative defense, that its capital was impaired at all pertinent times. Gemini may not avail itself of this defense, however, if its capital impairment was procured by bad faith on the part of its directors, officers or agents, or if they acted in bad faith with respect to Stockbridge's \"Put Right.\" The burden of proof on the issue of bad faith is on Stockbridge.\n\nC. Waiver\nThe defense that may be afforded by Section 160 is created by operation of law, is independent of the terms of the contract between the parties and cannot be waived. Gemini, however, also asserts defenses based upon the provisions of the stockholder's agreement: The \"Repurchase Disabilities\" which it invoked after Stockbridge had filed this suit. In its pleadings, Gemini relied on two such disabilities: (1) that the repurchase was \"prohibited by applicable law\" (Section 160) and (2) that it would constitute a breach of a loan agreement to which Gemini was a party. Either of these conditions, if proved, would have afforded Gemini an excuse for non-performance under the terms of the agreement.\nWaiver arises from the intentional relinquishment of a known right. Virginia Tech. v. Interactive Return Service, Inc., 267 Va. 642, 651-52, 595 S.E.2d 1, 6 (2004). The \"disability notice\" given by Gemini to Stockbridge mentioned only the second of its contract defenses, the effect of \"the terms of the *606 senior credit facility,\" presumably referring to a loan agreement. Thus its first contract defense, the effect of Section 160 purely as a contract defense, was waived by Gemini's failure to assert it as a \"Repurchase Disability\" pursuant to the terms of the stockholder's agreement.\nGemini also waived its contract defense that a repurchase would violate the terms of a loan agreement by its failure to make any timely assertion of it. The facts leading to this conclusion are undisputed.\nGenerally, corporate directors have an affirmative duty to become acquainted with the corporation's business so as to enable themselves to carry out their fiduciary obligations. 3 Fletcher, supra § 840, at 199. A failure to make reasonable inquiry or inadequate monitoring by a director may constitute a breach of duty. 3A Fletcher, supra § 1034.80, at 25. Thus, directors are presumed to have a reasonable degree of knowledge of the facts plainly appearing on the face of the corporate records. Id. § 1060, at 99.\nBecause the board of directors of a Delaware corporation has the legal responsibility to manage its business for the benefit of the corporation and its shareholders with \"due care, good faith, and loyalty,\" Malone v. Brincat, 722 A.2d 5, 10 (Del.1998), Gemini's board was at all times charged with constructive knowledge of its general financial condition, including knowledge of the terms of any loan agreements to which the corporation was a party. Its duty under the stockholder's agreement was either to repurchase Stockbridge's shares within 60 days of receipt of his \"Put Notice\" or, if the board determined in good faith that a repurchase disability existed, to give him a \"Disability Notice\" and thereafter to repurchase his stock \"as soon as reasonably practicable after all Repurchase Disabilities cease[d] to exist.\"\nBecause the agreement provided no deadline for the issuance of a \"Disability Notice,\" we interpret its provisions to require that such notice be issued within a reasonable time after the operative facts became known to the board. When it received Stockbridge's \"Put Notice,\" the board had constructive notice of the corporation's affairs and the terms of any loan agreements to which it was a party. See Skouras v. Admiralty Enterprises, Inc., 386 A.2d 674, 682 (Del.Ch.1978) (while a member of its board, a director is not only in a position to have first-hand knowledge of the corporation's transactions but also has a fiduciary duty to investigate its affairs). The board was thus deemed to be immediately aware of any \"Repurchase Disability\" then existing. It was then incumbent upon the board, under its fiduciary duty to the corporation and all its stockholders, as well as to Stockbridge under the stockholder's agreement, within a reasonable time to give Stockbridge notice of any disability upon which it intended to rely. Instead, Gemini lapsed into silence for five months and then, without asserting any \"Repurchase Disability,\" offered to cooperate with Stockbridge in ascertaining the fair market value of his stock in order that the repurchase could proceed. Later, Gemini, through its designated agent, agreed to the selection of an independent appraiser for that purpose but failed to perform that agreement and remained silent for another seven months until Stockbridge filed this action, when Gemini, for the first time, asserted a \"Repurchase Disability.\"\nTwo elements are necessary to establish waiver: Knowledge of the facts basic to the exercise of the right and the intent to relinquish the right. Virginia Tech, 267 Va. at 651-52, 595 S.E.2d at 6. An implied waiver must be established by clear and convincing evidence. Baumann v. Capozio, 269 Va. 356, 358, 611 S.E.2d 597, 600 (this day decided). Here, that standard is met. Because of the board's constructive knowledge of the corporation's affairs, it had knowledge of the facts basic to the exercise of its right to invoke a \"Repurchase Disability.\" Because the board also had the fiduciary duty to act with fidelity to the interests of the corporation and its stockholders, see Malone, 722 A.2d at 7, 10-11, and failed to invoke a \"Repurchase Disability\" for their protection for over a year after receiving Stockbridge's \"Put Notice,\" it will be presumed to have intended to relinquish its right to do so. Accordingly, we hold that Gemini waived its contractual defenses under the stockholder's agreement.\n\n\n*607 Conclusion\n\nFor the foregoing reasons, we will reverse the judgment of the trial court and remand the case for further proceedings consistent with this opinion.\nReversed and remanded.\nNOTES\n[*] Stockbridge pointed out at the hearing on the plea in bar that he was not seeking specific performance of the agreement, but was seeking damages at law for its breach. Gemini abandoned its claim that the \"repurchase disability\" was a bar to Stockbridge's recovery and elected to proceed on the sole claim that Delaware law barred the action.\n\n",
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| Supreme Court of Virginia | Supreme Court of Virginia | S | Virginia, VA |
658,393 | Arnold, Beam, Bogue, Richard | 1993-12-08 | false | united-states-v-soeung-chhunn | null | United States v. Soeung Chhunn | UNITED STATES of America, Appellee, v. Soeung CHHUNN, Appellant | Peter A. Cahill, Wayzata, MN, for appellant., D. Gerald Wilhelm, Asst. U.S. Atty., Minneapolis, MN, for appellee. | null | null | null | null | null | null | null | Submitted Nov. 10, 1993. | null | null | 14 | Published | null | <parties id="b173-10">
UNITED STATES of America, Appellee, v. Soeung CHHUNN, Appellant.
</parties><br><docketnumber id="b173-13">
No. 93-2777.
</docketnumber><br><court id="b173-14">
United States Court of Appeals, Eighth Circuit.
</court><br><otherdate id="b173-15">
Submitted Nov. 10, 1993.
</otherdate><br><decisiondate id="b173-16">
Decided Dec. 8, 1993.
</decisiondate><br><attorneys id="b174-14">
<span citation-index="1" class="star-pagination" label="108">
*108
</span>
Peter A. Cahill, Wayzata, MN, for appellant.
</attorneys><br><attorneys id="b174-15">
D. Gerald Wilhelm, Asst. U.S. Atty., Minneapolis, MN, for appellee.
</attorneys><br><judges id="b174-16">
Before RICHARD S. ARNOLD, Chief Judge, BEAM, Circuit Judge, and BOGUE,
<a class="footnote" href="#fn*" id="fn*_ref">
*
</a>
Senior District Judge.
</judges><div class="footnotes"><div class="footnote" id="fn*" label="*">
<a class="footnote" href="#fn*_ref">
*
</a>
<p id="b174-12">
The Hon. Andrew W. Bogue, Senior United States District Judge for the District of South Dakota, sitting by designation.
</p>
</div></div> | [
"11 F.3d 107"
]
| [
{
"author_str": "Arnold",
"per_curiam": false,
"type": "010combined",
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"opinion_text": "11 F.3d 107\n UNITED STATES of America, Appellee,v.Soeung CHHUNN, Appellant.\n No. 93-2777.\n United States Court of Appeals,Eighth Circuit.\n Submitted Nov. 10, 1993.Decided Dec. 8, 1993.\n \n Peter A. Cahill, Wayzata, MN, for appellant.\n D. Gerald Wilhelm, Asst. U.S. Atty., Minneapolis, MN, for appellee.\n Before RICHARD S. ARNOLD, Chief Judge, BEAM, Circuit Judge, and BOGUE,* Senior District Judge.\n RICHARD S. ARNOLD, Chief Judge.\n \n \n 1\n The defendant in this case, Soeung Chhunn, was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. Sec. 922(g) and Sec. 924(a)(2). On appeal, he argues that the handgun the police seized from his car was inadmissible at trial, because the police lacked a reasonable and articulable suspicion for stopping him. He also contends that the police were motivated, at least in part, by his race when they decided to stop him. The Magistrate Judge1 recommended denial of Chhunn's motion to suppress the handgun, holding that the police did have a reasonable and articulable suspicion when they stopped Chhunn's car. The District Court2 agreed, and so do we.\n \n I.\n \n 2\n On September 13, 1992, three Asian males wearing ski masks and dark gloves robbed the Broadway Pizza restaurant in Apple Valley, Minnesota. The three men forced the manager of the restaurant into a recreational vehicle, and threatened him with a sawed-off shotgun and a handgun. After being threatened, the manager turned over the money in the restaurant's safe.\n \n \n 3\n The Apple Valley police investigated the robbery. In the course of their investigation, they discovered that Chhunn, an Asian male and a former employee of the restaurant, had been convicted of an armed robbery of a convenience store near Rochester, Minnesota, in 1991. During that robbery, Chhunn had fired a sawed-off shotgun three times. After obtaining this information, the Apple Valley police began to focus their investigation on Chhunn.\n \n \n 4\n Shortly after the Broadway Pizza robbery, the police placed Chhunn under surveillance. On October 2, 1992, a team of six cars began following Chhunn, when he left his home in Rochester. They followed him to his place of employment, Domino's Pizza, and then to a local park where he met with twenty to thirty Asian men. The men were wearing red, a color which symbolizes the Red Cambodian Bloods, an Asian street gang.\n \n \n 5\n Chhunn left the park, and the police followed him to two residences where he picked up two other Asian males and left Rochester heading north on the highway. While following Chhunn, the officers noticed that he appeared to be engaging in counter-surveillance driving. For example, Chhunn pulled off the road for a few seconds, waited for cars to go by, and then pulled back on the road. When Chhunn entered the city of Rosemount, he began driving into cul-de-sacs and other roads, making it difficult for the officers to follow him and maintain their secrecy at the same time. During this time, the officers also learned that, that night, in Rochester, someone had stolen a recreational vehicle similar to the one used in the Broadway Pizza robbery.\n \n \n 6\n In order to prevent detection, Sergeant Kent Switzer ordered the surveillance team to disperse. One of the team members, Officer James Eagle, pulled into the entrance of a camp, turned his headlights off, and backed his unmarked car into a single-lane, dead-end road.\n \n \n 7\n Just after Eagle pulled onto this road, he saw the defendant's white Chevette enter the park. Chhunn drove directly down the dead-end road toward Eagle's car. His headlights illuminated Eagle's car. Eagle feared for his safety, because he knew about Chhunn's prior arrest for armed robbery and the second robbery leading to that evening's surveillance. In addition, because Eagle was in a single-lane, dead-end road, he had no avenue of escape. Thus, he radioed for help and began backing his car down the road, away from Chhunn, at approximately twenty to thirty miles per hour.\n \n \n 8\n Sergeant Switzer responded to Eagle's request for help, radioed for uniformed assistance, and blocked the defendant's car with his squad car. He then ordered Chhunn and the passengers out of the car at gunpoint. By the time Switzer arrived, Chhunn had turned his car around and was trying to leave the camp.\n \n \n 9\n Other officers joined Eagle and Switzer and took the passengers aside. Eagle looked inside the car and saw a full-face ski mask in the rear passenger area and a pair of dark colored gloves on the dashboard. He asked Chhunn what the mask was for, and Chhunn said he used it for playing football in the cold. The temperature that evening was warm.\n \n \n 10\n After this brief discussion with Chhunn, Eagle made a preliminary search of the car. He felt a hard object in the driver's seat which was consistent with the size and shape of a weapon. He then lifted up the fabric seat cover and found a handgun concealed underneath it. At this point, the officers secured the car and obtained a search warrant.\n \n II.\n \n 11\n Chhunn argues that police lacked a reasonable articulable suspicion for stopping him and that, therefore, the gun the police found as a result of the stop is \"fruit of the poisonous tree\" and should have been suppressed. We review a District Court's denial of a motion to suppress for clear error. United States v. Williams, 981 F.2d 1003, 1005 (8th Cir.1992). When applying this standard, we give particular deference to the fact finder, who had the opportunity to observe the demeanor and credibility of the witnesses. United States v. Wallraff, 705 F.2d 980, 987 (8th Cir.1983).\n \n \n 12\n The Fourth Amendment protects citizens from unreasonable searches and seizures. Under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), police officers may briefly detain and ask questions of people whom they reasonably suspect of criminal activity. Id. at 20-23, 88 S.Ct. at 1979-80. This rationale extends to stops of automobiles, when the police have a reasonable suspicion that the occupants are violating the law. United States v. Hensley, 469 U.S. 221, 226, 105 S. Ct. 675, 679, 83 L. Ed. 2d 604 (1985).\n \n \n 13\n The standard for reasonable suspicion is less demanding than that for probable cause; it requires only \"particularized, objective facts which, taken together with rational inferences from those facts, reasonably warrant suspicion that a crime is being committed.\" United States v. Martin, 706 F.2d 263, 265 (8th Cir.1983). To decide whether the police met the reasonable-suspicion standard, we look to all the circumstances and the collective knowledge of the officers involved in the stop. United States v. Cortez, 449 U.S. 411, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981); Wallraff, supra, at 988. The facts the police may consider include those based on their own observations, police reports, and patterns of particular types of lawbreakers. Cortez, supra, 449 U.S. at 418, 101 S. Ct. at 695; Wallraff, supra, at 989. Moreover, when deciding whether to stop someone, the police may rely on facts which, under other circumstances, might give an appearance of innocence. Wallraff, supra, at 988.\n \n \n 14\n Here, the police had ample reason for a Terry stop. Chhunn had a prior armed-robbery conviction and was a suspect in another recent armed robbery. He was a former employee of the Broadway Pizza restaurant and was of the same origin as the robber in that case. Moreover, both the robbery for which he was convicted and the one for which he was a suspect involved sawed-off shotguns.\n \n \n 15\n On the night in question, Chhunn was under surveillance as a suspect for the Broadway Pizza robbery. During that time, the police observed him meet with members of a suspected street gang and pick up two other Asian males; the police knew that three Asian males had committed the pizza robbery. Chhunn attempted to evade the surveillance by pulling off and on the road and into cul-de-sacs. Further, at some point during the evening, the police learned that someone had stolen a recreational vehicle that night which was similar to the one used in the pizza robbery, and that the vehicle was stolen in Chhunn's hometown.\n \n \n 16\n Moreover, when Eagle attempted to avoid detection by pulling into the camp entrance, Chhunn followed him and appeared to drive straight at him down a single-lane, dead-end street. At the time when Chhunn was driving straight at Eagle, Eagle knew that Chhunn might have spotted members of the surveillance team, and that Chhunn had fired a sawed-off shotgun three times in the armed robbery he had committed. All of these factors combined to create a reasonable suspicion sufficient for Eagle to request help and to stop Chhunn's car. The fact that Chhunn was Asian was not used improperly. It was used not as a stereotype, but only as one relevant fact from which reasonable inferences could be made.\n \n \n 17\n Affirmed.\n \n \n \n *\n The Hon. Andrew W. Bogue, Senior United States District Judge for the District of South Dakota, sitting by designation\n \n \n 1\n The Honorable J. Earl Cudd, United States Magistrate Judge for the District of Minnesota\n \n \n 2\n The Honorable James M. Rosenbaum, United States District Judge for the District of Minnesota\n \n \n ",
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"opinion_id": 658393
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]
| Eighth Circuit | Court of Appeals for the Eighth Circuit | F | USA, Federal |
366,877 | null | 1979-05-16 | false | united-states-v-mckenna | null | United States v. McKenna | null | null | null | null | null | null | null | null | null | null | null | null | 0 | Published | null | null | [
"599 F.2d 1058"
]
| [
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": "http://bulk.resource.org/courts.gov/c/F2/599/599.F2d.1058.78-2245.html",
"author_id": null,
"opinion_text": "599 F.2d 1058\n U. S.v.McKenna\n No. 78-2245\n United States Court of Appeals, Ninth Circuit\n 5/16/79\n \n 1\n N.D.Cal.\n \n AFFIRMED\n ",
"ocr": false,
"opinion_id": 366877
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| Ninth Circuit | Court of Appeals for the Ninth Circuit | F | USA, Federal |
74,985 | Birch, Tjoflat, Vining | 2000-12-28 | false | sandy-skurstenis-v-james-jones | null | Sandy Skurstenis v. James Jones | Sandy SKURSTENIS, Plaintiff-Appellant, v. James JONES, Sheriff, Wayne Watts, Captain, Individually, Et Al., Defendants-Appellees; Sandy Skurstenis, Plaintiff-Appellee, v. James Jones, Sheriff, T.O. Richey, Individually, Defendants-Appellants | Jeffrey William Bennitt, Robyn Graham Bufford, Bennitt & Bufford, Birmingham, AL, for Skurstenis., Frank C. Ellis, Jr., Wallace, Ellis, Fowler & Head, Columbiana, AL, K. Claire White, Ferguson, Frost & Dobson, LLP, Birmingham, AL, for Jones, Watts, Shelby County Baptist Hosp., Smitherman and Blankenship., Dorothy A. Powell, Mark W. Lee, Parsons, Lee & Juliano, P.C., Birmingham, AL, for Richey. | null | null | null | null | null | null | null | null | null | null | 1 | Published | null | <parties id="b710-11">
Sandy SKURSTENIS, Plaintiff-Appellant, v. James JONES, Sheriff, Wayne Watts, Captain, individually, et al., Defendants-Appellees. Sandy Skurstenis, Plaintiff-Appellee, v. James Jones, Sheriff, T.O. Richey, individually, Defendants-Appellants.
</parties><br><docketnumber id="b710-17">
Nos. 00-10122, 00-11469 and 00-10603.
</docketnumber><br><court id="b710-18">
United States Court of Appeals, Eleventh Circuit.
</court><br><decisiondate id="b710-19">
Dec. 28, 2000.
</decisiondate><br><attorneys id="b712-4">
<span citation-index="1" class="star-pagination" label="680">
*680
</span>
Jeffrey William Bennitt, Robyn Graham Bufford, Bennitt & Bufford, Birmingham, AL, for Skurstenis.
</attorneys><br><attorneys id="b712-5">
Frank C. Ellis, Jr., Wallace, Ellis, Fowler & Head, Columbiana, AL, K. Claire White, Ferguson, Frost & Dobson, LLP, Birmingham, AL, for Jones, Watts, Shelby County Baptist Hosp., Smitherman and Blankenship.
</attorneys><br><attorneys id="b712-6">
Dorothy A. Powell, Mark W. Lee, Parsons, Lee & Juliano, P.C., Birmingham, AL, for Richey.
</attorneys><br><judges id="b712-8">
Before TJOFLAT and BIRCH, Circuit Judges, and VINING
<a class="footnote" href="#fn*" id="fn*_ref">
*
</a>
, District Judge.
</judges><div class="footnotes"><div class="footnote" id="fn*" label="*">
<a class="footnote" href="#fn*_ref">
*
</a>
<p id="b712-11">
Honorable Robert L. Vining, Jr., U.S. District Judge for the Northern District of Georgia, sitting by designation.
</p>
</div></div> | [
"236 F.3d 678"
]
| [
{
"author_str": "Vining",
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"type": "010combined",
"page_count": 7,
"download_url": "http://www.ca11.uscourts.gov/opinions/ops/200010122.MAN.pdf",
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"opinion_text": " Sandy SKURSTENIS, Plaintiff-Appellant,\n\n v.\n James JONES, Sheriff, Wayne Watts, Captain, individually, et al., Defendants-Appellees.\n\n Sandy Skurstenis, Plaintiff-Appellee,\n\n v.\n James Jones, Sheriff, T.O. Richey, individually, Defendants-Appellants.\n\n Nos. 00-10122, 00-11469 and 00-10603.\n\n United States Court of Appeals,\n\n Eleventh Circuit.\n Dec. 28, 2000.\n\nAppeals from the United States District Court for the Northern District of Alabama.(No. 98-02295-CV-AR-\nS), William M. Acker, Jr., Judge.\nBefore TJOFLAT and BIRCH, Circuit Judges, and VINING*, District Judge.\n\n VINING, District Judge:\n\n These consolidated appeals involve the constitutionality of two strip searches performed on a detainee\nwho had been arrested for driving under the influence of alcohol. The first search, for weapons and\n\ncontraband, occurred when the detainee was booked into the jail and was conducted by a female deputy; the\nsecond search, for lice, took place the following morning and was conducted by a male nurses assistant. The\ndistrict court held that both searches were unconstitutional but that the sheriff and deputy sheriff were entitled\n\nto qualified immunity with respect to the initial search; the district court further held that neither the sheriff\nnor the nurses assistant was entitled to qualified immunity with respect to the second search. Concluding that\nboth searches were constitutional, we affirm in part, albeit on different grounds, and reverse in part.\n\n I. BACKGROUND\n\n On the evening of May 8, 1998, a Shelby County, Alabama, deputy sheriff arrested Sandy Skurstenis\nfor driving under the influence of alcohol. Her blood alcohol registered .18 on the deputy's portable\n\nBreathalyzer and registered .15 on an intoxilyzer test administered shortly thereafter. At the time of her\narrest, Skurstenis had a .38 special handgun, for which she had an expired permit, in the floorboard of her car.\n\n After her arrest, Skurstenis was taken to the Shelby County Jail, where, because of her blood alcohol\n\n\n *\n Honorable Robert L. Vining, Jr., U.S. District Judge for the Northern District of Georgia, sitting by\ndesignation.\n\flevel, she was to remain until around 11:00 a.m. the following morning.1 After being booked into the jail,\n\nSkurstenis was taken to a restroom adjacent to the booking area by Deputy Stacy Blankenship, a female\nofficer. Skurstenis was told to disrobe, to turn and face the wall, and to squat and cough. After doing this,\n\nshe was given a jail uniform, was escorted by Deputy Jason Smitherman through an area where other female\n\ninmates were sleeping, and was placed in a solitary cell.\n\n The next morning, at approximately 10:30 a.m., Skurstenis was instructed to go to the infirmary,\nwhere she encountered three other female inmates and one male, T.O. Richey, a nurses assistant,2 employed\nby the Shelby Baptist Medical Center. Richey worked part-time at the jail pursuant to a contract between the\nsheriff's office and the medical center. When he was finished with the other inmates, Richey asked them to\n\nleave and then informed Skurstenis that pursuant to the jail's policy, he was required to run certain tests on\n\nher. After Skurstenis signed a consent form, Richey took some blood samples from her and then told her to\npull her pants down so that he could check for lice. Richey ran his fingers through the hair on her head and\nalso through her pubic hair. At no time did he touch her genitalia. When the examination was completed,\n\nSkurstenis left the infirmary and a short time thereafter was discharged from the jail and left with her\nhusband, who had come to get her.\n Skurstenis subsequently filed this action against Sheriff James Jones, Chief Jailer Captain Wayne\n\nWatts, Deputies Jason Smitherman and Stacy Blankenship, and T.O. Richey in their individual capacities,\nand asserted claims under 42 U.S.C. § 1983 for constitutional violations3 and under state law for invasion of\nprivacy, assault, and battery.4\n In ruling on the defendants' motions for summary judgment, the district court granted summary\n\n\n 1\n Individuals arrested for driving under the influence cannot be released on bond but must be detained\nin jail for a number of hours, depending on the degree of intoxication. Alabama Code § 31-5A-191\n(1975).\n 2\n His official title is \"multi functional technician.\"\n 3\n In her complaint Skurstenis alleged that her Fourth and Fourteenth Amendment rights were violated.\nSince she did not contend that any procedural due process rights were violated, the district court correctly\nanalyzed her claims as being under only the Fourth Amendment. The Supreme Court has held that, where\nan enumerated constitutional right specifically applies to a claimed violation, the claim should be\nanalyzed only as a possible violation of that enumerated right, not under the generalized notion of\nsubstantive due process. Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).\n 4\n Skurstenis also sued Shelby County and Shelby Baptist Medical Center. The district court, however,\ndismissed Skurstenis's claims against those entities, and those dismissals are not challenged in this appeal.\n\fjudgment to Captain Watts and Deputy Smitherman on the basis that they had no real connection to the strip\n\nsearch that occurred when Skurstenis was booked into the jail and that her complaint, therefore, failed to state\n\na claim against them. The district court further held that the initial strip search violated the Skurstenis's\nconstitutional rights but that Sheriff Jones and Deputy Blankenship were entitled to qualified immunity.\n\nFinally, the district court held that the infirmary search violated Skurstenis's constitutional rights, that Sheriff\n\nJones was not entitled to qualified immunity, that Richey had no standing to assert qualified immunity, and\nthat, even if he did, he would not be entitled to qualified immunity.5 Recognizing that only the denials of\n\nqualified immunity would be appealable as a matter of right, the district court certified its order pursuant to\n28 U.S.C. § 1292(b), and this court granted permission for Skurstenis to appeal those portions of the district\n\ncourt's order which granted qualified immunity.\n\n II. DISCUSSION\n\n A district court's grant or denial of summary judgment is subject to de novo review by this court.\n\nHamilton v. Allen-Bradley Co., 217 F.3d 1321 (11th Cir.2000).\n\n In Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), the Supreme Court held that\n\nroutine strip searching of pretrial detainees was not a per se violation of the Fourth Amendment prohibition\nagainst unreasonable searches and seizures. In articulating the balancing test applicable to such searches, the\n\nCourt stated:\n The test of reasonableness under the Fourth Amendment is not capable of precise definition or\n mechanical application. In each case it requires a balancing of the need for the particular search\n against the invasion of personal rights that the search entails. Courts must consider the scope of the\n particular intrusion, the manner in which it is conducted, the justification for initiating it, and the\n place in which it occurred.\n\nId. at 559, 99 S.Ct. at 1884.\n\n The Bell balancing test for reasonableness requires, at a minimum, that the facts upon which the\n\nintrusion is based be capable of measurement against an objective standard. Although one appellate court\n\ninitially suggested that probable cause might be required to justify a strip search, Tinetti v. Wittke, 620 F.2d\n\n160 (7th Cir.1980) (\"The searches were conducted despite the absence of probable cause to believe that the\n\ndetainees were concealing contraband or weapons on their bodies.\"), the courts of appeal now recognize that\n\n\n 5\n The district court also granted summary judgment to Captain Watts with respect to the infirmary\nsearch, since the claim against him was based on the fact that he was the chief jailer. The district court\ncorrectly noted that under Alabama Code § 14-6-1, the sheriff, not the jailer, is the person given legal\nresponsibility for the legal custody of inmates and that, consequently, the sheriff, not the chief jailer, is\nthe final decision maker about jail policy.\n\f\"reasonable suspicion\" may justify a strip search of a pretrial detainee. See, e.g., Swain v. Spinney, 117 F.3d\n\n1 (1st Cir.1997); Warner v. Grand County, 57 F.3d 962 (10th Cir.1995); Weber v. Dell, 804 F.2d 796 (2d\n\nCir.1986) Stewart v. Lubbock County, Texas, 767 F.2d 153 (5th Cir.1985); Mary Beth G. v. City of Chicago,\n\n723 F.2d 1263 (7th Cir.1983). Indeed, in upholding the strip search of a juvenile, this court specifically held\n\nthat law enforcement officers \"may conduct a strip search of a juvenile in custody, even for a minor offense,\n\nbased upon reasonable suspicion to believe that the juvenile is concealing weapons or contraband.\" Justice\n\nv. City of Peachtree City, 961 F.2d 188, 193 (11th Cir.1992).\n\n It is undisputed that Policy Number B-103 of the Shelby County Jail requires that each inmate be\n\nstrip searched by a same sex jail staff member before being placed in a cell or detention room. This policy,\nwhich does not require any reasonable suspicion, does not comport with the requirements of the Fourth\n\nAmendment. This court thus joins every other circuit which has had occasion to review a similar policy and\n\nholds such policy to be unconstitutional. See Chapman v. Nichols, 989 F.2d 393 (10th Cir.1993) (citing cases\n\nfrom other circuits holding same).\n Because of one significant factor, however, this holding does not mean that the initial strip search\n\nperformed on Skurstenis was ipso facto unconstitutional. When she was arrested and taken into custody,\n\nSkurstenis had a .38 special handgun in her possession. Recognizing, as did the Bell court, that a detention\n\ncenter is a place \"fraught with serious security dangers,\" Bell, 441 U.S. at 559, 99 S.Ct. at 1884, and, because\n\nof the deference that should be afforded in matters of institutional security, see, e.g., Hughes v. Rowe, 449\n\nU.S. 5, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980), this court holds that possession of a weapon by a detainee\nprovides the \"reasonable suspicion\" necessary to authorize a strip search.\n\n Having concluded that the search was justified, the court must now consider the other Bell factors,\n\nviz., the manner in which the search was conducted and the place in which it was conducted. Skurstenis was\n\ntaken to a bathroom and was observed only by Deputy Blankenship, a female officer; no body cavity search\nwas undertaken. Under similar facts, this court concluded, \"Without a doubt, the officers conducted the strip\n\nsearch in the least intrusive manner.\" Justice, 961 F.2d at 193. Consequently, this court concludes that\n\nSkurstenis's constitutional rights were not violated by the strip search performed when she was booked into\n\nthe jail.\n\n The court now turns to the strip search performed on Skurstenis by T.O. Richey, the morning after\nshe was incarcerated. A sheriff in Alabama \"has the legal custody and charge of the jail in his county and\n\fall prisoners committed thereto.\" Alabama Code § 14-6-1 (1975). Thus, for purposes of Monell v.\n\nDepartment of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the sheriff is the final\n\ndecision maker with respect to jail policy.\n\n The Alabama legislature has mandated that sheriffs \"exercise every precaution to prevent the spread\nof disease among the inmates.\" Alabama Code § 14-6-95. Pursuant to this mandate, the Shelby County jail\n\ninstituted a policy of searching all inmates who have been admitted to the general jail population for\n\ncommunicable diseases at the earliest possible time during their incarceration. Because of the prevalence of\nhead and body lice among inmates and because of the difficulty in sanitizing an area after lice have been\n\nfound, one of the prime objectives of this search is to determine if an inmate has such lice.\n\n The Shelby County Commission contracted with the Shelby Baptist Medical Center [\"SBMC\"] to\n\nprovide medical services within the Shelby County jail. Under this contract, SBMC provided a nurses\nassistant and a registered nurse to the jail; those individuals generally worked Monday through Friday from\n\n7:00 a.m. to 2:00 p.m. In exchange for these services, Shelby County reimbursed SBMC on an expense\n\nreimbursement basis, consisting of the salaries of the nurses assistant and registered nurse, supplies purchased\nby SBMC, and any services provided directly by SBMC. SBMC is a not-for-profit corporation, and the\n\ncontract between SBMC and Shelby County was performed on a not-for-profit basis.\n\n Although Sheriff Jones has adopted a policy requiring inmates to undergo a body search for\ncommunicable diseases at the earliest possible time, he has not promulgated any regulations with respect to\n\nhow this search is to be performed. Instead, the manner in which this kind of search is to be conducted is\n\ncontrolled by procedures promulgated by SBMC and conveyed by SBMC to its employees. Under these\nprocedures, when there is a body search for lice, cranial and pubic hair both are examined, but there is no\n\nunnecessary contact with the inmate, nor are the inmate's genitals touched.\n\n As with the booking search, this court applies the Bell balancing factors of scope, manner,\n\njustification and place with respect to this communicable disease search.6 Bell, 441 U.S. at 559, 99 S.Ct. at\n\n1884. The search took place in the infirmary, with no one present except Skurstenis and the nurses assistant.\n\n\n\n 6\n Both Skurstenis and the district court emphasized that this search was conducted a short time before\nSkurstenis was released from the jail, intimating that the search was some kind of \"exit\" search.\nHowever, the search was conducted at the first opportunity by medical personnel and was conducted the\nmorning that Skurstenis was released only because the medical personnel did not arrive until that time.\nThe fact that the search preceded Skurstenis's release from custody by just a few minutes was merely\ncoincidental.\n\fThe intrusion was minimal, and, because of the threat of the transmission of body lice among inmates, the\n\nsearch was certainly justified. This leaves only the consideration of the manner in which the search was\nconducted. It was this factor which was of the greatest concern to the district court, and it found the search\n\nhighly offensive because it was conducted by a male upon a female. The district court failed to give proper\n\nweight, however, to the fact that the male was part of the medical staff of a hospital and was a nurses\n\nassistant.\n Although courts seem virtually unanimous in condemning strip searches conducted by prison\n\npersonnel of the opposite sex except in the most extreme of circumstances, they are not so outspoken when\nit comes to strip searches by medical personnel. Indeed, on those rare occasions when courts have discussed\n\nstrip searches by medical personnel, it is to point out that body cavity searches should be performed by\n\nmedical, not jail, personnel. The sex of the medical person conducting the search is either not identified or\n\nis mentioned only for informational purposes. See, e.g., Torres v. Wisconsin Department of Health and Social\n\nServices, 859 F.2d 1523 (7th Cir.1988) (en banc) (recognizing, in a Title VII suit brought by male officers\n\nchallenging a decision to permit only female officers in the living units of an all-female prison, that the\nWisconsin Administrative Code requires strip searches to be performed \"in private by an officer of the same\n\nsex\" and that \"[b]ody cavity searches are only performed by medical personnel in emergencies\"); Bonitz v.\n\nFair, 804 F.2d 164 (1st Cir.1986) (finding body cavity searches by prison officers unconstitutional and noting\n\nthat the officers conducting the searches \"did not follow prison instructions that required internal examination\n\nof body cavities to be conducted by medical personnel\"), overruled on other grounds, Unwin v. Campbell,\n\n863 F.2d 124 (1st Cir.1988); Daughtery v. Harris, 476 F.2d 292 (10th Cir.1973) (upholding rectal searches\n\n\"carried out by trained paraprofessional medical assistants\"); Tribble v. Gardner, 860 F.2d 321 (9th Cir.1988)\n\n(holding that prison officials were not entitled to qualified immunity when digital rectal searches were not\nreasonably related to legitimate penological concerns and were conducted for punitive purposes but also\n\nnoting that the searches were conducted by a \"physician's assistant\"); Hurley v. Ward, 584 F.2d 609 (2d\n\nCir.1978) (holding visual searches of the anal and genital areas of prisoners without probable cause to be\nunconstitutional but quoting New York law as follows: \"If there is reasonable cause to believe contraband\n\nhas been concealed in a body cavity, the inmate shall be immediately examined and/or x-rayed by a facility\n\nhealth staff member\").\n Holding that it is not inappropriate for medical personnel to conduct a strip search of an inmate of\n\fthe opposite sex and determining that the examination of Skurstenis for body lice was otherwise reasonable,\n\nthis court concludes that Sheriff Jones and Richey did not violate Skurstenis's constitutional rights.\nConsequently, the district court's orders denying them summary judgment are reversed.\n\n III. SUMMARY\n\n In these consolidated appeals, Skurstenis has alleged that her Fourth Amendment rights were violated\n\nby the booking and infirmary strip searches performed on her while she was a detainee in the county jail\nfollowing her arrest. Having found that Skurstenis's constitutional rights were not violated by either the\n\nbooking search or the infirmary search, this court AFFIRMS, although on different grounds, the district\ncourt's order granting summary judgment to Sheriff Jones, Captain Watts, Deputy Blankenship, and Deputy\n\nSmitherman with respect to the booking search; this court AFFIRMS the district court's order granting\n\nsummary judgment to Captain Watts as to the infirmary search; and this court REVERSES the district court's\norder denying qualifying immunity to Sheriff Jones and Richey with respect to the infirmary search and\ndirects that Skurstenis's claims against them with respect to the infirmary search be dismissed with prejudice\n\non remand.\n AFFIRMED in part; REVERSED and REMANDED in part.\n\f",
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| Eleventh Circuit | Court of Appeals for the Eleventh Circuit | F | USA, Federal |
75,063 | null | 2001-01-22 | false | patricia-dzikowski-v-nasd-regulation-inc | null | Patricia Dzikowski v. NASD Regulation, Inc. | null | null | null | null | null | null | null | null | null | null | null | null | 0 | Published | null | null | null | [
{
"author_str": null,
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"type": "010combined",
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"download_url": "http://www.ca11.uscourts.gov/opinions/ops/200012624.OPN.pdf",
"author_id": null,
"opinion_text": " [PUBLISH]\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT FILED\n U.S. COURT OF APPEALS\n ________________________ ELEVENTH CIRCUIT\n JAN 22 2001\n THOMAS K. KAHN\n No. 00-12624 CLERK\n Non-Argument Calendar\n ________________________\n\n D.C. Docket No. 00-08097-CV-WPD\n\n\nIN RE: BRIAN DOUGLAS SCANLON,\n Debtor.\n\nPATRICIA DZIKOWSKI,\nSuccessor Trustee in Bankruptcy for\nBrian Douglas Scanlon,\n Plaintiff-Appellant,\n\n versus\n\nNASD REGULATION, INC.,\n Defendant-Appellee.\n\n ________________________\n\n Appeal from the United States District Court\n for the Southern District of Florida\n _________________________\n (January 22, 2001)\n\nBefore TJOFLAT, DUBINA and HULL, Circuit Judges.\n\nPER CURIAM:\n\f Patricia Dzikowski (“Trustee Dzikowski”), in her capacity as trustee to\n\nBrian Scanlon (“the Debtor”), appeals the district court’s grant of summary\n\njudgment to NASD Regulation on the issue of whether certain funds in a\n\ntemporary escrow account constituted estate property under 11 U.S.C. § 541.\n\nUpon review, we affirm.\n\n BACKGROUND\n\n The Debtor was a licensed securities dealer. In December 1997, the\n\nDepartment of Enforcement of NASD Regulation filed a disciplinary proceeding\n\nagainst the Debtor after receiving information that he was involved in actionable\n\nviolations of its rules and procedures. In June 1998, the Debtor and the National\n\nAssociation of Securities Dealers (“NASD”) entered into a settlement agreement.\n\n The settlement agreement required the Debtor, among other things, to\n\nforward funds to a temporary escrow account maintained by his counsel pending\n\nthe establishment of an independent escrow agency. The settlement agreement\n\nthen required that the funds be transferred to the independent escrow agent for\n\ndistribution, according to instructions provided by NASD Regulation, to NASD\n\ncustomers harmed by the Debtor’s securities violations. In partial compliance with\n\nthe settlement agreement, the Debtor’s mother-in-law, at the request of the\n\nDebtor’s wife, forwarded $650,000 to the temporary escrow account. The\n\n\n 2\n\fDebtor’s wife repaid this loan from a line of credit on her and her husband’s\n\npersonal residence in June 1998.\n\n Before these funds could be transferred to the independent escrow agent,\n\nhowever, on August 11, 1998 the Debtor filed a voluntary bankruptcy proceeding.\n\nDzikowski was ultimately appointed trustee of the bankruptcy estate.1 As a result\n\nof the bankruptcy filing, no distributions of the settlement funds have been made.\n\nOn April 5, 1999, NASD Regulation filed an adversary proceeding seeking a\n\ndeclaratory judgment that the funds in the escrow account did not belong to the\n\nDebtor and thus were not the property of the bankruptcy estate.2 While the Debtor\n\nagreed with the position of NASD Regulation, Trustee Dzikowski responded that\n\nthe $650,000 in the temporary escrow account constituted estate property under 11\n\nU.S.C. § 541.\n\n On November 12, 1999, the bankruptcy court granted summary judgment to\n\nNASD Regulation, finding that the settlement funds were never owned or\n\ncontrolled by the Debtor and thus were not part of the bankruptcy estate. See In re\n\n 1\n Dzikowski succeeded Adriano Gonzales, who was the trustee as of the time of the\nbankruptcy court’s decision. Dzikowski’s appointment occurred at some point prior to the\nissuance of the district court’s decision.\n 2\n While NASD Regulation’s amended complaint in the bankruptcy court sought other,\nrelated determinations, see In re Scanlon, 242 B.R. 533, 533 (Bankr. S.D. Fla. 1999), the orders\nbelow and the briefs on appeal focus only on the threshold question of whether the funds in the\ntemporary escrow account constituted estate property. Accordingly, our decision only addresses\nthat issue.\n\n 3\n\fScanlon, 242 B.R. 533, 536 (Bankr. S.D. Fla. 1999) (“Scanlon I”). The bankruptcy\n\ncourt denied Trustee Dzikowski’s motion for reconsideration. On April 14, 2000,\n\nthe district court affirmed the bankruptcy court’s order. See Dzikowski v. NASD\n\nRegulation, Inc., 247 B.R. 867, 870 (S.D. Fla. 2000) (“Scanlon II”).\n\n STANDARD OF REVIEW\n\n This Court conducts a de novo review of determinations of law by the\n\nbankruptcy court and by the district court. See General Trading, Inc. v. Yale\n\nMaterials Handling Corp., 119 F.3d 1485, 1494 (11th Cir. 1997) (citing In re\n\nBlizerian, 100 F.3d 886, 889 (11th Cir. 1996)). The bankruptcy court’s factual\n\nfindings are reviewed for clear error. See id.\n\n DISCUSSION\n\n On appeal, Trustee Dzikowski argues that there are genuine issues of\n\nmaterial fact as to whether the funds in the temporary escrow account are part of\n\nthe bankruptcy estate and that these factual disputes preclude summary judgment\n\nfor NASD Regulation. She thus asks that this Court either reverse the district\n\ncourt’s grant of summary judgment to NASD Regulation or vacate the order and\n\nremand the matter for further consideration by the district court.\n\n In determining that NASD Regulation satisfied its summary judgment\n\nburden, both the bankruptcy court and the district court focused – the former\n\n\n 4\n\fimplicitly, the latter explicitly – on the degree of control exercised by the Debtor\n\nover the funds in the temporary escrow account. The bankruptcy court held that\n\n“the affidavits and deposition testimony support [NASD Regulation’s] contention\n\nthat the $650,000.00 in question were never funds of the Debtor and, thusly, are\n\nnot estate funds.” Scanlon I, 242 B.R. at 536. Specifically, the bankruptcy court\n\nfound that the funds originated from the Debtor’s mother-in-law, that the Debtor\n\nhad no authority to disburse those funds, and that the Debtor did not plan the\n\nescrow arrangement. See id. at 536-37. Similarly, the district court found that\n\n“[t]he evidence in the record, the prevailing law and the determination by the\n\nBankruptcy Court, all support the proposition that Debtor did not have control over\n\nthe funds.” Scanlon II, 247 B.R. at 870. The district court noted that the funds\n\n“were transferred to an account, by a third party, for disbursement to a specific\n\ngroup” and that the Debtor “did not have control over the funds that were in the\n\ntrust account, and could not direct who would receive the funds.” Id. It thus held\n\nthat NASD Regulation had satisfied its burden of “setting forth uncontradicted\n\nevidence that the funds were not the estate’s” and was thus entitled to summary\n\njudgment. Id.\n\n\n\n\n 5\n\f Upon review, we readily conclude that the bankruptcy court’s and the\n\ndistrict court’s factual findings are supported by the evidence.3 Both the\n\nbankruptcy court and the district court extensively summarized the evidence\n\nsubmitted in support of the parties’ positions, and we have no need to repeat those\n\ndiscussions here. We do, however, address whether the determinative factors used\n\nby those courts – the original source of the funds and the extent of the Debtor’s\n\ncontrol over them – provided the proper basis for assessing whether the $650,000\n\nin the escrow account was estate property.\n\n “A debtor’s estate in bankruptcy consists of ‘all legal and equitable interests\n\nof the debtor in property as of the commencement of the case.’” T&B Scottdale\n\nContractors, Inc. v. United States, 866 F.2d 1372, 1376 (11th Cir. 1989) (quoting\n\n11 U.S.C. § 541(a)(1)). “The extent and validity of the debtor’s interest in\n\nproperty is a question of state law.” Id. Under Florida law,4 “legal title to property\n\n\n 3\n In making their factual findings the bankruptcy court and the district court relied on\naffidavits submitted by NASD Regulation with its motion for summary judgment and deposition\ntestimony that NASD Regulation counter-designated. We therefore reject Trustee Dzikowski’s\nclaim that the affidavits alone did not support those factual findings.\n 4\n Although the apparent assumption below was that Florida law was controlling in this\ncase, we note that the escrow account at issue was located in the state of New York. Neither the\nbankruptcy court nor the district court analyzed what the governing law should be, however, and\nboth appear to have assumed, without deciding, that Florida law determines the issue presented\nin this appeal. In her reply brief Trustee Dzikowski raises the possibility, but does not argue,\nthat New York law applies. (See Reply Br. at 4 & n.1.) Because no argument to the contrary\nhas been presented, we conduct our review according to principles of Florida law.\n\n 6\n\fplaced in an escrow account remains with the grantor until the occurrence of the\n\ncondition specified in the escrow agreement.” Dickerson v. Central Fla. Radiation\n\nOncology Group, 225 B.R. 241, 244 (M.D. Fla. 1998) (citing In the Matter of\n\nBerkley Multi-Units, Inc., 69 B.R. 638, 641 (Bankr. M.D. Fla. 1987)).\n\nNonetheless, “funds that are deposited into an escrow account by a debtor, for the\n\nbenefit of others, cannot be characterized as property of the estate.” In re S.E.L.\n\nMaduro, 205 B.R. 987, 990-91 (Bankr. S.D. Fla. 1997) (citing In re AGSY, Inc.,\n\n120 B.R. 313, 317-20 (Bankr. S.D.N.Y. 1990)).\n\n Neither the bankruptcy court nor the district court expressly addressed these\n\nprinciples. While the bankruptcy court did not cite any precedent guiding its\n\nanalysis of the bankruptcy estate, it did conclude that the funds deposited in the\n\nescrow account belonged to the Debtor’s mother-in-law. See Scanlon I, 242 B.R.\n\nat 537. In affirming the judgment of the bankruptcy court, the district court relied\n\non previous decisions from this Court and district courts that focused on the degree\n\nof control exercised by the Debtor in determining whether certain funds were part\n\nof the bankruptcy estate. See Scanlon II, 247 B.R. at 869 (citing In re Safe-T-\n\nBrake of South Fla., Inc., 162 B.R. 359, 365 (Bankr. S.D. Fla. 1993)).\n\n Nonetheless, the two opinions below inform the analysis of who possessed\n\nlegal title to the funds in the temporary escrow account and who were the intended\n\n\n 7\n\fbeneficiaries of those funds, and those discussions support the conclusion that\n\nTrustee Dzikowski did not satisfy her burden on summary judgment of presenting\n\n“some significant probative evidence which makes it necessary to resolve the\n\nparties’ differing versions of the dispute at trial.” Scanlon I, 242 B.R. at 536\n\n(citing Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993)). While\n\nthe issue of who possessed legal title to the funds in the escrow account is not free\n\nof ambiguity,5 it is clear that the $650,000 was not intended to benefit the Debtor.\n\nAlthough Trustee Dzikowski argues that the settlement funds were meant to\n\nbenefit the Debtor by precluding any further litigation against him by the NASD,\n\nthe true beneficiaries of the settlement funds were clearly the NASD customers\n\ndefrauded by the Debtor. Indeed, the district court found that the temporary\n\nescrow account “was established to satisfy the settlement agreement, not to benefit\n\nDebtor.” Scanlon II, 247 B.R. at 870. Furthermore, the Debtor’s mother-in-law\n\nplaced the funds in the temporary escrow account “with the implicit instructions\n\n 5\n The district court stated that while the Debtor had reimbursed his mother-in-law for the\nloan, “[t]he facts show . . . that the funds were placed in the trust account, by the mother-in-law\nwith the implicit instructions that they were to be used to satisfy the settlement agreement.”\nScanlon II, 247 B.R. at 870. The district court’s implicit conclusion is that the Debtor’s mother-\nin-law retained legal title to the funds, and the funds were thus not a part of the bankruptcy\nestate. The bankruptcy court’s statement of the facts, however, creates some uncertainty\nconcerning the legal effect, if any, of the repayment of the loan from the Debtor’s mother-in-law.\nWhile the district court stated that the Debtor repaid this loan, see id., the bankruptcy court stated\nthat the loan was repaid by the Debtor’s wife from a line of credit on their personal residence,\nand it further noted that the Debtor’s wife was the title owner of all residences owned by herself\nand the Debtor. See Scanlon I, 242 B.R. at 538.\n\n 8\n\fthat they were to be used to satisfy the settlement agreement.” Id. Additionally,\n\nthe Debtor “did not have control over the funds that were in the trust account, and\n\ncould not direct who would receive the funds.” Id. As the bankruptcy court noted,\n\neven the Debtor’s counsel could not release the funds in the escrow account “to\n\nany entity without directions and approval of the U.S. Bankruptcy Court or by the\n\nconsent of all parties involved.” Scanlon I, 242 B.R. at 537. Thus, even if the\n\nDebtor could be deemed the legal owner of the funds by virtue of his repayment of\n\nhis mother-in-law’s loan, the fact that those funds experienced a temporary layover\n\nin an account maintained by his counsel while en route to compensating others\n\nwithout any oversight by the Debtor hardly converts them into property of the\n\nbankruptcy estate.\n\n\n\n\n CONCLUSION\n\n For these reasons, we conclude that the funds in the temporary escrow\n\naccount are not part of the bankruptcy estate and that summary judgment for\n\nNASD Regulation on this issue was appropriate.\n\n AFFIRMED.\n\n\n\n\n 9\n\f",
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| Eleventh Circuit | Court of Appeals for the Eleventh Circuit | F | USA, Federal |
2,665,263 | Judge Ellen S. Huvelle | 2010-09-23 | false | human-genome-sciences-inc-v-kappos | Kappos | Human Genome Sciences, Inc. v. Kappos | null | null | Civil | null | null | null | null | null | null | null | null | null | 0 | Published | null | null | null | [
{
"author_str": null,
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"type": "010combined",
"page_count": 6,
"download_url": "https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2010cv0575-17",
"author_id": 1582,
"opinion_text": " UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF COLUMBIA\n\n____________________________________\n )\nHUMAN GENOME SCIENCES, INC., )\n )\n Plaintiff, )\n )\n v. ) Civil Action No. 10-0575 (ESH)\n )\nHON. DAVID J. KAPPOS, )\nUnder Secretary of Commerce for )\nIntellectual Property & Director of the )\nUnited States Patent & Trademark )\nOffice, )\n )\n Defendant. )\n____________________________________)\n\n\n MEMORANDUM OPINION\n\n Plaintiff Human Genome Sciences seeks to have the patent term adjustments (PTAs) for\n\nfour of its patents recalculated due to alleged miscalculations by the United States Patent and\n\nTrademark Office (“USPTO”). Plaintiff’s original complaint sought recalculation for two of its\n\npatents, and its Amended Complaint added similar claims for two other patents. Defendant\n\nmoved to strike the Amended Complaint on grounds that it was in fact a supplemental pleading\n\nthat could not, under Fed. R. Civ. P. 15(d), be filed without the Court’s permission, which\n\nplaintiff had not obtained. Defendant also moved to remand the PTA claims in the original\n\ncomplaint to the USPTO for partial recalculation.\n\n As explained herein, the Court finds that plaintiff’s Amended Complaint is indeed an\n\namendment and not a supplemental pleading and therefore denies defendant’s motion to strike.\n\nThe Court grants defendant’s motion to remand with the understanding that the Court will retain\n\njurisdiction over the matter.\n\f BACKGROUND\n\n Under 35 U.S.C. § 154(b)(1), a patent’s term may be extended if the USPTO causes\n\ncertain delays in the prosecution process (“USPTO delay”) or if the patent takes longer than\n\nthree years to issue (“3-year maximum pendency delay”). A patent’s term is reduced for\n\nprosecution delays caused by the applicant (“applicant delay”). Id. § 154(b)(2). The USPTO’s\n\nlongstanding method of calculating PTA was rejected by the Federal Circuit in Wyeth v. Kappos,\n\n591 F.3d 1364 (Fed. Cir. 2010), in favor of a method more generous to patent holders.1\n\n Plaintiff is the assignee of United States Patent Nos. 7,601,351 (“the ’351 patent”),\n\n7,605,236 (“the ’236 patent”), 7,064,189 (“the ’189 patent”), and 7,138,501 (“the ’501 patent”).\n\n(First Am. Compl. ¶ 1.) Patents ’351 and ’236 were issued in October 2009. (Compl. ¶¶ 36, 41).\n\nOn April 9, 2010, plaintiff sued to have their PTAs recalculated to comply with Wyeth and also\n\nto correct the USPTO’s allegedly erroneous measurement of prosecution delays. (See Compl. ¶¶\n\n61-76.) Plaintiff’s suit was timely under § 154(b)(4)(A), which provides that civil actions\n\nchallenging PTA determinations must be brought “within 180 days after the grant of the patent.”\n\n On July 20, 2010, plaintiff amended its complaint to seek similar recalculations for\n\npatents ’189 and ’501. (First. Am. Compl. ¶¶ 100-131.) These patents were issued and their\n\nPTAs determined in 2006.2 (First Am. Compl. ¶¶ 76, 79, 91-92.) Plaintiff alleges that these\n\nPTA claims are timely because the 180-day limitations period is either inapplicable or should be\n\ntolled under the doctrine of equitable tolling or under the discovery rule. (Id. ¶¶ 137, 144-\n\n\n1\n The USPTO had interpreted § 154(b) such that whenever a patent application was subject to\nboth USPTO delay and 3-year maximum pendency delay, the delays overlapped and the\napplicant could only be awarded PTA for one of the two delays, whichever was longer. The\nFederal Circuit rejected this reading, holding instead that the two types of delays could only\noverlap if they occurred on the same calendar dates. Wyeth, 591 F.3d at 1369-70.\n2\n Patent ’189 was issued and its PTA determined in June 2006; patent ’501 was issued and its\nPTA determined in November 2006. (First Am. Compl. ¶¶ 76, 79, 91-92.)\n 2\n\f45,151-52.) On March 5, 2010, prior to filing its original complaint, plaintiff had petitioned\n\ndefendant to reconsider these patents’ PTAs in light of Wyeth. (Id. ¶¶ 77, 97.) However,\n\ndefendant dismissed plaintiff’s ’189 petition on April 21, 2010 and to date has made no decision\n\nregarding the ’501 petition. (Id.)\n\n Defendant moves to strike the Amended Complaint on grounds that it is not an\n\namendment under Fed. R. Civ. P 15(a), but rather a supplemental pleading under Rule 15(d), for\n\nwhich plaintiff was required to obtain leave of court. (Def.’s Mot. to Strike Am. Compl. at 1.)\n\nPlaintiff opposes defendant’s motion or, in the alternative, seeks leave to file the pleading nunc\n\npro tunc. (Id. at 5.)\n\n Defendant also moves to remand plaintiff’s ’351 and ’236 claims to the USPTO for\n\nrecalculation of the patents’ PTAs in light of Wyeth and for reconsideration of plaintiff’s\n\napplicant delay claims. (Def.’s Mot. to Remand at 1.) Plaintiff consents to a remand only if all\n\nof its claims relating to all four patents are remanded and the Court retains jurisdiction over the\n\naction. (Pl.’s Conditional Opp’n. to Def.’s Mot. to Remand at 2.)\n\n ANALYSIS\n\n I. AMENDED COMPLAINT\n\n The parties disagree as to whether plaintiff’s Amended Complaint is in fact an\n\namendment under Fed. R. Civ. P. 15(a) or a supplemental pleading under Fed. R. Civ. P. 15(d).\n\nThe significance of this distinction lies in the fact that while the rules permit amendments\n\nwithout leave of court under certain circumstances, supplements always require leave of court.\n\nFed. R. Civ. P. 15(a)(1), (d).\n\n Unlike amendments, which “typically rest on matters in place prior to the filing of the\n\noriginal pleading,” U.S. v. Hicks, 283 F.3d 380, 385 (D.C. Cir. 2002), supplements set out\n\n“transaction[s], occurrence[s], or event[s] that happened after the date of the pleading to be\n 3\n\fsupplemented.” Fed. R. Civ. P. 15(d). However, a pleading generally does not become a\n\nsupplement merely because it references facts that occurred subsequent to the original complaint.\n\nRather, “the appropriate bases for supplemental pleadings are new facts bearing on the\n\nrelationship between the parties.” Hicks, 283 F.3d at 386 (emphasis added). Thus, supplemental\n\npleadings are used, e.g., “to set forth new facts that update the original pleading or provide the\n\nbasis for additional relief; to put forward new claims or defenses based on events that took place\n\nafter the original complaint or answer was filed; [and] to include new parties where subsequent\n\nevents have made it necessary to do so.” Id. (citing 6A Charles Alan Wright et al., Federal\n\nPractice and Procedure § 1504 (3d ed. 2010)).\n\n Here, plaintiff’s new claims are based on events that occurred before the original\n\ncomplaint was filed. The Amended Complaint seeks PTA recalculations for patents ’189 and\n\n’501 in light of Wyeth. Prior to the filing of the original complaint, both patents were issued and\n\ntheir PTAs calculated, Wyeth was decided, and plaintiff sought relief directly from the USPTO.\n\n(Pl.’s Opp’n. to Def.’s Mot. to Strike Am. Compl. at 2-3.)\n\n The only events that have allegedly occurred since the original complaint was filed are\n\nthat the USPTO dismissed plaintiff’s ’189 petition and the ’501 petition remains pending.\n\n(Def.’s Mot. to Strike Am. Compl. at 3.) But, defendant fails to explain how these facts are\n\nmaterial to plaintiff’s claims. Contrary to defendant’s assertion, the Amended Complaint does\n\nnot challenge the USPTO’s disposition of plaintiff’s petitions; rather it challenges the USPTO’s\n\noriginal determination of those patents’ PTAs.3 (Pl.’s Opp’n. to Def.’s Mot. to Strike Am.\n\n\n\n3\n Defendant tries to attach legal significance to plaintiff’s failure to add patents ’189 and ’501 to\nthe original complaint, suggesting that plaintiff was waiting for the USPTO to respond to one of\nits petitions before amending the complaint. (Def.’s Reply to Pl.’s Opp. to Def.’s Mot. to Strike\nAm. Compl. at 2.) However, this merely describes plaintiff’s litigation strategy. The USPTO’s\ndismissal may have prompted plaintiff’s amendment, but it did not contribute to the factual basis\n 4\n\fCompl. at 3-4.)\n\n This case is therefore easily distinguished from Hall v. C.I.A., 437 F.3d 94 (D.C. Cir.\n\n2006). The plaintiff in Hall requested information from the CIA under the Freedom of\n\nInformation Act (FOIA), and filed suit when the CIA failed to adequately respond. Id. at 97.\n\nThereafter, the plaintiff made an additional FOIA request to the CIA and attempted to\n\nincorporate claims based on this request into his original complaint. Id. The Court found that\n\nplaintiff’s pleading was a supplement rather than an amendment because his new claims were\n\nbased on the FOIA request that occurred after the original complaint was filed. Id. at 100. Here,\n\nby contrast, plaintiff’s claims are based on the USPTO’s original PTA determinations, which\n\nwere made well before plaintiff’s original complaint was filed.\n\n Finally, defendant does not suggest that the USPTO’s dismissal of plaintiff’s petition was\n\na prerequisite to plaintiff’s cause of action. Indeed, 35 U.S.C. § 154(b)(4) clearly provides for\n\ndirect appeal of PTA determinations to the United States District Court for the District of\n\nColumbia. Therefore, this is not like Montgomery Env. Coal. v. Fri, 366 F. Supp. 261 (D.D.C.\n\n1973), where the plaintiff sued under a statute which provided that no action could be\n\ncommenced until sixty days after the plaintiff gave notice to certain parties. Id. at 266. The\n\ncourt found that because the “amended complaint” added the allegation that the sixty days had\n\npassed, the amended complaint was in fact a supplemental pleading. Id. at 265. There, unlike\n\nhere, the additional allegations had legal significance because they created a cause of action\n\nwhere none had previously existed.\n\n In sum, the Court finds that the material facts underlying the claims in plaintiff’s\n\nAmended Complaint all occurred before the original complaint was filed. The USPTO’s\n\n\n\nfor plaintiff’s additional claims.\n 5\n\fdismissal of one petition and continued consideration of the other do not bear on plaintiff’s PTA\n\nclaims, and therefore, they do not render the Amended Complaint a supplemental pleading.\n\nTherefore, defendant’s motion to strike the Amended Complaint is denied.\n\n II. MOTION TO REMAND\n\n Defendant has moved to remand the ’351 and ’236 patent claims to the USPTO for\n\nrecalculation of their PTAs in light of Wyeth and for reconsideration of plaintiff’s applicant delay\n\nclaims under 35 U.S.C. § 154(b)(2)(C) . (Def.’s Mot. to Remand at 1.) Plaintiff requests that the\n\nCourt retain jurisdiction over these two patent claims. (Pl.’s Conditional Opp’n. to Def.’s Mot. to\n\nRemand at 3.)4 Accordingly, defendant’s motion to remand is granted with the understanding\n\nthat the Court will retain jurisdiction over the matter.\n\n CONCLUSION\n\n For the foregoing reasons, defendant’s motion to strike the Amended Complaint is\n\ndenied, and its motion to remand is granted with the understanding that the Court will retain\n\njurisdiction over the matter. This Memorandum Opinion is accompanied by a separate Order.\n\n\n\n /s/\n ELLEN SEGAL HUVELLE\n United States District Judge\n\nDATE: September 23, 2010\n\n\n\n\n4\n Plaintiff also requests that remand only be granted if all of plaintiff’s claims relating to all four\npatents are remanded. (Pl.’s Conditional Opp’n. to Def.’s Mot. to Remand at 2.) However,\nplaintiff offers no argument in support of this position.\n 6\n\f",
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| District of Columbia | District Court, District of Columbia | FD | USA, Federal |
457,678 | Kravitch, Per Curiam, Tjoflat, Vance | 1985-09-17 | false | billy-d-taylor-v-commissioner-of-internal-revenue | null | Billy D. Taylor v. Commissioner of Internal Revenue | Billy D. TAYLOR, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee | Glenn L. Archer, Jr., Asst. Atty. Gen., Michael L. Paup, Chief, Appellate Section, Gilbert S. Rothenberg, Steven I. Frahm, U.S. Dept, of Justice, Tax Div., Washington, D.C., for appellee. | null | null | null | null | Non-Argument Calendar. | null | null | null | null | null | 17 | Published | null | <parties data-order="0" data-type="parties" id="b526-6">
Billy D. TAYLOR, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
</parties><br><docketnumber data-order="1" data-type="docketnumber" id="b526-9">
No. 85-3063
</docketnumber><br><p data-order="2" data-type="summary" id="b526-10">
Non-Argument Calendar.
</p><br><court data-order="3" data-type="court" id="b526-11">
United States Court of Appeals, Eleventh Circuit.
</court><br><decisiondate data-order="4" data-type="decisiondate" id="b526-12">
Sept. 17, 1985.
</decisiondate><br><attorneys data-order="5" data-type="attorneys" id="b526-26">
Glenn L. Archer, Jr., Asst. Atty. Gen., Michael L. Paup, Chief, Appellate Section, Gilbert S. Rothenberg, Steven I. Frahm, U.S. Dept, of Justice, Tax Div., Washington, D.C., for appellee.
</attorneys><br><judges data-order="6" data-type="judges" id="b527-4">
<span citation-index="1" class="star-pagination" label="479">
*479
</span>
Before TJOFLAT, VANCE and KRAVITCH, Circuit Judges.
</judges> | [
"771 F.2d 478"
]
| [
{
"author_str": "Per Curiam",
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": "http://bulk.resource.org/courts.gov/c/F2/771/771.F2d.478.-.85-3063.html",
"author_id": null,
"opinion_text": "771 F.2d 478\n 56 A.F.T.R.2d 85-5926, 85-2 USTC P 9678\n Billy D. TAYLOR, Petitioner-Appellant,v.COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.\n No. 85-3063Non-Argument Calendar.\n United States Court of Appeals,Eleventh Circuit.\n Sept. 17, 1985.\n \n Glenn L. Archer, Jr., Asst. Atty. Gen., Michael L. Paup, Chief, Appellate Section, Gilbert S. Rothenberg, Steven I. Frahm, U.S. Dept. of Justice, Tax Div., Washington, D.C., for appellee.\n Appeal from the Decision of the United States Tax Court.\n Before TJOFLAT, VANCE and KRAVITCH, Circuit Judges.\n PER CURIAM:\n \n \n 1\n Appellant taxpayer contends that the United States Tax Court improperly dismissed his petition for failure to state a claim upon which relief can be granted. The Tax Court ruled that the petition did not comply with Tax Court Rule 34(b)(5), 26 U.S.C. foll. Sec. 7453, which requires that the petition set forth \"clear and concise lettered statements of facts,\" and that it was therefore impossible to discern whether the petition stated a claim. We hold that where a petition fails to set forth facts as required by Tax Court Rule 34(b)(5), the Tax Court is correct in dismissing the petition for failure to state a claim.\n \n \n 2\n On March 28, 1984, the Commissioner of Internal Revenue mailed a statutory notice of deficiency to the taxpayer, Billy D. Taylor, assessing him $95,577.50 in additional income taxes for 1980 and $4,778.88 in penalties. On June 25, 1984, the appellant filed a pro se petition in the Tax Court. The greater portion of the petition sets forth a standard tax protester diatribe; appellant admits in his brief before this court that the petition contained numerous items that were \"extraneous, irrelevant and possibly down-right insulting.\" The petition did set forth the adjustments made by the Commissioner and assign them as error. It failed, however, to state any facts to show why the adjustments were in error.\n \n \n 3\n The Commissioner filed a motion to dismiss the petition for failure to state a claim upon which relief could be granted. On September 25, 1984, the Tax Court issued an order holding the motion to dismiss in abeyance pending the receipt of an amended petition. The order informed the taxpayer that the petition contained large amounts of irrelevant material, making it difficult to determine whether the petition set forth justiciable issues, and ordered the taxpayer to file an amended petition by October 26, 1984. A copy of Tax Court Rule 34 was attached to the order to assist the taxpayer in preparing the amended petition.\n \n \n 4\n Taylor filed an amended petition on October 30, 1984. The amended petition restated the original petition and in response to the request for specific statements of facts merely stated that he was appearing pro se, that his petition was in English, and that the Tax Court had accepted other informal petitions. The Tax Court ruled that Taylor had complied with Rule 34(b)(4) by assigning errors, but that he had not provided clear and concise facts and thus the petition did not comply with Rule 34(b)(5). Accordingly the court granted the Commissioner's motion to dismiss the petition.\n \n \n 5\n The Commissioner's determination of a deficiency is presumed correct and the taxpayer has the burden of proving it incorrect. Welch v. Helvering, 290 U.S. 111, 115, 54 S.Ct. 8, 9, 78 L.Ed. 212 (1933); Potito v. Commissioner, 534 F.2d 49, 51 (5th Cir.1976), cert. denied, 429 U.S. 1039, 97 S.Ct. 736, 50 L.Ed.2d 751 (1977).1 In addition, the Tax Court Rules have been interpreted as requiring more detailed pleadings than the Federal Rules of Civil Procedure. Scherping v. Commissioner, 747 F.2d 478 (8th Cir.1984). Tax Court Rule 34(b)(5) plainly states that the petition must set forth \"clear and concise lettered statements of facts.\" Because the taxpayer carries the burden in the deficiency proceeding, a petition that does not set forth facts should be dismissed. Id. at 480 (petition that merely states Commissioner's income figures too high and expense figures too low properly dismissed under Rule 34(b)(5)).\n \n \n 6\n On appeal, Taylor asserts that because he is appearing pro se he should not be held to as high a standard in drafting his petition as if assisted by counsel. The opportunity to appear pro se, however, is not a license to submit material that the pro se petitioner knows is irrelevant and insulting and then request that the court disregard the petition and in effect assume that relevant facts do exist. Here, even taking the taxpayer's layperson status into account, the petition is defective. The Tax Court afforded the taxpayer an opportunity to amend the petition, and provided a copy of the rule. The taxpayer did not even attempt to comply with the request.\n \n \n 7\n We hold that a taxpayer, notwithstanding pro se status, must comply with Tax Court Rule 34(b)(5) and set forth facts showing entitlement to relief in his petition or suffer dismissal. The order of the Tax Court dismissing the petition is AFFIRMED.\n \n \n \n 1\n The Eleventh Circuit, in the en banc decision Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981), adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981\n \n \n ",
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| Eleventh Circuit | Court of Appeals for the Eleventh Circuit | F | USA, Federal |
2,592,815 | Lake | 1989-09-19 | false | halliburton-co-v-schlumberger-technology-corp | null | Halliburton Co. v. Schlumberger Technology Corp. | HALLIBURTON COMPANY, Plaintiff, v. SCHLUMBERGER TECHNOLOGY CORPORATION, Defendant | Fay E. Morisseau, Vinson & Elkins, Houston, Tex. and Joel M. Freed, Burns, Doane, Swecker & Mathis, Alexandria, Va., for plaintiff., Ronald L. Palmer, Baker & Botts, Mitchell Lukin and Sylvia Matthews Egner, Houston, Tex., Richard G. Berkley, and Dana M. Raymond, Brumbaugh, Graves, Donohue & Raymond, New York City, for defendant. | null | null | null | null | null | null | null | null | null | null | 2 | Published | null | <parties id="b408-6">
HALLIBURTON COMPANY, Plaintiff, v. SCHLUMBERGER TECHNOLOGY CORPORATION, Defendant.
</parties><br><docketnumber id="b408-8">
Civ. A. No. H-85-5464.
</docketnumber><br><court id="b408-9">
United States District Court, S.D. Texas, Houston Division.
</court><br><decisiondate id="b408-12">
Sept. 19, 1989.
</decisiondate><br><attorneys id="b409-8">
<span citation-index="1" class="star-pagination" label="325">
*325
</span>
Fay E. Morisseau, Vinson
<em>
&
</em>
Elkins, Houston, Tex. and Joel M. Freed, Burns, Doane, Swecker & Mathis, Alexandria, Va., for plaintiff.
</attorneys><br><attorneys id="b409-9">
Ronald L. Palmer, Baker & Botts, Mitchell Lukin and Sylvia Matthews Egner, Houston, Tex., Richard G. Berkley, and Dana M. Raymond, Brumbaugh, Graves, Donohue & Raymond, New York City, for defendant.
</attorneys> | [
"722 F. Supp. 324"
]
| [
{
"author_str": "Lake",
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": null,
"author_id": 1840,
"opinion_text": "\n722 F. Supp. 324 (1989)\nHALLIBURTON COMPANY, Plaintiff,\nv.\nSCHLUMBERGER TECHNOLOGY CORPORATION, Defendant.\nCiv. A. No. H-85-5464.\nUnited States District Court, S.D. Texas, Houston Division.\nSeptember 19, 1989.\n*325 Fay E. Morisseau, Vinson & Elkins, Houston, Tex. and Joel M. Freed, Burns, Doane, Swecker & Mathis, Alexandria, Va., for plaintiff.\nRonald L. Palmer, Baker & Botts, Mitchell Lukin and Sylvia Matthews Egner, Houston, Tex., Richard G. Berkley, and Dana M. Raymond, Brumbaugh, Graves, Donohue & Raymond, New York City, for defendant.\n\nMEMORANDUM AND ORDER\nLAKE, District Judge.\nThis is an action for patent infringement brought by Halliburton Company against Schlumberger Technology Corporation. The issue addressed in this memorandum is whether the Halliburton patents in suit are unenforceable because of inequitable conduct in their prosecution.\n\nI. BACKGROUND\n\nA. The Industry and Art\n\nBoth parties are leaders in oil well logging technology. Well logging involves lowering complex instrument packages called \"sondes\" or \"tools\" into well holes to measure properties of the earth surrounding the borehole. The type of logging at issue is known as thermal neutron decay logging. Neutron well logging tools emit fast, high energy, neutrons. Because of collisions with nuclei of atoms in the borehole and the surrounding earth formation these fast neutrons quickly lose energy and slow (are moderated) to a \"thermal\" energy at which they can then be captured by the nuclei of surrounding atoms. When this capture or \"neutron decay\" occurs, the capturing atoms emit gamma rays that can be detected by instruments in the tool. Measurements of gamma ray emissions are typically made as the tool moves continuously through the borehole. A tool of this type is depicted below from Figure 1 of the Halliburton '444 patent in suit.\n*326 \n*327 Because atoms of different materials capture thermal neutrons at different rates, interpretation of the rate of neutron capture from gamma ray emission data can disclose information about the formations around a well logging tool. The neutron decay rate can be plotted semi-logarithmically as a decay curve, such as that shown below from the first page of the Halliburton '444 patent.\n\nThe type of thermal neutron decay logging at issue in this suit is conducted in \"closed\" boreholes in which casing has been installed and cemented after drilling. Although thermal neutron decay tools have been used in closed hole logging since the mid-1960's, early tools all had a common problem that limited their value they were not able to account for neutron decay occurring within the borehole itself. Thermal neutrons are captured, and gamma rays emitted, not only by nuclei of the surrounding earth formation, but also by nuclei of the metal well casing and the cement that secures it in the borehole and by nuclei of water, oil, gas, air, and other materials in the borehole. Measurement of composite data from this combined gamma ray population therefore reflects a mixture of the decay rate of the formation and the borehole.\nWhen early thermal neutron decay logging tools were introduced no method was known for separately measuring gamma ray data associated with borehole neutron decay, i.e., for separating composite data into its borehole decay and formation decay components. In order to measure formation decay, early commercial tools delayed counting incoming gamma rays until after sufficient time had elapsed that it was assumed that the borehole component of decay had largely been dissipated. In the industry this procedure was known as \"timing out the borehole.\" In many instances, however, it was recognized that calculating the separate borehole decay rate could be useful, for example to determine the presence of oil, gas, air or water in the borehole and to detect gaps in cement around the casing. In addition, waiting until all gamma rays from borehole decay had dissipated denied earlier access to gamma rays *328 from formation decay since both borehole decay and formation decay occurred during the early period following a neutron burst. (See graph from '444 patent above).\nThe Halliburton patents in suit and the Schlumberger tools that allegedly infringe them improve on prior commercial tools by simultaneously measuring and separating both the borehole decay and the formation decay components. This information is typically expressed as the borehole decay time or \"tau\" (\"τB\") and the formation decay time (\"τF\").\n\nB. History of This Litigation\n\nIn September of 1985 Halliburton filed this action alleging that Schlumberger had infringed five Halliburton patents:\n(1) Patent No. 4,326,129 issued on April 20, 1982 (the \"Neufeld '129 patent\");\n(2) Patent No. 4,503,328 issued on March 5, 1985 (the \"Neufeld '328 patent\");[1]\n(3) Patent No. 4,388,529 issued on June 14, 1983 (the \"'529 patent\");\n(4) Patent No. 4,409,481 issued on October 11, 1983 (the \"'481 patent\"); and\n(5) Patent No. 4,424,444 issued on January 3, 1984 (the \"'444 patent\").\nThe first two patents are referred to as the \"Neufeld patents.\" The other three are collectively referred to as the \"Halliburton patents\" or \"patents in suit.\" Halliburton alleged that Schlumberger infringed these patents with well logging tools and services that Schlumberger identified by the designation \"TDT-MB\" and \"TDT-P.\"\nSchlumberger alleged that Halliburton was precluded from enforcing the patents in suit because of inequitable conduct in prosecuting them before the Patent and Trademark Office and counterclaimed that Halliburton's own TMD tool infringed certain Schlumberger patents. In July of 1987 when the original Joint Pretrial Order was filed, Halliburton abandoned its claims that Schlumberger had infringed the Neufeld patents. Earlier this year the Court ordered that the issue of inequitable conduct be severed from the other issues in the case and tried first. Schlumberger then dismissed with prejudice its counter-claims. The issue of inequitable conduct was tried to the Court from August 7 to August 28, 1989.\n\nII. INEQUITABLE CONDUCT\n\nA. The Duty of Disclosure\n\nProsecuting a patent application in the U.S. Patent and Trademark Office (\"PTO\") is normally an ex parte procedure conducted in secret with no notice or information provided to competitors or the public until the patent has been approved for issuance. 35 U.S.C. § 122; 37 C.F.R. § 1.14; A.B. Dick Co. v. Burroughs Corp., 617 F. Supp. 1382, 1394 (N.D.Ill.1985), aff'd, 798 F.2d 1392 (Fed.Cir.1986). To preserve the integrity of the patent process, the PTO must be able to rely on the disclosures and other statements of the applicant and his attorney. During the prosecution of a patent the applicant and his attorney therefore occupy a relationship of trust to the PTO and are obligated to exercise the highest standards of honesty, good faith and candor. 37 C.F.R. § 1.56(a); Hycor Corp. v. Schlueter Co., 740 F.2d 1529, 1538 (Fed. Cir.1984). The applicant and his attorney must disclose to the PTO \"information they are aware of which is material to the examination of the application.\" 37 C.F.R. § 1.56(a).\nThis high and absolute duty is \"uncompromising\" and extends throughout the patent prosecution. Precision Instrument Manufacturing Co. v. Automotive Maintenance Machinery Co., 324 U.S. 806, 818, 65 S. Ct. 993, 999, 89 L. Ed. 1381, reh'g denied, 325 U.S. 893, 65 S. Ct. 1189, 89 L. Ed. 2005 (1945). Applicants have a duty to disclose material information they become aware of at any time during the prosecution of a patent application. Manual of Patent Examining Procedures (\"MPEP\") §§ 2001.06 and 2002.03(a). Given the applicant's duty of good faith and candor and the ex parte nature of patent *329 application proceedings, any doubts about the inclusion of references to prior art in a patent application must be resolved in favor of disclosure. MPEP § 2004.10 (§ 2004.9 at the times in issue).\n\nB. Violation of the Duty of Disclosure\n\nInequitable conduct by the applicant or his attorney in dealings with the PTO may render a patent unenforceable. Inequitable conduct may consist of acts of omission the failure to disclose material information and acts of commission the submission of false information. J.P. Stevens & Co. v. Lex Tex. Ltd., 747 F.2d 1553, 1559 (Fed.Cir.1984), cert. denied, 474 U.S. 822, 106 S. Ct. 73, 88 L. Ed. 2d 60 (1985). If a court finds inequitable conduct by the applicant \"all the claims not just the particular claims to which the inequitable conduct is directly connected are unenforceable.\" Id. at 1561. The reason for this rule was explained by the Supreme Court in Precision Instrument:\nIn the instant case Automotive has sought to enforce several patents and related contracts. Clearly these are matters concerning far more than the interests of the adverse parties. The possession and assertion of patent rights are \"issues of great moment to the public.\" (Citations omitted).\nA patent by its very nature is affected with a public interest. As recognized by the Constitution, it is a special privilege designed to serve the public purpose of promoting the \"Progress of Science and useful Arts.\" At the same time, a patent is an exception to the general rule against monopolies and to the right to access to a free and open market. The far-reaching social and economic consequences of a patent, therefore, give the public a paramount interest in seeing that patent monopolies spring from backgrounds free from fraud or other inequitable conduct and that such monopolies are kept within their legitimate scope. The facts of this case must accordingly be measured by both public and private standards of equity.\n324 U.S. at 816, 65 S. Ct. at 998.\nInequitable conduct is a broader concept than common law fraud. It is established by proof of facts by clear and convincing evidence of a threshold level of materiality of the nondisclosed or misrepresented information and a threshold level of intent to mislead the PTO. J.P. Stevens, 747 F.2d at 1560. If these threshold levels of proof are met, \"the court must balance [materiality and intent] and determine as a matter of law whether the scales tilt to a conclusion that inequitable conduct occurred.\" Id. The more material the omission, the less evidence of intent is required, and vice-versa. N.V. Akzo v. E.I. DuPont de Nemours, 810 F.2d 1148, 1153 (Fed.Cir. 1987); American Hoist & Derrick Co. v. Sowa & Sons, Inc., 725 F.2d 1350, 1363 (Fed.Cir.), cert. denied, 469 U.S. 821, 105 S. Ct. 95, 83 L. Ed. 2d 41 (1984) (A greater showing of materiality may permit \"a lesser showing of facts from which intent can be inferred ... sufficient to justify holding the patent invalid ...\"). No single factor is dispositive. The determination is one of equity that is \"not bound by formula or restrained by any limitation that tends to trammel the free and just exercise of discretion.\" Precision Instrument, 324 U.S. at 815, 65 S. Ct. at 997; accord, Kingsdown Medical Consultants, Ltd. v. Hollister, Inc., 863 F.2d 867, 876 (Fed.Cir.1988), cert. denied, ___ U.S. ___, 109 S. Ct. 2068, 104 L. Ed. 2d 633 (1989).\n\nC. Materiality\n\n\n(1) Standard\nAlthough various standards of materiality have been articulated, the standard presently applied by the Federal Circuit is based on 37 C.F.R. § 1.56(a).\n\"Inequitable conduct\" requires proof by clear and convincing evidence of a threshold degree of materiality of the nondisclosed or false information. It has been indicated that the threshold can be established by any of four tests: (1) objective \"but for\"; (2) subjective \"but for\"; (3) \"but it may have been\"; and (4) PTO Rule 1.56(a), i.e., whether there is a substantial likelihood that a reasonable examiner would have considered the *330 omitted reference or false information important in deciding whether to allow the application to issue as a patent. American Hoist, 725 F.2d at 1362, 220 U.S.P.Q. (BNA) at 772-73. The PTO standard is the appropriate starting point because it is the broadest and because it most closely aligns with how one ought to conduct business with the PTO. American Hoist, 725 F.2d at 1363, 220 U.S.P.Q. (BNA) at 773.\nJ.P. Stevens, 747 F.2d at 1559.\n\n(2) Materiality of prior art to patents in issue\n\n(a) Type of art\n\"[P]rior art includes any relevant knowledge, acts, descriptions and patents which pertain to, but pre-date, the invention in question.\" Mooney v. Brunswick Corp., 663 F.2d 724, 733 (7th Cir.1981). There is no requirement that prior art be embodied in a commercial application. See MPEP §§ 2001.04 and 2001.06; Massachusetts Institute of Technology v. AB Fortia, 774 F.2d 1104, 1008-09 (Fed.Cir.1985).\n\n(b) Weight of prior art\nThe materiality standard of § 1.56(a) requires that a reasonable examiner would consider an undisclosed reference \"important in deciding whether to allow the application to issue as a patent.\" To be material under this test, prior art need not anticipate the claimed invention or make it obvious under 35 U.S.C. § 103. See Gardco Manufacturing, Inc. v. Herst Lighting Co., 820 F.2d 1209, 1214 (Fed.Cir. 1987). The fact that the claimed invention may be superior to withheld prior art may be a basis for patentability, but does not \"serve automatically to render the withheld prior art either cumulative or immaterial.\" Merck & Co. v. Danbury Pharmacal, Inc., 873 F.2d 1418, 1421 (Fed.Cir.1989). To be material the prior art need only be \"within a reasonable examiner's realm of consideration.\" Id. at 1421.\nThe degree of materiality of prior art will vary according to its closeness to the invention claimed in the application. To the extent that undisclosed prior art includes \"key\" or \"important\" steps of a patent in issue, its materiality increases. J.P. Stevens, 747 F.2d at 1562-63. Conversely, evidence that uncited prior art is \"less pertinent than or merely cumulative to prior art or information cited to or by the PTO\" may rebut a claim of materiality. FMC Corp. v. Manitowoc Co., Inc., 835 F.2d 1411, 1415 (Fed.Cir.1987). In considering materiality for purposes of determining inequitable conduct, the issue is whether there are similarities between the prior art and the patents in issue not whether there are also differences. J.P. Stevens, 747 F.2d at 1562-63. Both claims and disclosures of the patent in issue must be compared to the disclosures of the uncited prior art to determine the materiality of the prior art for inequitable conduct purposes. J.P. Stevens, 747 F.2d at 1566.\nThe applicant's subjective belief of the invalidity of a prior patent does not prevent it from being material. See Driscoll v. Cebalo, 731 F.2d 878, 885 (Fed.Cir.1984). On the other hand, testimony by the applicant's witnesses that prior art \"would be pertinent for consideration\" will establish materiality. Argus Chemical Corp. v. Fibre Glass-Evercoat Co., 759 F.2d 10, 14 (Fed.Cir.), cert. denied, 474 U.S. 903, 106 S. Ct. 231, 88 L. Ed. 2d 230 (1985).\n\n(3) Knowledge of the patent examiner as affecting materiality\nProof that the examiner actually knew of the undisclosed prior art in the sense that he \"actually recalled [its] critical aspects,\" when examining the application in issue can preclude a finding of materiality. J.P. Stevens, 747 F.2d at 1563-64 and n. 10. A possibility that the examiner may have been aware of the art is a factor to be considered, but will not by itself preclude a finding of materiality. Id.\nWhere inequitable conduct is alleged there is no presumption that the examiner was aware of prior art in classes he searched but did not cite. Driscoll v. Cebalo, 731 F.2d at 885. Even where the alleged prior art patent was assigned to the same examiner as the patent in issue, there is no presumption that the examiner actually knew the other patent was material if it *331 was not cited to him in connection with the pending application. J.P. Stevens, 747 F.2d at 1563-64 and n. 10; FMC Corp. v. Hennessy Industries, Inc., 836 F.2d 521, 526-27 (Fed.Cir.1987).[2] A rule requiring such a presumption would dilute the applicant's duty of candor, would unfairly shift the burden of disclosure to the examiner, see Armour & Co. v. Swift & Co., 466 F.2d 767, 779 (7th Cir.1972) (\"[W]e think it is unfair to a busy Examiner no matter how diligent and well informed he may be, to assume that he retains details of every pending file in his mind when he is reviewing a pending application.\"), and would be inconsistent with the PTO's own procedures. See MPEP § 2004.9 (§ 2004.8 at the times in issue).\n\nD. Intent\n\nThe threshold level of intent does not require evidence of deliberate scheming and need not be proved by direct evidence. J.P. Stevens, 747 F.2d at 1560. Direct proof of intent to mislead is difficult to obtain and is normally absent. See Rohm & Haas Co. v. Crystal Chemical Co., 722 F.2d 1556, 1571 (Fed.Cir.1983), cert. denied, 469 U.S. 851, 105 S. Ct. 172, 83 L. Ed. 2d 107 (1984). Thus, \"circumstantial evidence may permit an inference of intent.\" Klein v. Peterson, 866 F.2d 412, 415 (Fed.Cir.), cert. denied, ___ U.S. ___, 109 S. Ct. 2432, 104 L. Ed. 2d 989 (1989). Intent may be proved \"by showing acts the natural consequences of which [were] presumably intended by the actor.\" J.P. Stevens, 747 F.2d at 1560. While withholding a single piece of material prior art may suffice to establish inequitable conduct, a pattern or series of such omissions \"clearly indicates a disdain for the administrative process that cannot be rationalized as an honest mistake, and such a pattern provides strong support for a ruling of inequitable conduct.\" A.B. Dick, 617 F.Supp. at 1396.\n\n(1) Actual knowledge\nThe applicant's knowledge of the existence and relevance of uncited prior art is a critical issue in determining his intent. See FMC Corp. v. Manitowoc Co., 835 F.2d at 1415. Normally an applicant is only required to disclose material prior art of which he or his attorney is aware; not to conduct a prior art search and disclose art of which he could have been aware. FMC Corp. v. Hennessy Industries, Inc., 836 F.2d at 526 n. 6. However, if the applicant does conduct a search for prior art, or otherwise learns of it, his duty of disclosure is gauged by the prior art uncovered in that search.\n\n(2) Gross negligence\nIntent may also be proved by evidence that the applicant was grossly negligent in failing to disclose prior art that he knew, or should have known, would be material to the PTO's consideration. J.P. Stevens, 747 F.2d at 1564; Driscoll v. Cebalo, 731 F.2d at 885. Gross negligence as used in this context is present if an applicant or his attorney, \"judged as a reasonable person in his position, should have known of the materiality of a withheld reference.\" J.P. Stevens, 747 F.2d at 1560. Gross negligence may encompass the reasonableness of the applicant's alleged ignorance of both the existence and the materiality of prior art. Although gross negligence by the applicant may support a finding of intent to mislead, it does not compel such a finding. Kingsdown Medical Consultants, Ltd. v. Hollister Inc., 863 F.2d 867, 873, 876 (Fed.Cir. 1988), cert. denied, ___ U.S. ___, 109 S. Ct. 2068, 104 L. Ed. 2d 633 (1989); J.P. Stevens, 747 F.2d at 1566-67. The conduct amounting to gross negligence \"must be sufficient to require a finding of deceitful intent in the light of all the circumstances.... including evidence indicative of good faith [by the applicant].\" Kingsdown, 863 F.2d 873, 876.\n\n\n*332 (3) Good faith of the applicant\nThe applicant's good faith belief that he disclosed all known material prior art is relevant to his intent under both the actual knowledge and gross negligence analyses. Like any fact issue, a claim of good faith belief must be evaluated in light of the objective reasonableness of that belief under all of the circumstances. See Argus Chemical, 759 F.2d at 14-15; Rohm & Haas, 722 F.2d at 1571; Norton v. Curtiss, 433 F.2d 779, 795-96 (C.C.P.A.1970). Otherwise, \"`[a] mere denial of intent to mislead ... would defeat every effort to establish inequitable conduct....'\" FMC Corp. v. Manitowoc Co., 835 F.2d at 1416. The weight to be afforded subjective intent will necessarily diminish as it becomes more and more unreasonable in light of all of the circumstances. Id. To measure the reasonableness of an applicant's professed good faith belief of immateriality, a trial court must determine if \"an actor in applicant's position would have reasonably known that the reference was material.\" Rolls-Royce Ltd. v. GTE Valeron Corp., 800 F.2d 1101, 1107 (Fed.Cir.1986), quoting J.P. Stevens, 747 F.2d at 1564; accord, Argus Chemical, 759 F.2d at 14-15.\nParticularly relevant in evaluating evidence of subjective intent are the applicant's contemporaneous expressions regarding materiality before litigation arose. See, e.g., J.P. Stevens, 747 F.2d at 1565-66 (applicant's license of uncited patent \"evinces knowledge of [its] importance\"). Where contemporaneous evidence shows that the applicant appreciated the relevance of uncited prior art, his later claim of subjective good faith will not avoid a finding of intent to mislead. Id. at 1566-67.\nSimilar to an applicant's good faith denial of intent to mislead is his professed good faith ignorance of prior art. A claim of good faith ignorance of prior art must be assessed in light of the information available to the applicant of which he should have been aware. FMC Corp. v. Hennessy Industries, Inc., 836 F.2d at 526 n. 6. Although an applicant is not presumed to know of the existence of all material prior art, Kimberly-Clark Corp. v. Johnson & Johnson, 745 F.2d 1437, 1454 (Fed.Cir. 1984), he cannot \"cultivate ignorance.\" FMC Corp. v. Hennessy Industries, Inc., 836 F.2d at 526 n. 6. Since an applicant's duty of disclosure is subject to a duty of reasonable inquiry, see MPEP § 2001.02, evidence that an applicant avoided knowledge of the existence or relevance of prior art may negate his attempt to assert subjective good faith as a defense to intent to mislead.\nAlthough an applicant's good faith belief that uncited prior art was not material may rebut an inference of intent to mislead, his mistaken contemporaneous belief that uncited prior art was material cannot be rebutted by later proof that the art was not, in fact, material. This conclusion is compelled by the language of § 1.56(a), which links the applicant's duty of disclosure to his \"awareness\" and by the duties of candor and trust that underlie the rule. An applicant's failure to disclose art that his contemporaneous actions showed he believed to be material will permit an inference of intent to mislead notwithstanding his post hoc protestations of subjective good faith and immateriality. See J.P. Stevens, 747 F.2d at 1566-67.\n\nIII. FINDINGS OF FACT AND CONCLUSION OF LAW\nTo assess the alleged inequitable conduct of Halliburton in failing to disclose prior art, it is necessary to compare the claims and disclosures of the Halliburton patents in suit with the prior art that Halliburton disclosed to the PTO and the additional prior art that Schlumberger contends Halliburton should have disclosed. Schlumberger alleges that Halliburton should have disclosed the following prior patents to the PTO:\n(a) Patent No. 4,326,129 (the \"Neufeld '129 patent\");\n(b) Patent No. 3,930,152, No. 3,940,611, No. 3,940,613 and No. 3,979,300 (the \"Texaco patents\");\n(c) Patent No. 3,164,720 and No. 3,256,438 (the \"Armistead patents\"); and\n(d) Patent No. 3,733,486 and No. 4,002,904 (the \"skip-a-beat patents\").\n\n*333 Based upon the evidence in this case the Court makes the following findings of fact and conclusion of law.\n\nA. General\n\nFinding 1 Halliburton did not disclose any of the alleged prior art patents to the PTO. The disclosures of prior art in the \"Prior Art\" sections of the Halliburton '444, '481 and '529 patent applications are identical. None of the applications cite any references to prior art. Each discloses in general terms two commercial thermal neutron decay logging systems that were available when the applications were filed. Both systems timed out the borehole, which means that neither measured the entire neutron decay curve or determined a separate borehole decay component.\nFinding 2 The examiner cited six prior patents as references in the patents in suit, but did not cite any of the alleged prior art patents as references. All of the patents cited by the examiner timed out the borehole. None of them measured the entire neutron decay curve or determined a separate borehole decay component.\nFinding 3 The '529 patent (Defendant's Ex. 13) issued on June 14, 1983. The application for this patent (Defendant's Ex. 148) was filed in August of 1980. Notice of allowance was issued in April of 1982 listing six patents as references (Defendant's Ex. 148, pp. 42-44). Halliburton refiled this application on June 23, 1982, with broadened claims as a continuation application (Defendant's Ex. 149) and then abandoned the original application. No changes were made in the disclosure of prior art.\nFinding 4 The '481 patent (Defendant's Ex. 401) issued on October 11, 1983. The application for this patent (Defendant's Ex. 151) was filed in August of 1980. Notice of allowance was issued in March of 1982 listing six patents as references. Halliburton filed a continuation application on June 1, 1982, making certain changes to drawings (Defendant's Ex. 152) and then abandoned the original application. No changes were made to the disclosure of prior art.\nFinding 5 The '444 patent (Defendant's Ex. 14) issued on January 3, 1984. The application for this patent (Defendant's Ex. 150) was originally filed in August of 1980. Notice of allowance was issued in April of 1982 listing six patents as references. Halliburton filed a continuation application on July 1, 1982 (Defendant's Ex. 402), and then abandoned the original application. Minor changes were made to the claims, but no changes were made to the disclosure.\nFinding 6 The principal invention of the patents in suit is their method for measuring and simultaneously decomposing the entire neutron decay curve into the borehole and formation components by assuming that the decay curve is described by a two-exponential relationship. Other features of the invention are the use of repetitive emissions of relatively short bursts of fast neutrons, detecting the borehole and formation decay components in at least four subsequent time intervals or \"gates,\" and detecting and correcting for background radiation. (See, e.g., Claims 1, 2 and 33 of the '444 patent).\nFinding 7 The two-exponential formula used to decompose the neutron decay curve is set out in Equation (4) of each patent in suit as follows:\nC'(t) = Ae -t/ τB + Be -t/ τF\nwherein C'(t) is the background-corrected counting rate at any time t; A and B are the amplitudes of the borehole and formation components at t=O, respectively; and τB and τF are the borehole and formation decay times.\nFinding 8 Dr. Dan Arnold, Vice-President of Technology for Halliburton Logging Services, and one of the inventors of the '444 patent, testified that the most significant feature of the inventions in the patents in suit was the simultaneous measurement of τB and τF. The titles and abstracts prepared by Halliburton for the patents in suit also emphasize this aspect of its claimed inventions.\n\nB. The Neufeld '129 Patent\n\n\n(1) Materiality and knowledge\nFinding 9 The Neufeld '129 patent (Defendant's Ex. 9) issued on April 20, 1982, *334 on application No. 149,276, filed on May 12, 1980, as a continuation-in-part of application No. 904,591, filed on May 10, 1978.\nFinding 10 Like the patents in suit, the Neufeld '129 patent disclosed a means of improving on prior art. Neufeld disclosed measuring the entire decay curve and evaluating both the borehole and formation components of the decay curve by using a two-exponential formula. Equation (4) of the Neufeld '129 patent disclosed the same two-exponential formula to analyze the decay curve as equation (4) of the patents in suit. Neufeld also disclosed using relatively short bursts of neutrons to measure the decay curve.\nLike the patents in suit, Neufeld also recognized the advantages of measuring the borehole component of the decay curve. The \"timing out\" prior art did not measure gamma rays until enough time had passed that it was presumed that gamma rays associated with borehole capture had dissipated. This technique was based on the assumption that borehole decay occurred more rapidly than formation decay. (See, e.g., Column 1, Lines 21-25, and Column 2, Lines 52-63, of the '529 patent, Defendant's Ex. 13). The assumption proved correct when, for example, there were drilling fluids in the borehole with a high chlorine content. In that situation, neutron decay occurred rapidly in the borehole, and gamma ray measurements made after the borehole had been timed out could yield useful information about the formation. When the borehole contained air, gas, fresh water or oil, however, neutron decay in the borehole was much slower, and gamma rays from borehole decay overlapped to a considerable degree those from formation decay. Since neither Neufeld nor the patents in suit rely on assumptions as to the relative borehole and formation decay times, both Neufeld and the patents in suit solve this problem. Their common solution provided the additional advantage of allowing the use of all available gamma ray data following a neutron burst.\nFinding 11 There are differences between the Neufeld '129 patent and the patents in suit: (1) Neufeld discloses random or pseudo-random neutron pulses, while the inventions claimed in the patents in suit use non-random pulses; (2) the inventions claimed in the patents in suit detect gamma rays between pulses during at least four subintervals after each pulse, while Neufeld does not detect gamma rays only between pulses and does not specify the number of subintervals during which gamma rays should be detected; and (3) after Neufeld detects gamma rays, it performs a correlation technique on the resulting data to derive a decay curve, while the patents in suit use raw gamma ray detection data to derive a decay curve.\nFinding 12 Halliburton learned of the Neufeld '129 patent no later than early July of 1982 after one of its in-house patent counsel, William J. Beard, read about it in the Patent Office Official Gazette. Beard was then prosecuting all of the continuation applications leading to the patents in suit. Between the time Halliburton learned of the Neufeld '129 patent and the issuance of the patents in suit, Halliburton believed that Neufeld disclosed the key feature of the inventions of the patents in suit. The evidence of this belief, which is summarized below, is inconsistent with Halliburton's litigation position that the Neufeld '129 disclosures were materially different from the inventions claimed in the patents in suit.\nWhen Beard obtained and read the Neufeld '129 patent he realized that it disclosed the simultaneous calculation of τB and τF by means of a two-exponential formula. Dr. Arnold reviewed the Neufeld '129 patent and reported to the president of the Welex Division of Halliburton that the basic teachings of the Neufeld patent were close to the TMD tool that embodied the inventions of the patents in suit. As a result of that meeting Halliburton decided to purchase the Neufeld patent, not to obtain technology to use in its TMD tool, but to avoid having the Neufeld patent asserted against the TMD tool.\nContrary to Halliburton's litigation position that Neufeld is immaterial, in 1982 Beard recommended buying the Neufeld '129 patent because its disclosure was *335 broad enough to support claims that could cover the TMD tool. After receiving approval from senior Halliburton management, Beard became responsible for buying the patent from Neufeld. Beard employed an outside attorney to negotiate with Neufeld. Beard told the attorney that Halliburton was interested in the '129 patent because it was related to the TMD project. The attorney was instructed not to disclose Halliburton's identity to Neufeld until after an agreement had been reached to buy his patent rights. Halliburton approved hiring a private detective to investigate Neufeld to identify any vulnerabilities that could be exploited during these negotiations. Beard closely monitored dealings with Neufeld, kept Halliburton senior legal and management officials abreast of the investigation of Neufeld and negotiations with him, and urged Halliburton management to increase the amount it was willing to pay Neufeld.\nWhen Halliburton purchased the Neufeld '129 patent on April 13, 1983, after months of negotiations, for $53,500.00, Beard traveled to Neufeld's home in Tennessee where he revealed Halliburton's interest in the patent and told Neufeld that Halliburton intended to file another application expanding Neufeld's original claims to cover the Halliburton TMD tool. On April 18, 1983, Beard wrote Neufeld a follow-up letter (Defendant's Ex. 130) stating:\nThe object of this [application] will be to seek broader and more appropriate claim coverage based on your original disclosure to the Patent Office, of your multiple disclosed inventions. In this regard I am enclosing a Welex technical publication entitled \"Thermal Multigate Decay Logging.\" This publication discloses in some detail the operation of the commercial Welex logging system for simultaneously measuring the borehole and formation components of thermal neutron decay time and macroscopic capture cross section. I would be interested in obtaining your suggestions for suitable claim language, based on your original disclosure, of claims broad enough to read on such a system.\nAfter drafting the new application, Beard sent a copy of it to Neufeld by letter dated May 10, 1983, \"Re: Continuation Application to more fully cover disclosed inventions\" (Defendant's Ex. 337) in which he explained that:\nThe aim of this application is to provide more complete claim coverage on inventions disclosed but not claimed in your original May 10, 1978 patent application, now assigned to Halliburton.\nOn June 1, 1983, Beard filed on behalf of Neufeld an application using Neufeld's original disclosure, with greatly expanded claims, which ultimately led to the issuance on March 5, 1985, of patent No. 4,503,328 (Defendant's Ex. 10).\nBeard testified that when he prepared the '328 application, at a time when all three of the patents in suit were still pending before the PTO, he concluded that the Neufeld '129 disclosure was broad enough to cover the measurement of count rate data in time gates and was broad enough to cover either a random or a periodic pulsed system. This testimony, and the '328 claims that Beard prepared,[3] are inconsistent with Halliburton's litigation position that the Neufeld '129 patent was immaterial to the patents in suit because of the different techniques it disclosed.\nIn December of 1984, when Halliburton was investigating the possibility of bringing this action, Beard wrote outside counsel \"Re: Schlumberger TDT-MB Tool Vis-a-Vis Welex TMD Patents.\" (Defendant's Ex. 391). In that letter Beard stated: \"At first blush it appears to me that claims in ... 4,326,129 ... can be read on the TDT-MB.\" Consistent with this belief Halliburton asserted both the Neufeld '129 and '328 patents against the Schlumberger TDT-MB *336 system, which is not randomly pulsed, for almost two years in this action.\nFinding 13 Patent examiner David L. Willis examined the applications for the patents in suit during the same time frame that he examined the Neufeld '129 application and did not cite Neufeld as a reference in the patents in suit.[4] Willis performed update searches for the patents in suit after the Neufeld '129 patent issued and searched in classes and subclasses where Neufeld had been filed. However, none of the Halliburton applications cited Neufeld, and Willis testified that he did not recall being aware of Neufeld when he examined the Halliburton applications.\nGiven the workload of examiners, the number of patents filed in the common class and subclasses, and, in particular, the complexity of this art even to those intimately familiar with it, it is not reasonable to assume that Willis recalled the critical aspects of Neufeld when he examined the Halliburton applications. Had Halliburton desired to leave a clear record that Willis considered Neufeld (or any of the other alleged prior art patents), but rejected it as immaterial, it could have easily done so by citing Neufeld.[5] Since Halliburton failed to do so, this Court will not presume knowledge of Neufeld by Willis to extricate Halliburton from the present state of the evidence, which shows only a possibility of awareness by Willis, and therefore does not preclude a finding that Neufeld was material.\nFinding 14 The Neufeld '129 patent was very material to the applications that became the patents in suit. It disclosed the key feature of the patents in suit and was more material in this regard than the prior art cited by Halliburton and the six patents listed as references by the examiner. Furthermore, even if Neufeld were not in fact material, from no later than July of 1982 through the dates of issuance of the patents in suit Halliburton believed that the Neufeld '129 patent was very material to the inventions claimed in the patents in suit.\n\n(2) Intent to mislead\nFinding 15 In this litigation Beard testified that he \"did not give conscious consideration as to whether to cite or not cite the Neufeld patent during the prosecution of the Halliburton patents-in-suit.\" (Defendant's Ex. 138, para. 5). Beard also testified that he never intended to act inequitably toward the PTO. Even though Beard was involved after June of 1982 on a regular basis in dealings with the PTO concerning the continuation applications for the patents in suit, he did not disclose the Neufeld '129 patent to the PTO. Although Beard's affidavit (Defendant's Ex. 138) states that he knew the examiner handling the Halliburton applications had handled the Neufeld '129 patent, there was no testimony from Beard or any other witness that Halliburton believed or knew that Examiner Willis appreciated the significance of the Neufeld patent disclosures to the patents in suit.\nFinding 16 If, as he testified, Beard did not consciously consider whether to cite the Neufeld '129 patent, that failure, in light of all of the attendant circumstances, constitutes gross negligence because a reasonable person in Beard's position should have known of the materiality of Neufeld and disclosed it to the PTO. Beard's testimony that he did not intend to act inequitably toward the PTO is inconsistent with contemporaneous evidence discussed in Finding 12. That evidence establishes that after June of 1982 Halliburton, and Beard in particular, believed Neufeld to be material prior art. Under these circumstances a reasonable applicant would have realized, when it filed continuation applications in *337 June and July of 1982, or shortly thereafter, that the prior art disclosures in those applications were deficient and that the Neufeld '129 disclosure would be material to the PTO's examination of those applications. Notwithstanding Halliburton's testimony of its good faith belief, in light of all of the attendant circumstances, the evidence of Halliburton's gross negligence is sufficient to require this Court to find that Halliburton intended to mislead the PTO.\nFinding 17 Since Halliburton had actual knowledge of both the existence and materiality of the Neufeld '129 disclosures, the evidence establishes an inference of intent to mislead apart from the preceding finding, which is based on Halliburton's gross negligence. Beard's only explanation for failing to cite the Neufeld patent was that he never considered whether to cite it. This lack of consideration cannot be based on a lack of knowledge of the Neufeld '129 patent or its materiality since the facts unmistakably show that he was aware of the materiality of Neufeld. Under these facts, Beard's justification is both unpersuasive and inconsistent with his continuing duty of candor and disclosure under 37 C.F.R. § 1.56(a).\n\nC. The Texaco Patents\n\n\n(1) Materiality and knowledge\nFinding 18 Each of the Texaco patents (Defendant's Exs. 5, 6, 7 and 8) discloses the key feature of the patents in suit, the use of the two-exponential equation to simultaneously obtain τB and τF. (See, e.g., the '611 patent, Column 6, and equation (3)). The Texaco patents, like the Halliburton and Neufeld patents, recognize the advantages of measuring the borehole component of the decay curve. The Texaco patents describe this invention as an advance over prior timing out techniques. The Texaco patents are different from the patents in suit in that they use a harmonically intensity modulated source of fast neutrons instead of the pulsed source method claimed by the patents in suit. Nevertheless, since they disclose use of the two-exponential formula to simultaneously obtain τB and τF, the Texaco patents are more material than the prior art cited by Halliburton or the prior art references selected by the examiner.\nFinding 19 Halliburton was aware of the materiality of the Texaco patents to the patents in suit. Dr. Arnold was one of the inventors of the Texaco '611 and '300 patents. Mr. Beard prosecuted all four of the patents when he and Dr. Arnold worked for Texaco before joining Halliburton. A comparison of the similarities in the language Beard used in drafting the Texaco '611 patent and the '444 patent in suit led Dr. Arnold (and this Court) to conclude that Beard used the '611 patent as a guide to draft the '444 patent.[6] Beard testified that he had no recollection of preparing the Halliburton applications and no notes or drafts of any of them.\nIn connection with an infringement search, in January of 1982 outside counsel sent Beard a lengthy list of \"relevant art\" concerning the proposed TMD system. (Defendant's Ex. 390). All four of the Texaco patents were on the list and three of them were noted as already being in Beard's files. Beard testified that after receiving this letter, he did not review the patents listed because Halliburton was then in the process of licensing various patents from Texaco. He testified that he later reviewed a group of patents on this list selected by his outside counsel, but that the Texaco (and Armistead) patents were not among this group.\n\n(2) Intent to mislead\nFinding 20 Halliburton was grossly negligent in failing to disclose any of the Texaco patents to the PTO. A reasonable applicant's attorney, knowing (1) that his own outside counsel considered the Texaco patents to be material prior art to the TMD tool, (2) that he used one of the Texaco patents as a template for drafting the applications for the patents in suit, and (3) that in March and April of 1982 the examiner *338 had not referenced any prior art that disclosed the key feature of Halliburton's invention, would have disclosed one or more of the Texaco patents to the PTO. Beard's statement that he \"did not give conscious consideration as to whether to cite the Texaco patents during the preparation or prosecution of the Halliburton patents-in-suit\" (Defendant's Ex. 138, para. 3), is inconsistent with the continuing duty to disclose material prior art to the PTO and with the contemporaneous evidence of materiality. In light of all of the attendant circumstances, the evidence of gross negligence is sufficient to require a finding of intent to mislead.\n\nD. The Armistead '438 Patent\n\n\n(1) Materiality and knowledge\nFinding 21 Like the Halliburton patents, the Armistead '438 patent discloses measuring the entire neutron decay curve and analyzing it as the sum of two exponentially decaying borehole and formation components to decompose it into τB and τF. (See Figures 9A, 9B and 10 and Column 13, Line 46 to Column 14, Line 10). However, because the primary method for decomposing the decay curve in Armistead involves solving for the components graphically, it is less material than the disclosures in the Neufeld '129 and the Texaco patents. Armistead is nevertheless more material than the commercial art disclosed by Halliburton or the patents referenced by the examiner, none of which disclosed this key feature.\nFinding 22 The Armistead '438 patent was listed as \"relevant art\" in the January 1982 letter to Beard (Defendant's Ex. 390) and was noted as being in Beard's files. This patent was also one of a number that Halliburton licensed from Texaco in negotiations that began in late 1981 and ended in March of 1983 with a License Agreement (Defendant's Ex. 97). Beard testified that he never reviewed the Armistead patent in connection with the Texaco negotiations or the clearance search and did not recall seeing it until this litigation. Although Beard was partially contradicted by the testimony of Harry Smith, a Halliburton physicist and one of the inventors of the Halliburton '481 patent, that Beard gave him a group of Texaco patents to review in connection with the Texaco license negotiations, there was no other evidence (such as discussed in the first paragraph of Finding 19 concerning the Texaco patents and in Findings 27 and 28 concerning the skip-a-beat patents) that Halliburton believed Armistead to be material.\n\n(2) Intent to mislead\nFinding 23 Beard knew of the existence of the Armistead '438 patent and knew that his outside counsel considered it to be one of 150 prior patents that were relevant art in connection with an ongoing clearance search. Although a careful applicant might have reviewed all of these patents for possible relevance to the pending applications, and might have disclosed the Armistead '438 patent to the PTO, the failure of Halliburton to do so under these circumstances does not rise to the level of gross negligence or constitute evidence of intent to mislead.\n\nE. The Skip-A-Beat Patents\n\n\n(1) Materiality and knowledge\nFinding 24 Halliburton's '444 patent contains claims (11-21) that relate to a method for simultaneously determining the borehole and formation components of thermal neutron decay, in which the normal repetitive emission of neutron bursts is periodically interrupted, or suppressed, for a fixed period of time during which background radiation is measured. The background count measurement is then subtracted from the decay curve count signals to correct them for background radiation. In the method described in the Halliburton '444 patent, neutron pulses are generated at the rate of 1,000 bursts per second. Gamma rays representing the thermal neutron population are detected by six time gates during the intervals between the first 945 bursts, and the neutron bursts are then suppressed for approximately 55 milliseconds. During the final 50 milliseconds of the suppression period the background count rate is measured and then subtracted from the thermal neutron population measurements made during the first 945 bursts *339 to correct them for background radiation. The '481 and '529 patents also incorporate this skip-a-beat feature (e.g., Claim 1 of the '481 patent, lines 52-59; Claims 7 and 8 of the '529 patent).\nFinding 25 The Texaco '486 patent (Defendant's Ex. 158) discloses a well logging technique in which neutron bursts are generated at the rate of 1,000 bursts per second, radiation representative of the thermal neutron population is detected during time gates between the first 985 bursts, and the bursts are then suppressed during the remaining 15 milliseconds of the operating cycle, during the last 10 milliseconds of which background radiation is measured. This background count is subtracted from the count signals obtained from the detection of radiation during the first 985 bursts of the operating cycle to correct those count signals for background radiation.\nFinding 26 The Texaco '904 patent (Defendant's Ex. 159) discloses a thermal neutron decay well logging tool in which neutron bursts are generated at the rate of 1,000 bursts per second, radiation representative of the thermal neutron population is detected in time gates during each of the intervals between the first 945 bursts, and the bursts are then suppressed for a fixed time period, during the last 50 milliseconds of which background radiation is measured. The background count is subtracted from the count signals generated from the earlier bursts to provide a correction for background radiation.\nFinding 27 The technique of suppressing neutron bursts to detect the background radiation in a thermal neutron decay time tool (as disclosed in the Texaco '486 and '904 patents) was well known to Halliburton's former Texaco employees prior to the filing of the applications for the patents in suit. Dr. Arnold was one of the inventors on both patents, and Mr. Beard prosecuted the '904 patent. This technique was referred to by them as the Texaco \"skip-a-beat\" technique. In their internal Halliburton Patent Disclosure Record (Defendant's Ex. 100) prepared in September of 1979, the inventors of the '444 patent expressly referred to the '486 patent as explaining a background subtraction method such as used in the '444 patent.\nFinding 28 Both of the skip-a-beat patents are listed as \"relevant art\" in the January 1982 letter to Beard. (Defendant's Ex. 390). In addition, the '486 patent is one of seven patents \"identified as presenting potential infringement problems\" in a later, June 15, 1982, letter from the same outside counsel to Halliburton \"Re: Studies Concerning New Welex Pulsed Neutron Well Logging System....\" (Defendant's Ex. 389). In 1982 when the TMD tool was being finalized, Smith was aware that the background technique it used was very similar to the technique disclosed in the skip-a-beat patents.\nThe skip-a-beat patents were among those licensed from Texaco in March of 1983 after eighteen months of negotiations. (Defendant's Ex. 97). Beard testified that neither he nor anyone else at Halliburton reviewed the patents to be licensed from Texaco during these negotiations because payments under the license agreement were based on use of the TMD tool rather than use of a particular Texaco patent. The Court does not find this testimony to be credible. Smith testified that he reviewed a group of Texaco patents and discussed with Beard the patents that he thought should be licensed. In addition, the fact that the license includes the Armistead and skip-a-beat patents, but not the '152, '611, '613, or '300 patents, is evidence that some conscious analysis and selectivity occurred during these negotiations. Finally, it defies common sense and experience that senior scientists and lawyers would negotiate a patent licensing agreement for eighteen months without ever reviewing the patents to be licensed.\nFinding 29 The skip-a-beat patents were material prior art, and the background subtraction technique they disclosed was not disclosed in the applications for the patents in suit and was not disclosed by the examiner's prior art references in the patents in suit. Although five of the six reference patents (all except the '590) did disclose a background subtraction feature, the technique they disclosed was significantly different *340 from that disclosed in the patents in suit and the skip-a-beat patents.\n\n(2) Intent to mislead\nFinding 30 Given (1) the absence of any disclosure of the skip-a-beat background subtraction technique in the applications for the patents in suit, (2) the fact that the materiality of these patents was brought to Beard's attention by Arnold and Smith in the September 1979 Patent Disclosure Record (Defendant's Ex. 100) before the initial Halliburton applications were filed, (3) the fact that the '486 patent was one of seven of 150 patents expressly identified in June of 1982 as presenting possible infringement problems for the TMD tool (Defendant's Ex. 389), and (4) the fact that the skip-a-beat patents were the subject of licensing negotiations with Texaco culminating with a license agreement in March of 1983 (Defendant's Ex. 97), a reasonable applicant would have disclosed at least one of the two skip-a-beat patents in the initial applications for the patents in suit and certainly would have disclosed one of them when continuation applications were filed in June and July of 1982.\nBeard testified that he did not cite these patents because he was unaware of them and testified that he never intended to act inequitably toward the PTO. In light of all of the contemporaneous evidence of Halliburton's awareness of the materiality of the skip-a-beat patents, Beard's testimony of ignorance and good faith intent is unpersuasive. Halliburton was grossly negligent in not disclosing the skip-a-beat patents, and the facts attendant to its gross negligence require a finding of intent to mislead.\n\nF. Summary\n\nFinding 31 There is clear and convincing evidence of the threshold level of materiality of the Neufeld '129 patent, the Texaco patents, the Armistead patent, and the skip-a-beat patents to the patents in suit.\nFinding 32 There is clear and convincing evidence that Halliburton, by its course of conduct, intended to mislead the PTO by not disclosing the Neufeld, Texaco, and skip-a-beat patents.\nConclusion of Law 1 Balancing the evidence of materiality and intent, the Court concludes that Halliburton was guilty of inequitable conduct and that the claims in the patents in suit are unenforceable.\n\nORDER\nThe Court ADJUDGES and DECREES that Patent Nos. 4,424,444, 4,388,529, and 4,409,481 are unenforceable.\n\n\n*341 APPENDIX I\n\n*342 \n*343 \nNOTES\n[1] Halliburton purchased the Neufeld '129 patent in April of 1983 and later prosecuted the Neufeld '328 patent as Neufeld's assignee.\n[2] Kimberly-Clark Corp. v. Johnson & Johnson, 745 F.2d 1437, 1457 (Fed.Cir.1984), is not inconsistent with this analysis. There the copending applications before the same examiner were filed by the same agent. The Federal Circuit concluded that those facts could permit a finding of actual knowledge by the examiner since in that situation the examiner had a duty to know the contents of the copending applications \"so as to be sure they claimed distinct inventions.\"\n[3] For example, Claim 1 of the '328 patent provides for generation of \"a relatively short duration discrete burst of fast neutrons....\" The same language appears in the Halliburton '529 patent in Claim 1, and similar language appears in Claim 9. Also, Claim 4 of the '328 patent provides for performing the detection steps \"during the time intervals between said bursts of neutrons.\" This is similar to Claim 9 of the '529 patent, which requires \"detecting ... during a time interval between said repetitive pulses of fast neutrons....\"\n[4] Willis was also the assistant examiner on the Texaco '152 patent (Defendant's Ex. 5), which issued on December 30, 1975, and the '486 skip-a-beat patent (Defendant's Ex. 158), which issued on May 15, 1973. However, there was no evidence that Willis recalled being aware of either patent when he examined the patents in suit. The Court does not find that Willis' prior involvement with the Texaco '152 and '486 skip-a-beat patents fifteen years before he examined the patents in suit precludes a finding that they were material.\n[5] 37 C.F.R. § 1.99 expressly provides a procedure for \"updating of prior art statements.\"\n[6] Defendant's Ex. 406, which compares certain language of the two patents, is attached to this memorandum as Appendix 1.\n\n",
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| S.D. Texas | District Court, S.D. Texas | FD | Texas, TX |
2,592,812 | null | 2010-02-05 | false | french-v-moore | French | French v. Moore | null | null | null | null | null | null | null | null | null | null | null | null | 0 | Published | null | null | [
"223 P.3d 323"
]
| [
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"opinion_text": "\n223 P.3d 323 (2010)\nFRENCH\nv.\nMOORE.\nNo. 102170.\nCourt of Appeals of Kansas.\nFebruary 5, 2010.\nDecision Without Published Opinion Reversed and remanded.\n",
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| Court of Appeals of Kansas | Court of Appeals of Kansas | SA | Kansas, KS |
241,733 | null | 1957-04-03 | false | j-c-martin-corp-a-corporation-and-jack-kaslow-and-seymour-orenstein | null | null | J. C. Martin Corp., a Corporation, and Jack Kaslow and Seymour Orenstein, Individually and as Officers of J. C. Martin Corp., and Jack Kaslow, Trading as K. W. Sales Company, and Seymour Orenstein, Trading as L & S Sales Company v. Federal Trade Commission | null | null | null | null | null | null | null | null | null | null | null | 3 | Published | null | null | [
"242 F.2d 530"
]
| [
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"download_url": "http://bulk.resource.org/courts.gov/c/F2/242/242.F2d.530.11859_1.html",
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"opinion_text": "242 F.2d 530\n J. C. MARTIN CORP., a corporation, and Jack Kaslow andSeymour Orenstein, Individually and as Officers of J. C.Martin Corp., and Jack Kaslow, Trading as K. W. SalesCompany, and Seymour Orenstein, Trading as L & S SalesCompany, Petitioners,v.FEDERAL TRADE COMMISSION, Respondent.\n No. 11859.\n United States Court of Appeals Seventh Circuit.\n April 3, 1957.\n \n Edward L. Smith, Washington, D.C., for petitioner.\n Robert B. Dawkins, Asst. General Counsel, John W. Carter, Jr., Attorney, Federal Trade Commission, Washington, D.C., Earl W. Kintner, General Counsel, Frank M. Whiting, Washington, D.C., Attorneys for Federal Trade Commission, for respondent.\n Before LINDLEY, SWAIM and SCHNACKENBERG, Circuit Judges.\n SWAIM, Circuit Judge.\n \n \n 1\n This matter comes here on a petition to review and set aside an order to cease and desist issued by the Federal Trade Commission at the conclusion of an administrative proceeding in which petitioners were charged with having engaged in unfair and deceptive acts and practices in commerce by the sale and distribution of merchandise to the public by means of a game of chance, lottery or gift enterprise in violation of Section 5 of the Federal Trade Commission Act, 52 Stat. 111, 15 U.S.C.A. 45.\n \n \n 2\n Petitioners are engaged in the sale and distribution of numerous and varied articles of merchandise including, among others, jewelry, silverware, kitchen utensils and toiletries. Practically all of petitioners' sales are made through members of the public acting as distributors or sales agents for petitioners' merchandise. dise. Petitioners obtain these agents or distributors by sending catalogues to persons whose names and addresses are obtained from mailing lists. The catalogues or sales circulars contain pictures and descriptions of various articles of merchandise offered as premiums or compensation to the distributor for his services in selling forty assorted articles of merchandise. The catalogue contains a list of forty articles of merchandise offered for sale with descriptive details for each item, including the name and price. There is a blank space opposite the name of each item for inserting the name of the purchaser. To the right of the articles listed for sale on the sales sheet there are forty perforated tabs. Even tab conceals the name and price of an article of merchandise corresponding to the name and price of an article in the list of merchandise offered for sale. Immediately above the block of pull tabs the following notice appears:\n \n \n 3\n 'This is a sales sheet. It is not a punchboard or a gambling device. Do not construe or accept for use as a gambling device.\n \n \n 4\n 'Here's how it works. You may purchase from the list shown on the left where the merchandise is described or you may pull any one of the slips below on the back of which is printed the article and price. If not satisfied with the item you picked you are not obliged to buy it.'\n \n \n 5\n As provided by the notice, a prospective purchaser has the option of purchasing directly from the descriptive list of merchandise or of pulling a tab to ascertain his purchase and the price to be paid. There is no price differential in regard to a particular article depending on whether a 'straight sale' or a 'pull tab sale' takes place. A purchaser may buy as many of any particular article as he wishes either outright or by means of the tabs. Whether or not an individual elects to purchase the article identified by a tab he has pulled, he does not pay anything for the privilege of pulling the tab. After a sale has been consummated, the name of the purchaser is written in the blank space opposite the name of the article purchased.\n \n \n 6\n When the person operating the catalogue has sold all of the articles and remitted the purchase price of the articles to the petitioners, petitioners ship to this person the merchandise so sold together with a premium as compensation for his services in operating the catalogue or sales circular. The distributor then delivers this merchandise to the respective purchasers whose names appear on the list which was filled out at the time the purchases were made.\n \n \n 7\n If the complete assortment is disposed of the distributor would collect $29.99 to remit to the petitioners. The distributor may elect to retain a specified percentage of this amount in lieu of the premium. In the event the distributor does not succeed in selling the complete assortment, he is not entitled to a premium but receives a cash commission on the articles sold. In the event that the distributor's sales exceed the amount represented by the complete assortment, he receives in addition to the regular premium a cash commission on the excess. Approximately 70 per cent of petitioners' sales made by means of the sales circular, which includes sales made through the use of the pull tabs and sales made outright, have been for the amount represented by a complete assortment of the forty items ($29.99), 20 per cent for amounts exceeding that figure and 10 per cent for amounts below that figure. Petitioners purchase the forty assorted articles as a complete, packaged unit and the success of their method of selling merchandise depends in large part upon the sale of not more nor less than a complete assortment. Otherwise inventories of the individual articles must be maintained and special packaging arrangements must be made when an order is to filled.\n \n \n 8\n The Commission found that petitioners' sales methods involve and contemplate the use of lottery devices in the sale and distribution of their merchandise to the public and constitute unfair acts and practices in commerce within the meaning of Section 5 of the Federal Trade Commission Act. Petitioners were ordered to cease and desist from:\n \n \n 9\n '1. Supplying to or placing in the hands of others pull cards or any other devices which are designed or intended to be used in the sale and distribution of (their) merchandise to the public by means of a game of chance, gift enterprise, or lottery scheme.\n \n \n 10\n '2. Selling or otherwise disposing of any merchandise by means of a game of chance, gift enterprise, or lottery scheme.'\n \n \n 11\n A lottery is a scheme for the distribution of prizes by lot or chance; it is a device whereby the amount of return an individual receives for the amount contributed by him is made to depend upon chance. Federal Trade Commission v. R. F. Keppel & Bro., 291 U.S. 304, 54 S. Ct. 423, 78 L. Ed. 814; Keller v. Federal Trade Commission, 7 Cir., 132 F.2d 59; Hofeller v. Federal Trade Commission, 7 Cir., 82 F.2d 647, certiorari denied 299 U.S. 557, 57 S. Ct. 19, 81 L. Ed. 410. The three essential elements of a lottery are: (1) the distribution of prizes (2) according to chance (3) for a consideration. Wolf v. Federal Trade Commission, 7 Cir., 135 F.2d 564. Cf. United States v. Rich, D.C.E.D.Ill., 90 F. Supp. 624.\n \n \n 12\n Petitioners contend, inter alia, that the Commission's findings are unsupported by substantial evidence. Petitioners urge that the notice to prospective purchasers that they are not obliged to buy the article identified by a tab eliminates the element of chance and consideration because the purchaser is entitled to reject his purchase after he ascertains what it is and the price to be paid. A similar contention was advanced and rejected by this court in Wolf v. Federal Trade Commission, 7 Cir., 135 F.2d 564, which involved an almost identical sales scheme. Petitioners insist, however, that there was a finding in the Wolf case that the notice was a subterfuge intended to avoid the consequences incident to the operation of a lottery scheme, whereas there is no such finding here. The difficulty with any argument based upon this notice is that it presupposes the very thing we are trying to decide. It the device constitutes a lottery, the law itself declares that a purchaser would not be bound to buy the article indicated by the tab. As was said in the Wolf case, 135 F.2d at page 566: 'This is no more than a recognition of the common law rule that a gambling transaction is unenforcible, and 'only the loser has recourse to the courts.\" If, on the other hand, the device does not constitute a lottery, then the legal significance of the notice would lie in the province of the law of contracts. Therefore, in regard to the issues presented by this case the notice may properly be disregarded.\n \n \n 13\n Petitioners next insist that since an individual has the option to purchase a desired article outright, rather than utilize the tab device, the element of chance is absent. This was also true in the Wolf case although the sales circular there did not contain a notice indicating to the purchaser that he had such an option as is the case here. In any event, we fail to see what comfort petitioners can gain from the fact that a prospective purchaser has this option. If an individual exercises his option to take a chance by pulling a tab can it be said that he has not taken a chance? The objection to the pull tab scheme cannot be removed by offering the individual an unobjectionable alternative.\n \n \n 14\n A more serious question is whether the pull tab device standing alone is a lottery scheme. We think it is not. Petitioners' sales method does not incorporate the element of prize which is the motivating factor or the inducement that accounts, in large part, for the success of virtually all forms of gambling-- the opportunity to get something for nothing.\n \n \n 15\n In order to constitute a lottery the elements of consideration, chance and prize must be present. The mere presence of chance does not constitute a lottery, nor will chance when coupled with consideration suffice. It is not chance in general with which we are concerned, but the chance of winning a prize, whether that chance be as to any return or merely as to the amount or value of the return. Federal Trade Commission v. R. F. Keppel & Bro., 291 U.S. 304, 54 S. Ct. 423, 78 L. Ed. 814; Keller v. Federal Trade Commission, 7 Cir., 132 F.2d 59; Hofeller v. Federal Trade Commission, 7 Cir., 82 F.2d 647, certiorari denied 299 U.S. 557, 57 S. Ct. 19, 81 L. Ed. 410. The only chance involved in the petitioners' scheme is as to the article to be purchased; there is no chance of prize in the sense of the amount or value of the thing to be received being dependent upon lot or chance. Of course, the mere fact that each purchaser receives a thing of value for his contribution does not negate the existence of a lottery. Keller v. Federal Trade Commission, 7 Cir., 132 F.2d 59. But where, as here, each participant in the scheme will in any event receive the equivalent of the amount contributed by him, and he is not under any hazard of pecuniary loss, nor offered the chance of receiving something of more value than the amount contributed by him, a lottery does not exist.\n \n \n 16\n The Commission was of the opinion that prize is present in petitioners' scheme 'because the some forty articles which may be obtained through the pull card vary widely in nature and might well prove to be either valuable or worthless, depending upon the situation of the particular individual receiving them. An article regarded as a 'prize' by one recipient might be wholly without use or value to another. For example, the cigarette lighter offered on one of (petitioners') circulars would be of value to a smoker, while valueless to a nonsmoker. Again, a man receiving the ten packages of razor blades included in the list probably would get his money's worth if he used a safety razor rather than an electric shaver and if the blades would fit his razor; otherwise the blades would be wholly without value to him.'\n \n \n 17\n We believe that it would be stretching the term lottery to the breaking point to sustain this finding of prize in petitioners' sales method. Admittedly, the Commission finds support for the validity of this finding in the Wolf case where a similar definition of 'prize' is stated. The Commission in the Wolf case had found that some of the merchandise offered by the petitioner had greater value and ordinarily sold at higher prices than the prices listed, thereby inducing purchasers to pull tabs in the hope that they would receive those articles of greater value than the price designated to be paid for them. The petitioner there also complained of the Commission's effort to find the element of prize in his method of sales and distribution. The court, after noting the finding concerning the relative values of the merchandise, said:\n \n \n 18\n 'We think we might go even further and find an element of prize in whether or not the purchaser drew a chance to buy an article that would be of any value to himself. To illustrate, a person needing razor blades might well consider himself a prize winner if he drew a chance to buy a package of them instead of a bottle of perfume which might be a total loss to him.' (Emphasis added.) 135 F.2d at page 567.\n \n \n 19\n We think the court went too far in defining 'prize'-- a definition which was not necessary to the court's decision. It was alleged in the complaint in the instant case that:\n \n \n 20\n 'Some of (petitioners') articles of merchandise have purported and represented retail values greater than the prices designated for them, but are distributed to the consumer for the price designated on the tab which he pulls. The prices of others of the articles are higher in proportion than the articles first mentioned. The apparent greater values of some of said articles induces members of the purchasing public to purchase the tabs or chances in the hope that they will receive articles of merchandise of greater value than the designated prices to be paid for same.'\n \n \n 21\n But the hearing examiner found that there was no evidence supporting these allegations. Since there is no finding here concerning the relative values of petitioners' merchandise, the Wolf case is not controlling.\n \n \n 22\n We are constrained to reject the finding of the Commission that petitioners' sales methods constitute a lottery scheme and, since our disposition of this issue is dispositive of the petition for review, we do not reach petitioners' other contentions.\n \n \n 23\n The petition for review is allowed and the Federal Trade Commission's order to cease and desist, entered in this matter on June 29, 1956, is vacated and set aside.\n \n ",
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| Seventh Circuit | Court of Appeals for the Seventh Circuit | F | USA, Federal |
11,616 | null | 1997-03-21 | false | capitol-house-v-perryman-consult | null | Capitol House v. Perryman Consult | null | null | null | null | null | null | null | null | null | null | null | null | 0 | Unpublished | null | null | null | [
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": 2,
"download_url": "http://www.ca5.uscourts.gov/opinions\\unpub\\96/96-30660.0.wpd.pdf",
"author_id": null,
"opinion_text": " IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n\n\n\n No. 96-30660\n\n\n\nCAPITOL HOUSE PRESERVATION COMPANY, LLC,\n\n Plaintiff-Appellant,\n\n versus\n\n\nPERRYMAN CONSULTANTS INCORPORATED; M RAY PERRYMAN, Doctor;\nXYZ INSURANCE; TUV INSURANCE; JAZZ ENTERPRISES, INC.; STEVE\nURIE; MARGARET URIE; MARK BRADLEY; RONALD JOHNSON; MARILYN J.\nJOHNSON; LODGING SYSTEMS, INC.; CATFISH QUEEN PARTNERSHIP IN\nCOMMENDAM; CPA ACCOUNTING FIRM; ARGOSY OF LOUISIANA, INC.;\nARGOSY GAMING CO.; PAULA BRADLEY,\n\n Defendants-Appellees.\n\n -------------------------------\n\nCAPITOL HOUSE PRESERVATION COMPANY, LLC.,\n\n Plaintiff-Appellant,\n\n versus\n\nJAZZ ENTERPRISES, INC.; STEVE URIE; MARGARET URIE;\nMARK BRADLEY; RONALD JOHNSON; MARILYN J. JOHNSON;\nLODGING SYSTEMS, INC.; CPA ACCOUNTING FIRM; XYZ INSURANCE CO.;\nCATFISH QUEEN PARTNERSHIP IN COMMENDAM; ARGOSY OF LOUISIANA,\nINC.; ARGOSY GAMING CO.; PAULA BRADLEY,\n\n Defendants-Appellees.\n\n\n\n\n Appeal from the United States District Court for the\n Middle District of Louisiana, Baton Rouge\n (95-CV-725-B-M2)\n\n March 11, 1997\n\fBefore GARWOOD, WIENER and DeMOSS, Circuit Judges.*\n\nPER CURIAM:\n\n Under Quackenbush v. Allstate, 116 S.Ct. 1712 (1996)——which the\n\ndistrict court did not have the benefit of——dismissal was not\n\nproper. Appellees have also agreed that developments since the\n\ndistrict court’s decision, including two of the state cases\n\nbecoming final, have rendered further stay inappropriate.\n\nAccordingly, the judgment is vacated and the cause is remanded for\n\nfurther proceedings.\n\n\n\n VACATED and REMANDED\n\n\n\n\n *\n Pursuant to Local Rule 47.5, the Court has determined that\nthis opinion should not be published and is not precedent except\nunder the limited circumstances set forth in Local Rule 47.5.4.\n\n 2\n\f",
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| Fifth Circuit | Court of Appeals for the Fifth Circuit | F | USA, Federal |
110,587 | Blackmun, Brennan, Burger, Marshall, Powell, Stevens, White | 1981-12-08 | false | widmar-v-vincent | Widmar | Widmar v. Vincent | WIDMAR Et Al. v. VINCENT Et Al. | Ted D. Ayres argued the cause for petitioners. With him on the brief was Jackson A. Wright., James M. Smart, Jr., argued the cause for respondents. With him on the brief was Michael K. Whitehead* | null | null | null | null | null | null | null | Argued October 6, 1981 | null | null | 824 | Published | null | <parties id="b381-4">
WIDMAR et al.
<em>
v.
</em>
VINCENT et al.
</parties><br><docketnumber id="b381-6">
No. 80-689.
</docketnumber><otherdate id="Add">
Argued October 6, 1981
</otherdate><decisiondate id="Ag_">
Decided December 8, 1981
</decisiondate><br><judges id="b382-7">
<span citation-index="1" class="star-pagination" label="264">
*264
</span>
Powell, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Marshall, Blackmun, Rehnquist, and O’Connor, JJ., joined. Stevens, J., filed an opinion concurring in the judgment,
<em>
post,
</em>
p. 277. White, J., filed a dissenting opinion,
<em>
post,
</em>
p. 282.
</judges><br><attorneys id="b382-8">
<em>
Ted D. Ayres
</em>
argued the cause for petitioners. With him on the brief was
<em>
Jackson A. Wright.
</em>
</attorneys><br><attorneys id="b382-9">
<em>
James M. Smart, Jr.,
</em>
argued the cause for respondents. With him on the brief was
<em>
Michael K. Whitehead
</em>
<a class="footnote" href="#fn*" id="fn*_ref">
<em>
*
</em>
</a>
</attorneys><div class="footnotes"><div class="footnote" id="fn*" label="*">
<a class="footnote" href="#fn*_ref">
*
</a>
<p id="b382-12">
Briefs of
<em>
amici curiae
</em>
urging reversal were filed by
<em>
Jerold Blumoff
</em>
and
<em>
Marc D. Stem
</em>
for the American Jewish Congress; and by
<em>
Justin J. Finger, Jeffrey P. Sinensky,
</em>
and
<em>
Meyer Eisenberg
</em>
for the Anti-Defamation League of B’nai B’rith.
</p>
<p id="b382-13">
Briefs of
<em>
amici curiae
</em>
urging affirmance were filed by
<em>
Joel H. Paget
</em>
for the Association for the Coordination of University Religious Affairs; by
<em>
Wilkes C. Robinson
</em>
and
<em>
Jane E. Nelson
</em>
for Bible Study; by
<em>
Edward McGlynn Gaffney, Jr.,
</em>
and
<em>
Kenneth F. Ripple
</em>
for the Center for Constitutional Studies et al.; by
<em>
Barry A. Fisher
</em>
for the Holy Spirit Association for the Unification of World Christianity; by
<em>
Nathan Lewin, Daniel D. Chazin,
</em>
and
<em>
Dennis Rapps
</em>
for the National Jewish Commission on Law and Public Affairs; and by
<em>
Wilfred R. Caron
</em>
for the United States Catholic Conference.
</p>
<p id="b382-14">
Briefs of
<em>
amici curiae
</em>
were filed by
<em>
Earl W. Trent, Jr.,
</em>
for the Baptist Joint Committee on Public Affairs; by
<em>
J. Robert Brame, John W. Whitehead,
</em>
and
<em>
James J. Knicely
</em>
for the National Association of Evangelicals; and by
<em>
Donald L. Reidhaar
</em>
for the Regents of the University of California.
</p>
</div></div> | [
"70 L. Ed. 2d 440",
"102 S. Ct. 269",
"454 U.S. 263",
"1981 U.S. LEXIS 134"
]
| [
{
"author_str": "Powell",
"per_curiam": false,
"type": "020lead",
"page_count": null,
"download_url": null,
"author_id": null,
"opinion_text": "\nJustice Powell\ndelivered the opinion of the court.\nThis case presents the question whether a state university, which makes its facilities generally available for the activities *265of registered student groups, may close its facilities to a registered student group desiring to use the facilities for religious worship and religious discussion.\nHH\nIt is the stated policy of the University of Missouri at Kansas City1 to encourage the activities of student organizations. The University officially recognizes over 100 student groups. It routinely provides University facilities for the meetings of registered organizations. Students pay an activity fee of $41 per semester (1978-1979) to help defray the costs to the University.\nFrom 1973 until 1977 a registered religious group named Cornerstone regularly sought and received permission to conduct its meetings in University facilities.2 In 1977, however, the University informed the group that it could no longer meet in University buildings. The exclusion was based on a regulation, adopted by the Board of Curators in 1972, that prohibits the use of University buildings or grounds “for purposes of religious worship or religious teaching.”3\n*266Eleven University students, all members of Cornerstone, brought suit to challenge the regulation in the Federal District Court for the Western District of Missouri.4 They alleged that the University’s discrimination against religious activity and discussion violated their rights to free exercise of religion, equal protection, and freedom of speech under the First and Fourteenth Amendments to the Constitution of the United States.\nUpon cross-motions for summary judgment, the District Court upheld the challenged regulation. Chess v. Widmar, 480 F. Supp. 907 (1979). It found the regulation not only justified, but required, by the Establishment Clause of the Federal Constitution. Id., at 916. Under Tilton v. Richardson, 403 U. S. 672 (1971), the court reasoned, the State *267could not provide facilities for religious use without giving prohibited support to an institution of religion. 480 F. Supp., at 915-916. The District Court rejected the argument that the University could not discriminate against religious speech on the basis of its content. It found religious speech entitled to less protection than other types of expression. Id., at 918.\nThe Court of Appeals for the Eighth Circuit reversed. Chess v. Widmar, 635 F. 2d 1310 (1980). Rejecting the analysis of the District Court, it viewed the University regulation as a content-based discrimination against religious speech, for which it could find no compelling justification. Id., at 1315-1320. The court held that the Establishment Clause does not bar a policy of equal access, in which facilities are open to groups and speakers of all kinds. Id., at 1317. According to the Court of Appeals, the “primary effect” of such a policy would not be to advancé religion, but rather to further the neutral purpose of developing students’ “ ‘social and cultural awareness as well as [their] intellectual curiosity.’” Ibid, (quoting from the University bulletin’s description of the student activities program, reprinted in id., at 1312, n. 1).\nWe granted certiorari. 450 U. S. 909. We now affirm.\nII\nThrough its policy of accommodating their meetings, the University has created a forum generally open for use by student groups. Having done so, the University has assumed an obligation to justify its discriminations and exclusions under applicable constitutional norms.5 The Constitution *268forbids a State to enforce certain exclusions from a forum generally open to the public, even if it was not required to create the forum in the first place. See, e. g., Madison Joint School District v. Wisconsin Employment Relations Comm’n, 429 U. S. 167, 175, and n. 8 (1976) (although a State may conduct business in private session, “[w]here the State has opened a forum for direct citizen involvement,” exclusions bear a heavy burden of justification); Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546, 555-559 (1975) (because municipal theater was a public forum, city could not exclude a production without satisfying constitutional safeguards applicable to prior restraints).\nThe University’s institutional mission, which it describes as providing a “secular education” to its students, Brief for Petitioners 44, does not exempt its actions from constitutional scrutiny. With respect to persons entitled to be there, our cases leave no doubt that the First Amendment *269rights of speech and association extend to the campuses of state universities. See, e. g., Healy v. James, 408 U. S. 169, 180 (1972); Tinker v. Des Moines Independent School District, 393 U. S. 503, 506 (1969); Shelton v. Tucker, 364 U. S. 479, 487 (1960).\nHere UMKC has discriminated against student groups and speakers based on their desire to use a generally open forum to engage in religious worship and discussion. These are forms of speech and association protected by the First Amendment. See, e. g., Heffron v. International Society for Krishna Consciousness, Inc., 452 U. S. 640 (1981); Niemotko v. Maryland, 340 U. S. 268 (1951); Saia v. New York, 334 U. S. 558 (1948).6 In order to justify discrimina*270tory exclusion from a public forum based on the religious content of a group’s intended speech, the University must therefore satisfy the standard of review appropriate to content-based exclusions. It must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. See Carey v. Brown, 447 U. S. 455, 461, 464-465 (1980).7\nHH HH\nIn this case the University claims a compelling interest m maintaining strict separation of church and State. It derives this interest from the “Establishment Clauses” of both the Federal and Missouri Constitutions.\nA\nThe University first argues that it cannot offer its facilities to religious groups and speakers on the terms available to *271other groups without violating the Establishment Clause of the Constitution of the United States.8 We agree that the interest of the University in complying with its constitutional obligations may be characterized as compelling. It does not follow, however, that an “equal access” policy would be incompatible with this Court’s Establishment Clause cases. Those cases hold that a policy will not offend the Establishment Clause if it can pass a three-pronged test: “First, the [governmental policy] must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion. . .; finally, the [policy] must not foster ‘an excessive government entanglement with religion.’” Lemon v. Kurtzman, 403 U. S. 602, 612-613 (1971). See Committee for Public Education v. Regan, 444 U. S. 646, 653 (1980); Roemer v. Maryland Public Works Bd., 426 U. S. 736, 748 (1976).\nIn this case two prongs of the test are clearly met. Both the District Court and the Court of Appeals held that an open-forum policy, including nondiscrimination against religious speech,9 would have a secular purpose10 and would *272avoid entanglement with religion.11 But the District Court concluded, and the University argues here, that allowing religious groups to share the limited public forum would have the “primary effect” of advancing religion.12\n*273The University’s argument misconceives the nature of this case. The question is not whether the creation of a religious forum would violate the Establishment Clause. The University has opened its facilities for use by student groups, and the question is whether it can now exclude groups because of the content of their speech. See Healy v. James, 408 U. S. 169 (1972).13 In this context we are unpersuaded that the primary effect of the public forum, open to all forms of discourse, would be to advance religion.\nWe are not oblivious to the range of an open forum’s likely effects. It is possible — perhaps even foreseeable — that religious groups will benefit from access to University facilities. But this Court has explained that a religious organization’s enjoyment of merely “incidental” benefits does not violate the prohibition against the “primary advancement” of religion. Committee for Public Education v. Nyquist, 413 U. S. 756, *274771 (1973); see, e. g., Roemer v. Maryland Public Works Bd., 426 U. S. 736 (1976); Hunt v. McNair, 413 U. S. 734 (1973); McGowan v. Maryland, 366 U. S. 420, 422 (1961).\nWe are satisfied that any religious benefits of an open forum at UMKC would be “incidental” within the meaning of our cases. Two factors are especially relevant.\nFirst, an open forum in a public university does not confer any imprimatur of state approval on religious sects or practices. As the Court of Appeals quite aptly stated, such a policy “would no more commit the University ... to religious goals” than it is “now committed to the goals of the Students for a Democratic Society, the Young Socialist Alliance,” or any other group eligible to use its facilities. 635 F. 2d, at 1317.14\nSecond, the forum is available to a broad class of nonreligious as well as religious speakers; there are over 100 recognized student groups at UMKC. The provision of benefits to so broad a spectrum of groups is an important index of secular effect. See, e. g., Wolman v. Walter, 433 U. S. 229, 240-241 (1977); Committee for Public Education v. Nyquist, supra, at 781-782, and n. 38. If the Establishment Clause barred the extension of general benefits to religious groups, “a church could not be protected by the police and fire depart*275ments, or have its public sidewalk kept in repair.” Roemer v. Maryland Public Works Bd., supra, at 747 (plurality opinion); quoted in Committee for Public Education v. Regan, 444 U. S., at 658, n. 6.15 At least in the absence of empirical evidence that religious groups will dominate UMKC’s open forum, we agree with the Court of Appeals that the advancement of religion would not be the forum’s “primary effect.”\nB\nArguing that the State of Missouri has gone further than the Federal Constitution in proscribing indirect state support for religion,16 the University claims a compelling interest in complying with the applicable provisions of the Missouri Constitution.17\nThe Missouri courts have not ruled whether a general policy of accommodating student groups, applied equally to those wishing to gather to engage in religious and nonreligious speech, would offend the State Constitution. We need not, however, determine how the Missouri courts would decide this issue. It is also unnecessary for us to decide whether, under the Supremacy Clause,18 a state interest, derived from its own constitution, could ever outweigh free *276speech interests protected by the First Amendment. We limit our holding to the case before us.\nOn one hand, respondents’ First Amendment rights are entitled to special constitutional solicitude. Our cases have required the most exacting scrutiny in cases in which a State undertakes to regulate speech on the basis of its content. See, e. g., Carey v. Brown, 447 U. S. 455 (1980); Police Dept. of Chicago v. Mosley, 408 U. S. 92 (1972). On the other hand, the state interest asserted here — in achieving greater separation of church and State than is already ensured under the Establishment Clause of the Federal Constitution — is limited by the Free Exercise Clause and in this case by the Free Speech Clause as well. In this constitutional context, we are unable to recognize the State’s interest as sufficiently “compelling” to justify content-based discrimination against respondents’ religious speech.\nIV\nOur holding in this case in no way undermines the capacity of the University to establish reasonable time, place, and manner regulations.19 Nor do we question the right of the University to make academic judgments as to how best to allocate scarce resources or “to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.” Sweezy v. New Hampshire, 354 U. S. 234, 263 (1957) (Frankfurter, J., concurring in result); see University of California Regents v. Bakke, 438 U. S. 265, 312-313 (1978) (opinion of Powell, J., announcing the judgment of the Court).20 Fi*277nally, we affirm the continuing validity of cases, e. g., Healy v. James, 408 U. S., at 188-189, that recognize a university’s right to exclude even First Amendment activities that violate reasonable campus rules or substantially interfere with the opportunity of other students to obtain an education.\nThe basis for our decision is narrow. Having created a forum generally open to student groups, the University seeks to enforce a content-based exclusion of religious speech. Its exclusionary policy violates the fundamental principle that a state regulation of speech should be content-neutral, and the University is unable to justify this violation under applicable constitutional standards.\nFor this reason, the decision of the Court of Appeals is\n\nAffirmed.\n\n\n The University of Missouri at Kansas City (UMKC) is one of four campuses of the University of Missouri, an institution of the State of Missouri.\n\n\n Cornerstone is an organization of evangelical Christian students from various denominational backgrounds. According to an affidavit filed in 1977, “perhaps twenty students . . . participate actively in Cornerstone and form the backbone of the campus organization.” Affidavit of Florian Chess (Sept. 29, 1977), quoted in Chess v. Widmar, 480 F. Supp. 907, 911 (WD Mo. 1979). Cornerstone held its on-campus meetings in classrooms and in the student center. These meetings were open to the public and attracted up to 125 students. A typical Cornerstone meeting included prayer, hymns, Bible commentary, and discussion of religious views and experiences.\n\n\n The pertinent regulations provide as follows:\n“4.0314.0107 No University buildings or grounds (except chapels as herein provided) may be used for purposes of religious worship or religious teaching by either student or nonstudent groups. . . . The general prohibition against use of University buildings and grounds for religious worship *266or religious teaching is a policy required, in the opinion of The Board of Curators, by the Constitution and laws of the State and is not open to any other construction. No regulations shall be interpreted to forbid the offering of prayer or other appropriate recognition of religion at public functions held in University facilities. . . .\n“4.0314.0108 Regular chapels established on University grounds may be used for religious services but not for regular recurring services of any groups. Special rules and procedures shall be established for each such chapel by the Chancellor. It is specifically directed that no advantage shall be given to any religious group.”\nThere is no chapel on the campus of UMKC. The nearest University chapel is at the Columbia campus, approximately 125 miles east of UMKC.\nAlthough the University had routinely approved Cornerstone meetings before 1977, the District Court found that University officials had never “authorized a student organization to utilize a University facility for a meeting where they had full knowledge that the purposes of the meeting include[d] religious worship or religious teaching.\" Chess v. Widmar, supra, at 910.\n\n\n Respondent Clark Vincent and Florian Chess, a named plaintiff in the action in the District Court, were among the students who initiated the action on October 13, 1977. Named as defendants were the petitioner Gary Widmar, the Dean of Students at UMKC, and the University’s Board of Curators.\n\n\n This Court has recognized that the campus of a public university, at least for its students, possesses many of the characteristics of a public forum. See generally Police Dept. of Chicago v. Mosley, 408 U. S. 92 (1972); Cox v. Louisiana, 379 U. S. 636 (1965). “The college classroom with its surrounding environs is peculiarly ‘the marketplace of ideas.’” Healy v. James, 408 U. S. 169, 180 (1972). Moreover, the capacity of a *268group or individual “to participate in the intellectual give and take of campus debate . . . [would be] limited by denial of access to the customary media for communicating with the administration, faculty members, and other students.” Id., at 181-182. We therefore have held that students enjoy First Amendment rights of speech and association on the campus, and that the “denial [to particular groups] of use of campus facilities for meetings and other appropriate purposes” must be subjected to the level of scrutiny appropriate to any form of prior restraint. Id., at 181, 184.\nAt the same time, however, our cases have recognized that First Amendment rights must be analyzed “in light of the special characteristics of the school environment.” Tinker v. Des Moines Independent School District, 393 U. S. 503, 506 (1969). We continue to adhere to that view. A university differs in significant respects from public forums such as streets or parks or even municipal theaters. A university’s mission is education, and decisions of this Court have never denied a university’s authority to impose reasonable regulations compatible with that mission upon the use of its campus and facilities. We have not held, for example, that a campus must make all of its facilities equally available to students and non-students alike, or that a university must grant free access to all of its grounds or buildings.\n\n\n The dissent argues that “religious worship” is not speech generally protected by the “free speech” guarantee of the First Amendment and the “equal protection” guarantee of the Fourteenth Amendment. If “religious worship” were protected “speech,” the dissent reasons, “the Religion Clauses would be emptied of any independent meaning in circumstances in which religious practice took the form of speech.” Post, at 284. This is a novel argument. The dissent does not deny that speech about religion is speech entitled to the general protections of the First Amendment. See post, at 283-284, and n. 2, 286. It does not argue that descriptions of religious experiences fail to qualify as “speech.” Nor does it repudiate last Term’s decision in Heffron v. International Society for Krishna Consciousness, Inc., which assumed that religious appeals to nonbelievers constituted protected “speech.” Rather, the dissent seems to attempt a distinction between the kinds of religious speech explicitly protected by our cases and a new class of religious “speech act[s],” post, at 285, constituting “worship.” There are at least three difficulties with this distinction.\nFirst, the dissent fails to establish that the distinction has intelligible content. There is no indication when “singing hymns, reading scripture, and teaching biblical principles,” post, at 283, cease to be “singing, teaching, and reading” — all apparently forms of “speech,” despite their religious subject matter — and become unprotected “worship.”\nSecond, even if the distinction drew an arguably principled line, it is highly doubtful that it would lie within the judicial competence to administer. Cf. Fowler v. Rhode Island, 345 U. S. 67, 70 (1953). Merely to draw the distinction would require the university — and ultimately the courts — to *270inquire into the significance of words and practices to different religious faiths, and in varying circumstances by the same faith. Such inquiries would tend inevitably to entangle the State with religion in a manner forbidden by our cases. E. g., Walz v. Tax Comm’n, 397 U. S. 664, 668 (1970).\nFinally, the dissent fails to establish the relevance of the distinction on which it seeks to rely, The dissent apparently wishes to preserve the vitality of the Establishment Clause. See post, at 284-286. But it gives no reason why the Establishment Clause, or any other provision of the Constitution, would require different treatment for religious speech designed to win religious converts, see Heffron, supra, than for religious worship by persons already converted. It is far from clear that the State gives greater support in the latter case than in the former.\n\n\n See also Healy v. James, supra, at 184:\n“It is to be remembered that the effect of the College’s denial of recognition was a form of prior restraint, denying to petitioners’ organization the range of associational activities described above. While a college has a legitimate interest in preventing disruption on the campus, which . . . may justify such restraint, a ‘heavy burden’ rests on the college to demonstrate the appropriateness of that action.”\n\n\n “Congress shall make no law respecting an establishment of religion . . . .” U. S. Const., Arndt. 1. The Establishment Clause has been made applicable to the States through the Fourteenth Amendment. See Cantwell v. Connecticut, 310 U. S. 296, 303 (1940).\n\n\n As the dissent emphasizes, the Establishment Clause requires the State to distinguish between “religious” speech — speech, undertaken or approved by the State, the primary effect of which is to support an establishment of religion — and “nonreligious” speech — speech, undertaken or approved by the State, the primary effect of which is not to support an establishment of religion. This distinction is required by the plain text of the Constitution. It is followed in our cases. E.g., Stone v. Graham, 449 U. S. 39 (1980). The dissent attempts to equate this distinction with its view of an alleged constitutional difference between religious “speech” and religious “worship.” See post, at 285, and n. 3. We think that the distinction advanced by the dissent lacks a foundation in either the Constitution or in our cases, and that it is judicially unmanageable.\n\n\n It is the avowed purpose of UMKC to provide a forum in which students can exchange ideas. The University argues that use of the forum *272for religious speech would undermine this secular aim. But by creating a forum the University does not thereby endorse or promote any of the particular ideas aired there. Undoubtedly many views are advocated in the forum with which the University desires no association.\nBecause this case involves a forum already made generally available to student groups, it differs from those cases in which this Court has invalidated statutes permitting school facilities to be used for instruction by religious groups, but not by others. See, e. g., McCollum v. Board of Education, 383 U. S. 203 (1948). In those cases the school may appear to sponsor the views of the speaker.\n\n\n We agree with the Court of Appeals that the University would risk greater “entanglement” by attempting to enforce its exclusion of “religious worship” and “religious speech.” See Chess v. Widmar, 635 F. 2d 1310, 1318 (CA8 1980). Initially, the University would need to determine which words and activities fall within “religious worship and religious teaching.” This alone could prove “an impossible task in an age where many and various beliefs meet the constitutional definition of religion.” O’Hair v. Andrus, 198 U. S. App. D. C. 198, 203, 613 F. 2d 931, 936 (1979) (footnote omitted); see L. Tribe, American Constitutional Law § 14-6 (1978). There would also be a continuing need to monitor group meetings to ensure compliance with the rule.\n\n\n In finding that an “equal access” policy would have the primary effect of advancing religion, the District Court in this case relied primarily on Tilton v. Richardson, 403 U. S. 672 (1971). In Tilton this Court upheld the grant of federal financial assistance to sectarian colleges for secular purposes, but circumscribed the terms of the grant to ensure its constitutionality. Although Congress had provided that federally subsidized buildings could not be used for sectarian or religious worship for 20 years, the Court considered this restriction insufficient: “If, at the end of 20 years, the building is, for example, converted into a chapel or otherwise used to promote religious interests, the original federal grant will in part have the [constitutionally impermissible] effect of advancing religion.” Id., at 683. From this statement the District Court derived the proposition that state funds may not be used to provide or maintain buildings used by religious organizations.\n*273We do not believe that Tilton can be read so broadly. In Tilton the Court was concerned that a sectarian institution might convert federally funded buildings to religious uses or otherwise stamp them with the imprimatur of religion. But nothing in Tilton suggested a limitation on the State’s capacity to maintain forums equally open to religious and other discussions. Cases before and after Tilton have acknowledged the right of religious speakers to use public forums on equal terms with others. See, e. g., Heffron v. International Society for Krishna Consciousness, Inc., 452 U. S. 640 (1981); Saia v. New York, 334 U. S. 558 (1948).\n\n\n This case is different from cases in which religious groups claim that the denial of facilities not available to other groups deprives them of their rights under the Free Exercise Clause. Here, the University’s forum is already available to other groups, and respondents’ claim to use that forum does not rest solely on rights claimed under the Free Exercise Clause. Respondents’ claim also implicates First Amendment rights of speech and association, and it is on the bases of speech and association rights that we decide the case. Accordingly, we need not inquire into the extent, if any, to which free exercise interests are infringed by the challenged University regulation. Neither do we reach the questions that would arise if state accommodation of free exercise and free speech rights should, in a particular case, conflict with the prohibitions of the Establishment Clause.\n\n\n University students are, of course, young adults. They are less impressionable than younger students and should be able to appreciate that the University’s policy is one of neutrality toward religion. See Tilton v. Richardson, supra, at 685-686. The University argues that the Cornerstone students themselves admitted in affidavits that “[s]tudents know that if something is on campus, then it is a student organization, and they are more likely to feel comfortable attending a meeting.” Affidavit of Florian Frederick Chess, App. 18, 19. In light of the large number of groups meeting on campus, however, we doubt students could draw any reasonable inference of University support from the mere fact of a campus meeting place. The University’s student handbook already notes that the University’s name will not “be identified in any way with the aims, policies, programs, products, or opinions of any organization or its members.” 1980-1981 UMKC Student Handbook 25.\n\n\n This Court has similarly rejected “the recurrent argument that all aid [to parochial schools] is forbidden because aid to one aspect of an institution frees it to spend its other resources on religious ends.” Hunt v. McNair, 413 U. S. 734, 743 (1973).\n\n\n See, e. g., Americans United v. Rogers, 538 S. W. 2d 711, 720 (Mo.) (en banc) (holding Missouri Constitution requires stricter separation of church and State than does Federal Constitution), cert. denied, 429 U. S. 1029 (1976); Harfst v. Hoegen, 349 Mo. 808, 815-816, 163 S. W. 2d 609, 613-614 (Mo. 1942) (en banc) (same).\n\n\n See Mo. Const., Art. 1, §§ 6, 7; Art. 9, § 8. In Luetkemeyer v. Kaufmann, 364 F. Supp. 376 (WD Mo. 1973), aff'd, 419 U. S. 888 (1974), the District Court found Missouri had a compelling interest in compliance with its own Constitution.\n\n\n U. S. Const., Art. VI, cl. 2.\n\n\n See, e. g., Grayned v. City of Rockford, 408 U. S. 104, 116 (1972) (“The nature of a place, ‘the pattern of its normal activities, dictate the kinds of regulations of time, place, and manner that are reasonable,’” quoting Wright, The Constitution on the Campus, 22 Vand. L. Rev. 1027, 1042 (1969)).\n\n\n In his opinion concurring in the judgment, post, at 277-287, Justice Stevens expresses concern that use of the terms “compelling state *277interest” and “public forum” may “undermine the academic freedom of public universities.” As the text above makes clear, this concern is unjustified. See also n. 5, supra. Our holding is limited to the context of a public forum created by the University itself.\n\n",
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"opinion_text": "\nJustice Stevens,\nconcurring in the judgment.\nAs the Court recognizes, every university must “make academic judgments as to how best to allocate scarce resources,” ante, at 276. The Court appears to hold, however, that those judgments must “serve a compelling state interest” whenever they are based, even in part, on the content of speech. Ante, at 269-270. This conclusion apparently flows from the Court’s suggestion that a student activities program — from which the public may be excluded, ante, at 267-268, n. 5 — must be managed as though it were a “public forum.”1 In my opinion, the use of the terms “compelling *278state interest” and “public forum” to analyze the question presented in this case may needlessly undermine the academic freedom of public universities.\nToday most major colleges and universities are operated by public authority. Nevertheless, their facilities are not open to the public in the same way that streets and parks are. University facilities — private or public — are maintained primarily for the benefit of the student body and the faculty. In performing their learning and teaching missions, the managers of a university routinely make countless decisions based on the content of communicative materials. They select books for inclusion in the library, they hire professors on the basis of their academic philosophies, they select courses for inclusion in the curriculum, and they reward scholars for what they have written. In addition, in encouraging students to participate in extracurricular activities, they necessarily make decisions concerning the content of those activities.\nBecause every university’s resources are limited, an educational institution must routinely make decisions concerning the use of the time and space that is available for extracurricular activities. In my judgment, it is both necessary and appropriate for those decisions to evaluate the content of a proposed student activity. I should think it obvious, for example, that if two groups of 25 students requested the use of a room at a particular time — one to view Mickey Mouse cartoons and the other to rehearse an amateur performance of Hamlet — the First Amendment would not require that the room be reserved for the group that submitted its application first. Nor do I see why a university should have to establish a “compelling state interest” to defend its decision to permit one group to use the facility and not the other. In my opinion, a university should be allowed to decide for itself whether a program that illuminates the genius of Walt Disney should be given precedence over one that may duplicate material adequately covered in the classroom. Judgments of *279this kind should be made by academicians, not by federal judges,2 and their standards for decision should not be encumbered with ambiguous phrases like “compelling state interest.”3\n*280Thus, I do not subscribe to the view that a public university has no greater interest in the content of student activities than the police chief has in the content of a soapbox oration on Capitol Hill. A university legitimately may regard some subjects as more relevant to its educational mission than others. But the university, like the police officer, may not allow its agreement or disagreement with the viewpoint of a particular speaker to determine whether access to a forum will be granted. If a state university is to deny recognition to a student organization — or is to give it a lesser right to use school facilities than other student groups — it must have a valid reason for doing so. Healy v. James, 408 U. S. 169.4\nIn this case I agree with the Court that the University has not established a sufficient justification for its refusal to allow the Cornerstone group to engage in religious worship on the campus. The primary reason advanced for the discriminatory treatment is the University’s fear of violating the Establishment Clause. But since the record discloses no danger *281that the University will appear to sponsor any particular religion, and since student participation in the Cornerstone meetings is entirely voluntary, the Court properly concludes that the University’s fear is groundless. With that justification put to one side, the University has not met, the burden that is imposed on it by Healy.\nNor does the University’s reliance on the Establishment Clause of the Missouri State Constitution provide a sufficient justification for the discriminatory treatment in this case.5 As I have said, I believe that the University may exercise a measure of control over the agenda for student use of school facilities, preferring some subjects over others, without needing to identify so-called “compelling state interests.” Quite obviously, however, the University could not allow a group of Republicans or Presbyterians to meet while denying Democrats or Mormons the same privilege.6 It seems apparent that the policy under attack would allow groups of young philosophers to meet to discuss their skepticism that a Supreme Being exists, or a group of political scientists to meet to debate the accuracy of the view that religion is the “opium of the people.” If school facilities may be used to discuss anticlerical doctrine, it seems to me that comparable use by a group desiring to express a belief in God must also be permitted. The fact that their expression of faith includes ceremonial conduct is not, in my opinion, a sufficient reason for suppressing their discussion entirely.\nAccordingly, although I do not endorse the Court’s reasoning, I concur in its judgment.\n\n As stated by the Court, “[i]n order to justify discriminatory exclusion from a public forum based on the religious content of a group’s intended speech, the University must therefore satisfy the standard of review appropriate to content-based exclusions.” Ante, at 269-270. See also ante, this page, n. 20 (“Our holding is limited to the context of a public forum created by the University itself’).\n\n\n In Sweezy v. New Hampshire, 354 U. S. 234, Justice Frankfurter forcefully spoke of “the grave harm resulting from governmental intrusion into the intellectual life of a university . . . Id,., at 261 (concurring in result). Justice Frankfurter quoted with approval portions of an address by T. H. Huxley:\n“Tt is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail “the four essential freedoms” of a university — to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.’” Id., at 263.\nAlthough these comments were not directed at a public university’s concern with extracurricular activities, it is clear that the “atmosphere” of a university includes such a critical aspect of campus life. See also University of California Regents v. Bakke, 438 U. S. 265, 312 (opinion of Powell, J.) (“Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment”); Note, Academic Freedom and Federal Regulation of University Hiring, 92 Harv. L. Rev. 879 (1979). Cf. Van Alstyne, The Specific Theory of Academic Freedom and the General Issue of Civil Liberty, reprinted in The Concept of Academic Freedom 59, 77-81 (E. Pincoffs ed. 1972).\n\n\n In Illinois Elections Bd. v. Socialist Workers Party, 440 U. S. 173, Justice Blackmun expressed concern with\n“what seems to be a continuing tendency in this Court to use as tests such easy phrases as ‘compelling [state] interest’ and ‘least drastic [or restrictive] means.’ I have never been able fully to appreciate just what a ‘compelling state interest’ is. If it means ‘convincingly controlling,’ or ‘incapable of being overcome’ upon any balancing process, then, of course, the test merely announces an inevitable result, and the test is no test at all. And, for me, ‘least drastic means’ is a slippery slope and also the signal of the result the Court has chosen to reach. A judge would be unimaginative indeed if he could not come up with something a little less ‘drastic’ or a little less ‘restrictive’ in almost any situation, and thereby enable himself to vote to strike legislation down.” Id., at 188-189 (concurring opinion) (citation omitted).\n\n\n In Healy, the Court stated:\n“The opinions below also assumed that petitioners had the burden of showing entitlement to recognition by the College. While petitioners have not challenged the procedural requirement that they file an application in conformity with the rules of the College, they do question the view of the courts below that final rejection could rest on their failure to convince the administration that their organization was unaffiliated with the National [Students for a Democratic Society]. For reasons to be stated later in this opinion, we do not consider the issue of affiliation to be a controlling one. But, apart from any particular issue, once petitioners had filed an application in conformity with the requirements, the burden was upon the College administration to justify its decision of rejection. It is to be remembered that the effect of the College’s denial of recognition was a form of prior restraint, denying to petitioners’ organization the range of associational activities described above. While a college has a legitimate interest in preventing disruption on the campus, which under circumstances requiring the safeguarding of that interest may justify such restraint, a ‘heavy burden’ rests on the college to demonstrate the appropriateness of that action.” 408 U. S., at 183-184 (footnotes and citations omitted).\n\n\n The University’s asserted determination to keep Church and State completely separate, pursuant to the alleged dictates of the Missouri Constitution, is not without qualification. The very regulations at issue provide that “[n]o regulations shall be interpreted to forbid the offering of prayer or other appropriate recognition of religion at public functions held in University facilities. . . .” See ante, at 266, n. 3.\n\n\n See Farber, Content Regulation and the First Amendment: A Revisionist View, 68 Geo. L. J. 727 (1980).\n\n",
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"opinion_text": "\n*282Justice White,\ndissenting.\nIn affirming the decision of the Court of Appeals, the majority rejects petitioners’ argument that the Establishment Clause of the Constitution prohibits the use of university buildings for religious purposes. A state university may permit its property to be used for purely religious services without violating the First and Fourteenth Amendments. With this I agree. See Committee for Public Education v. Nyquist, 413 U. S. 756, 813 (1973) (WHITE, J., dissenting); Lemon v. Kurtzman, 403 U. S. 602, 661 (1971) (opinion of White, J.). The Establishment Clause, however, sets limits only on what the State may do with respect to religious organizations; it does not establish what the State is required to do. I have long argued that Establishment Clause limits on state action which incidentally aids religion are not as strict as the Court has held. The step from the permissible to the necessary, however, is a long one. In my view, just as there is room under the Religion Clauses for state policies that may have some beneficial effect on religion, there is also room for state policies that may incidentally burden religion. In other words, I believe the States to be a good deal freer to formulate policies that affect religion in divergent ways than does the majority. See Sherbert v. Verner, 374 U. S. 398, 422-423 (1963) (Harlan, J., dissenting). The majority’s position will inevitably lead to those contradictions and tensions between the Establishment and Free Exercise Clauses warned against by Justice Stewart in Sherbert v. Verner, supra, at 416.\nThe University regulation at issue here provides in pertinent part:\n“No University buildings or grounds (except chapels as herein provided) may be used for purposes of religious worship or religious teaching by either student or non-student groups. Student congregations of local *283churches or of recognized denominations or sects, although not technically recognized campus groups, may use the facilities . . . under the same regulations that apply to recognized campus organizations, provided that no University facilities may be used for purposes of religious worship or religious teaching.”\nAlthough there may be instances in which it would be difficult to determine whether a religious group used university facilities for “worship” or “religious teaching,” rather than for secular ends, this is not such a case. The regulation was applied to respondents’ religious group, Cornerstone, only after the group explicitly informed the University that it sought access to the facilities for the purpose of offering prayer, singing hymns, reading scripture, and teaching biblical principles. Cornerstone described their meetings as follows: “Although these meetings would not appear to a casual observer to correspond precisely to a traditional worship service, there is no doubt that worship is an important part of the general atmosphere.” Chess v. Widmar, 480 F. Supp. 907, 910 (1979).1 The issue here is only whether the University *284regulation as applied and interpreted in this case is impermissible under the Federal Constitution. If it is impermissible, it is because it runs afoul of either the Free Speech or the Free Exercise Clause of the First Amendment.\nA large part of respondents’ argument, accepted by the court below and accepted by the majority, is founded on the proposition that because religious worship uses speech, it is protected by the Free Speech Clause of the First Amendment.2 Not only is it protected, they argue, but religious worship qua speech is not different from any other variety of protected speech as a matter of constitutional principle. I believe that this proposition is plainly wrong. Were it right, the Religion Clauses would be emptied of any independent meaning in circumstances in which religious practice took the form of speech.\nAlthough the majority describes this argument as “novel,” ante, at 269, n. 6, I believe it to be clearly supported by our previous cases. Just last Term, the Court found it suffi*285ciently obvious that the Establishment Clause prohibited a State from posting a copy of the Ten Commandments on the classroom wall that a statute requiring such a posting was summarily struck down. Stone v. Graham, 449 U. S. 39 (1980). That case necessarily presumed that the State could not ignore the religious content of the written message, nor was it permitted to treat that content as it would, or must, treat other — secular—messages under the First Amendment’s protection of speech. Similarly, the Court’s decisions prohibiting prayer in the public schools rest on a content-based distinction between varieties of speech: as a speech act, apart from its content, a prayer is indistinguishable from a biology lesson. See Abington School District v. Schempp, 374 U. S. 203 (1963); Engel v. Vitale, 370 U. S. 421 (1962). Operation of the Free Exercise Clause is equally dependent, in certain circumstances, on recognition of a content-based distinction between religious and secular speech. Thus, in Torcaso v. Watkins, 367 U. S. 488 (1961), the Court struck down, as violative of the Free Exercise Clause, a state requirement that made a declaration of belief in God a condition of state employment. A declaration is again a speech act, but it was the content of the speech that brought the case within the scope of the Free Exercise Clause.\nIf the majority were right that no distinction may be drawn between verbal acts of worship and other verbal acts, all of these cases would have to be reconsidered. Although I agree that the line may be difficult to draw in many cases, surely the majority cannot seriously suggest that no line may ever be drawn.3 If that were the case, the majority would *286have to uphold the University’s right to offer a class entitled “Sunday Mass.” Under the majority’s view, such a class would be — as a matter of constitutional principle — indistinguishable from a class entitled “The History of the Catholic Church.”4\nThere may be instances in which a State’s attempt to disentangle itself from religious worship would intrude upon secular speech about religion. In such a case, the State’s action would be subject to challenge under the Free Speech Clause of the First Amendment. This is not such a case. This case involves religious worship only; the fact that that worship is accomplished through speech does not add anything to respondents’ argument. That argument must rely upon the claim that the State’s action impermissibly interferes with the free exercise of respondents’ religious practices. Although this is a close question, I conclude that it does not.\nPlausible analogies on either side suggest themselves. Respondents argue, and the majority agrees, that by permitting any student group to use its facilities for communicative purposes other than religious worship, the University has created a “public forum.” Ante, at 267-268. With ample *287support, they argue that the State may not make content-based distinctions as to what groups may use, or what messages may be conveyed in, such a forum. See Police Department of Chicago v. Mosley, 408 U. S. 92 (1972); Cox v. Louisiana, 379 U. S. 536 (1965). The right of the religious to nondiscriminatory access to the public forum is well established. See Niemotko v. Maryland, 340 U. S. 268 (1951); Murdock v. Pennsylvania, 319 U. S. 105 (1943). Moreover, it is clear that there are bounds beyond which the University could not go in enforcing its regulation: I do not suppose it could prevent students from saying grace before meals in the school cafeteria, or prevent distribution of religious literature on campus.6\nPetitioners, on the other hand, argue that allowing use of their facilities for religious worship is constitutionally indistinguishable from directly subsidizing such religious services: It would “fun[d] a specifically religious activity in an otherwise substantially secular setting.” Hunt v. McNair, 413 U. S. 734, 743 (1973). They argue that the fact that secular student groups are entitled to the in-kind subsidy at issue here does not establish that a religious group is entitled to the same subsidy. They could convincingly argue, for example, that a state university that pays for basketballs for the basketball team is not thereby required to pay for Bibles for a group like Cornerstone.6\n*288A third analogy suggests itself, one that falls between these two extremes. There are a variety of state policies which incidentally benefit religion that this Court has upheld without implying that they were constitutionally required of the State. See Board of Education v. Allen, 392 U. S. 236 (1968) (state loan of textbooks to parochial school students); Zorach v. Clauson, 343 U. S. 306 (1952) (release of students from public schools, during school hours, to perform religious activities away from the school grounds); Everson v. Board of Education, 330 U. S. 1 (1947) (state provision of transportation to parochial school students). Provision of university facilities on a uniform basis to all student groups is not very different from provision of textbooks or transportation. From this perspective the issue is not whether the State must, or must not, open its facilities to religious worship; rather, it is whether the State may choose not to do so.\nEach of these analogies is persuasive. Because they lead to different results, however, they are of limited help in reaching a decision here. They also demonstrate the difficulty in reconciling the various interests expressed in the Religion Clauses. In my view, therefore, resolution of this case is best achieved by returning to first principles. This requires an assessment of the burden on respondents’ ability freely to exercise their religious beliefs and practices and of the State’s interest in enforcing its regulation.\nRespondents complain that compliance with the regulation would require them to meet “about a block and a half” from campus under conditions less comfortable than those previously available on campus.7 I view this burden on free exer*289cise as minimal. Because the burden is minimal, the State need do no more than demonstrate that the regulation furthers some permissible state end. The State’s interest in avoiding claims that it is financing or otherwise supporting religious worship — in maintaining a definitive separation between church and State — is such an end. That the State truly does mean to act toward this end is amply supported by the treatment of religion in the State Constitution.8 Thus, I believe the interest of the State is sufficiently strong to justify the imposition of the minimal burden on respondents’ ability freely to exercise their religious beliefs.\nOn these facts, therefore, I cannot find that the application of the regulation to prevent Cornerstone from holding religious worship services in University facilities violates the First and Fourteenth Amendments. I would not hold as the majority does that if a university permits students and others to use its property for secular purposes, it must also furnish facilities to religious groups for the purposes of worship and the practice of their religion. Accordingly, I would reverse the judgment of the Court of Appeals.\n\n Cornerstone was denied access to University facilities because it intended to use those facilities for regular religious services in which “worship is an important part of the general atmosphere.” There is no issue here as to the application of the regulation to “religious teaching.” Reaching this issue is particularly inappropriate in this case because nothing in the record indicates how the University has interpreted the phrase “religious teaching” or even whether it has ever been applied to activity that was not clearly “religious worship.” The District Court noted that plaintiffs did not contend that they were “limited, in any way, from holding on-campus meetings that do not include religious worship services.” 480 F. Supp., at 913. At oral argument, counsel for the University indicated that the regulation would not bar discussion of biblical texts under circumstances that did not constitute “religious worship.” Tr. of Oral Arg. 9. The sole question in this case involves application of the regulation to prohibit regular religious worship services in University buildings.\n\n\n Given that the majority’s entire argument turns on this description of religious services as speech, it is surprising that the majority assumes this proposition to require no argument. The majority assumes the conclusion by describing the University’s action as discriminating against “speakers based on their desire to . . . engage in religious worship and discussion.” Ante, at 269. As noted above, it is not at all clear that the University has discriminated or intends to discriminate against “religious discussion” — as a preliminary matter, it is not even clear what the majority means by “religious discussion” or how it entered the case. That religious worship is a form of speech, the majority takes to have been established by three cases. Heffron v. International Society for Krishna Consciousness, Inc., 452 U. S. 640 (1981); Niemotko v. Maryland, 340 U. S. 268 (1951); Saia v. New York, 334 U. S. 558 (1948). None of these cases stand for this proposition. Heffron and Saia involved the communication of religious views to a nonreligious, public audience. Talk about religion and about religious beliefs, however, is not the same as religious services of worship. Niemotko was an equal protection challenge to a discriminatory denial of one religious group’s access to a public park. The Court specifically stated that it was not addressing the question of whether the State could uniformly deny all religious groups access to public parks. 340 U. S., at 272.\n\n\n Indeed, while footnote 6 of the majority opinion suggests that no intelligible distinction may be drawn between worship and other forms of speech, footnote 9 recognizes that the Establishment Clause “requires” that such a line be drawn. The majority does not adequately explain why the State is “required” to observe a line in one context, but prohibited from voluntarily recognizing it in another context.\n\n\n Counsel for respondents was somewhat more forthright in recognizing the extraordinary breadth of his argument, than is the majority. Counsel explicitly stated that once the distinction between speech and worship is collapsed a university that generally provides student groups access to its facilities would be constitutionally required to allow its facilities to be used as a church for the purpose of holding “regular church services.” Tr. of Oral Arg. 26. Similarly, although the majority opinion limits its discussion to student groups, counsel for respondents recognized that the First Amendment argument relied upon would apply equally to nonstudent groups. He recognized that respondents’ submission would require the University to make available its buildings to the Catholic Church and other denominations for the purpose of holding religious services, if University facilities were made available to nonstudent groups. Id., at 39. In other words, the University could not avoid the conversion of one of its buildings into a church, as long as the religious group meets the same neutral requirements of entry — e. g., rent — as are imposed on other groups.\n\n\n There are obvious limits on the scope of this analogy. I know of no precedent holding that simply because a public forum is open to all kinds of speech — including speech about religion — it must be open to regular religious worship services as well. I doubt that the State need stand by and allow its public forum to become a church for any religious sect that chooses to stand on its right of access to that forum.\n\n\n There are, of course, limits to this subsidy argument. Sherbert v. Verner, 374 U. S. 398 (1963), and Thomas v. Indiana Employment Security Division, 450 U. S. 707 (1981), demonstrate that in certain circumstances the State may be required to “subsidize,” at least indirectly, religious practices, under circumstances in which it does not and need not subsidize similar behavior founded on secular motives.\n\n\n Respondents also complain that the University action has made their religious message less attractive by suggesting that it is not appropriate fare for the college campus. I give no weight to this because it is indistinguishable from an argument that respondents are entitled to the appearance of an endorsement of their beliefs and practices from the University.\n\n\n Since 1820, the Missouri Constitution has contained provisions requiring a separation of church and State. The Missouri Supreme Court has held that the state constitutional provisions are “not only more explicit but more restrictive than the Establishment Clause of the United States Constitution.” Paster v. Tussey, 512 S. W. 2d 97, 102 (1974).\n\n",
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"opinion_text": "\n454 U.S. 263 (1981)\nWIDMAR ET AL.\nv.\nVINCENT ET AL.\nNo. 80-689.\nSupreme Court of United States.\nArgued October 6, 1981\nDecided December 8, 1981\nCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT\n*264 Ted D. Ayres argued the cause for petitioners. With him on the brief was Jackson A. Wright.\nJames M. Smart, Jr., argued the cause for respondents. With him on the brief was Michael K. Whitehead.[*]\nBriefs of amici curiae urging affirmance were filed by Joel H. Paget for the Association for the Coordination of University Religious Affairs; by Wilkes C. Robinson and Jane E. Nelson for Bible Study; by Edward McGlynn Gaffney, Jr., and Kenneth F. Ripple for the Center for Constitutional Studies et al.; by Barry A. Fisher for the Holy Spirit Association for the Unification of World Christianity; by Nathan Lewin, Daniel D. Chazin, and Dennis Rapps for the National Jewish Commission on Law and Public Affairs; and by Wilfred R. Caron for the United States Catholic Conference.\nBriefs of amici curiae were filed by Earl W. Trent, Jr., for the Baptist Joint Committee on Public Affairs; by J. Robert Brame, John W. Whitehead, and James J. Knicely for the National Association of Evangelicals; and by Donald L. Reidhaar for the Regents of the University of California.\nJUSTICE POWELL delivered the opinion of the court.\nThis case presents the question whether a state university, which makes its facilities generally available for the activities *265 of registered student groups, may close its facilities to a registered student group desiring to use the facilities for religious worship and religious discussion.\n\nI\nIt is the stated policy of the University of Missouri at Kansas City[1] to encourage the activities of student organizations. The University officially recognize over 100 student groups. It routinely provides University facilities for the meetings of registered organizations. Students pay an activity fee of $41 per semester (1978-1979) to help defray the costs to the University.\nFrom 1973 until 1977 a registered religious group named Cornerstone regularly sought and received permission to conduct its meetings in University facilities.[2] In 1977, however, the University informed the group that it could no longer meet in University buildings. The exclusion was based on a regulation, adopted by the Board of Curators in 1972, that prohibits the use of University buildings or grounds \"for purposes of religious worship of religious teaching.\"[3]\n*266 Eleven University students, all members of Cornerstone, brought suit to challenge the regulation in the Federal District Court for the Western District of Missouri.[4] They alleged that the University's discrimination against religious activity and discussion violated their rights to free exercise of religion, equal protection, and freedom of speech under the First and Fourteenth Amendments to the Constitution of the United States.\nUpon cross-motions for summary judgment, the District Court upheld the challenged regulation. Chess v. Widmar, 480 F. Supp. 907 (1979). It found the regulation not only justified, but required, by the Establishment Clause of the Federal Constitution. Id., at 916. Under Tilton v. Richardson, 403 U.S. 672 (1971), the court reasoned, the State *267 could not provide facilities for religious use without giving prohibited support to an institution of religion. 480 F. Supp., at 915-916. The District Court rejected the argument that the University could not discriminate against religious speech on the basis of its content. It found religious speech entitled to less protection than other types of expression. Id., at 918.\nThe Court of Appeals for the Eighth Circuit reversed. Chess v. Widmar, 635 F.2d 1310 (1980). Rejecting the analysis of the District Court, it viewed the University regulation as a content-based discrimination against religious speech, for which it could find no compelling justification. Id., at 1315-1320. The court held that the Establishment Clause does not bar a policy of equal access, in which facilities are open to groups and speakers of all kinds. Id., at 1317. According to the Court of Appeals, the \"primary effect\" of such a policy would not be to advance religion, but rather to further the neutral purpose of developing students' \" `social and cultural awareness as well as [their] intellectual curiosity.' \" Ibid. (quoting from the University bulletin's description of the student activities program, reprinted in id., at 1312, n. 1).\nWe granted certiorari. 450 U.S. 909. We now affirm.\n\nII\nThrough its policy of accommodating their meetings, the University has created a forum generally open for use by student groups. Having done so, the University has assumed an obligation to justify its discriminations and exclusions under applicable constitutional norms.[5] The Constitution *268 forbids a State to enforce certain exclusions from a forum generally open to the public, even if it was not required to create the forum in the first place. See, e. g., Madison Joint School District v. Wisconsin Employment Relations Comm'n, 429 U.S. 167, 175, and n. 8 (1976) (although a State may conduct business in private session, \"[w]here the State has opened a forum for direct citizen involvement,\" exclusions bear a heavy burden of justification); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 555-559 (1975) (because municipal theater was a public forum, city could not exclude a production without satisfying constitutional safeguards applicable to prior restraints).\nThe University's institutional mission, which it describes as providing a \"secular education\" to its students, Brief for Petitioners 44, does not exempt its actions from constitutional scrutiny. With respect to persons entitled to be there, our cases leave no doubt that the First Amendment *269 rights of speech and association extend to the campuses of state universities. See, e. g., Healy v. James, 408 U.S. 169, 180 (1972); Tinker v. Des Moines Independent School District, 393 U.S. 503, 506 (1969); Shelton v. Tucker, 364 U.S. 479, 487 (1960).\nHere UMKC has discriminated against student groups and speakers based on their desire to use a generally open forum to engage in religious worship and discussion. These are forms of speech and association protected by the First Amendment. See, e. g., Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640 (1981); Niemotko v. Maryland, 340 U.S. 268 (1951); Saia v. New York, 334 U.S. 558 (1948).[6] In order to justify discriminatory *270 exclusion from a public forum based on the religious content of a group's intended speech, the University must therefore satisfy the standard of review appropriate to content-based exclusions. It must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. See Carey v. Brown, 447 U.S. 455, 461, 464-465 (1980).[7]\n\nIII\nIn this case the University claims a compelling interest in maintaining strict separation of church and State. It derives this interest from the \"Establishment Clauses\" of both the Federal and Missouri Constitutions.\n\nA\nThe University first argues that it cannot offer its facilities to religious groups and speakers on the terms available to *271 other groups without violating the Establishment Clause of the Constitution of the United States.[8] We agree that the interest of the University in complying with its constitutional obligations may be characterized as compelling. It does not follow, however, that an \"equal access\" policy would be incompatible with this Court's Establishment Clause cases. Those cases hold that a policy will not offend the Establishment Clause if it can pass a three-pronged test: \"First, the [governmental policy] must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion . . .; finally, the [policy] must not foster `an excessive government entanglement with religion.' \" Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971). See Committee for Public Education v. Regan, 444 U.S. 646, 653 (1980); Roemer v. Maryland Public Works Bd., 426 U.S. 736, 748 (1976).\nIn this case two prongs of the test are clearly met. Both the District Court and the Court of Appeals held that an open-forum policy, including nondiscrimination against religious speech,[9] would have a secular purpose[10] and would *272 avoid entanglement with religion.[11] But the District Court concluded, and the University argues here, that allowing religious groups to share the limited public forum would have the \"primary effect\" of advancing religion.[12]\n*273 The University's argument misconceives the nature of this case. The question is not whether the creation of a religious forum would violate the Establishment Clause. The University has opened its facilities for use by student groups, and the question is whether it can now exclude groups because of the content to their speech. See Healy v. James, 408 U.S. 169 (1972).[13] In this context we are unpersuaded that the primary effect of the public forum, open to all forms of discourse, would be to advance religion.\nWe are not oblivious to the range of an open forum's likely effects. It is possible perhaps even foreseeable that religious groups will benefit from access to University facilities. But this Court has explained that a religious organization's enjoyment of merely \"incidental\" benefits does not violate the prohibition against the \"primary advancement\" of religion. Committee for Public Education v. Nyquist, 413 U.S. 756, *274 771 (1973); see, e. g., Roemer v. Maryland Public Works Bd., 426 U.S. 736 (1976); Hunt v. McNair, 413 U.S. 734 (1973); McGowan v. Maryland, 366 U.S. 420, 422 (1961).\nWe are satisfied that any religious benefits of an open forum at UMKC would be \"incidental\" within the meaning of our cases. Two factors are especially relevant.\nFirst, an open forum in a public university does not confer any imprimatur of state approval on religious sects or practices. As the Court of Appeals quite aptly stated, such a policy \"would no more commit the University . . . to religious goals\" than it is \"now committed to the goals of the Students for a Democratic Society, the Young Socialist Alliance,\" or any other group eligible to use its facilities. 635 F.2d, at 1317.[14]\nSecond, the forum is available to a broad class of nonreligious as well as religious speakers; there are over 100 recognized student groups at UMKC. The provision of benefits to so broad a spectrum of groups is an important index of secular effect. See, e. g., Wolman v. Walter, 433 U.S. 229, 240-241 (1977); Committee for Public Education v. Nyquist, supra, at 781-782, and n. 38. If the Establishment Clause barred the extension of general benefits to religious groups, \"a church could not be protected by the police and fire departments. *275 or have its public sidewalk kept in repair.\" Roemer v. Maryland Public Works Bd., supra, at 747 (plurality opinion); quoted in Committee for Public Education v. Regan, 444 U. S., at 658, n. 6.[15] At least in the absence of empirical evidence that religious groups will dominate UMKC's open forum, we agree with the Court of Appeals that the advancement of religion would not be the forum's \"primary effect.\"\n\nB\nArguing that the State of Missouri has gone further than the Federal Constitution in proscribing indirect state support for religion,[16] the University claims a compelling interest in complying with the applicable provisions of the Missouri Constitution.[17]\nThe Missouri courts have not ruled whether a general policy of accommodating student groups, applied equally to those wishing to gather to engage in religious and nonreligious speech, would offend the State Constitution. We need not, however, determine how the Missouri courts would decide this issue. It is also unnecessary for us to decide whether, under the Supremacy Clause,[18] a state interest, derived from its own constitution, could ever outweigh free *276 speech interests protected by the First Amendment. We limit our holding to the case before us.\nOn one hand, respondents' First Amendment rights are entitled to special constitutional solicitude. Our cases have required the most exacting scrutiny in cases in which a State undertakes to regulate speech on the basis of its content. See, e. g., Carey v. Brown, 447 U.S. 455 (1980); Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972). On the other hand, the state interest asserted here in achieving greater separation of church and State than is already ensured under the Establishment Clause of the Federal Constitution is limited by the Free Exercise Clause and in this case by the Free Speech Clause as well. In this constitutional context, we are unable to recognize the State's interest as sufficiently \"compelling\" to justify content-based discrimination against respondents' religious speech.\n\nIV\nOur holding in this case in no way undermines the capacity of the University to establish reasonable time, place, and manner regulations.[19] Nor do we question the right of the University to make academic judgments as to how best to allocate scarce resources or \"to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.\" Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957) (Frankfurter, J., concurring in result); see University of California Regents v. Bakke, 438 U.S. 265, 312-313 (1978) (opinion of POWELL, J., announcing the judgment of the Court).[20] Finally, *277 we affirm the continuing validity of cases, e. g., Healy v. James, 408 U. S., at 188-189, that recognize a university's right to exclude even First Amendment activities that violate reasonable campus rules or substantially interfere with the opportunity of other students to obtain an education.\nThe basis for our decision is narrow. Having created a forum generally open to student groups, the University seeks to enforce a content-based exclusion of religious speech. Its exclusionary policy violates the fundamental principle that a state regulations of speech should be content-neutral, and the University is unable to justify this violation under applicable constitutional standards.\nFor this reason, the decision of the Court of Appeals is\nAffirmed.\nJUSTICE STEVENS, concurring in the judgment.\nAs the Court recognizes, every university must \"make academic judgments as to how best to allocate scarce resources,\" ante, at 276. The Court appears to hold, however, that those judgments must \"serve a compelling state interest\" wherever they are based, even in part, on the content of speech. Ante, at 269-270. This conclusion apparently flows from the Court's suggestion that a student activities program from which the public may be excluded, ante, at 267-268, n. 5 must be managed as though it were a \"public forum.\"[1] In my opinion, the use of the terms \"compelling *278 state interest\" and \"public forum\" to analyze the question presented in this case may needlessly undermine the academic freedom of public universities.\nToday most major colleges and universities are operated by public authority. Nevertheless, their facilities are not open to the public in the same way that streets and parks are. University facilities private or public are maintained primarily for the benefit of the student body and the faculty. In performing their learning and teaching missions, the managers of a university routinely make countless decisions based on the content of communicative materials. They select books for inclusion in the library, they hire professors on the basis of their academic philosophies, they select courses for inclusion in the curriculum, and they reward scholars for what they have written. In addition, in encouraging students to participate in extracurricular activities, they necessarily make decisions concerning the content of those activities.\nBecause every university's resources are limited, an educational institution must routinely make decisions concerning the use of the time and space that is available for extracurricular activities. In my judgment, it is both necessary and appropriate for those decisions to evaluate the content of a proposed student activity. I should think it obvious, for example, that if two groups of 25 students requested the use of a room at a particular time one to view Mickey Mouse cartoons and the other to rehearse an amateur performance of Hamlet the First Amendment would not require that the room he reserved for the group that submitted its application first. Nor do I see why a university should have to establish a \"compelling state interest\" to defend its decision to permit one group to use the facility and not the other. In my opinion, a university should be allowed to decide for itself whether a program that illuminates the genius of Walt Disney should be given precedence over one that may duplicate material adequately covered in the classroom. Judgments of *279 this kind should be made by academicians, not by federal judges,[2] and their standards for decision should not be encumbered with ambiguous phrases like \"compelling state interest.\"[3]\n*280 Thus, I do not subscribe to the view that a public university has no greater interest in the content of student activities than the police chief has in the content of a soapbox oration on Capitol Hill. A university legitimately may regard some subjects as more relevant to its educational mission than others. But the university, like the police officer, may not allow its agreement or disagreement with the viewpoint of a particular speaker to determine whether access to a forum will be granted. If a state university is to deny recognition to a student organization or is to give it a lesser right to use school facilities than other student it must have a valid reason for doing so. Healy v. James, 408 U.S. 169.[4]\nIn this case I agree with the Court that the University has not established a sufficient justification for its refusal to allow the Cornerstone group to engage in religious worship on the campus. The primary reason advanced for the discriminatory treatment is the University's fear of violating the Establishment Clause. But since the record discloses no danger *281 that the University will appear to sponsor any particular religion, and since student participation in the Cornerstone meetings is entirely voluntary, the Court properly concludes that the University's fear is groundless. With that justification put to one side, the University has not met the burden that is imposed on it by Healy.\nNor does the University's reliance on the Establishment Clause of the Missouri State Constitution provide a sufficient justification for the discriminatory treatment in this case.[5] As I have said, I believe that the University may exercise a measure of control over the agenda for student use of school facilities, preferring some subjects over others, without needing to identify so-called \"compelling state interests.\" Quite obviously, however, the University could not allow a group of Republicans or Presbyterians to meet while denying Democrats or Mormons the same privilege.[6] It seems apparent that the policy under attack would allow groups of young philosophers to meet to discuss their skepticism that a Supreme Being exists, or a group of political scientists to meet to debate the accuracy of the view that religion is the \"opium of the people.\" If school facilities may be used to discuss anticlerical doctrine, it seems to me that comparable use by a group desiring to express a belief in God must also be permitted. The fact that their expression of faith includes ceremonial conduct is not, in my opinion, a sufficient reason for suppressing their discussion entirely.\nAccordingly, although I do not endorse the Court's reasoning, I concur in its judgment.\n*282 JUSTICE WHITE, dissenting.\nIn affirming the decision of the Court of Appeals, the majority rejects petitioners' argument that the Establishment Clause of the Constitution prohibits the use of university buildings for religious purposes. A state university may permit its property to be used for purely religious services without violating the First and Fourteenth Amendments. With this I agree. See Committee for Public Education v. Nyquist, 413 U.S. 756, 813 (1973) (WHITE, J., dissenting); Lemon v. Kurtzman, 403 U.S. 602, 661 (1971) (opinion of WHITE, J.). The Establishment Clause, however, sets limits only on what the State may do with respect to religious organizations; it does not establish what the State is required to do. I have long argued that Establishment Clause limits on state action which incidentally aids religion are not as strict as the Court has held. The step from the permissible to the necessary, however, is a long one. In my view, just as there is room under the Religion Clauses for state policies that may have some beneficial effect on religion, there is also room for state policies that may incidentally burden religion. In other words, I believe the State to be a good deal freer to formulate policies that affect religion in divergent ways than does the majority. See Sherbert v. Verner, 374 U.S. 398, 422-423 (1963) (Harlan, J., dissenting). The majority's position will inevitably lead to those contradictions and tensions between the Establishment and Free Exercise Clauses warned against by Justice Stewart in Sherbert v. Verner, supra, at 416.\nThe University regulation at issue here provides in pertinent part:\n\"No University buildings or grounds (except chapels as herein provided) may be used for purposes of religious worship or religious teaching by either student or nonstudent groups. Student congregations of local *283 churches or of recognized denominations or sects, although not technically recognized campus groups, may use the facilities . . . under the same regulations that apply to recognized campus organizations, provided that no University facilities may be used for purposes of religious worship or religious teaching.\"\nAlthough there may be instances in which it would be difficult to determine whether a religious group used university facilities for \"worship\" or \"religious teaching,\" rather than for secular ends, this is not such a case. The regulation was applied to respondents' religious group, Cornerstone, only after the group explicitly informed the University that it sought access to the facilities for the purpose of offering prayer, singing hymns, reading scripture, and teaching biblical principles. Cornerstone described their meetings as follows: \"Although these meetings would not appear to a casual observer to correspond precisely to a traditional worship service, there is no doubt that worship is an important part of the general atmosphere.\" Chess v. Widmar, 480 F. Supp. 907, 910 (1979).[1] The issue here is only whether the University *284 regulation as applied and interpreted in this case is impermissible under the Federal Constitution. If it is impermissible, it is because it runs afoul of either the Free Speech or the Free Exercise Clause of the First Amendment.\nA large part of respondents' argument, accepted by the court below and accepted by the majority, is founded on the proposition that because religious worship uses speech, it is protected by the Free Speech Clause of the First Amendment.[2] Not only is it protected, they argue, but religious worship qua speech is not different from any other variety of protected speech as a matter of constitutional principle. I believe that this proposition is plainly wrong. Were it right, the Religion Clauses would be emptied of any independent meaning in circumstances in which religious practice took the form of speech.\nAlthough the majority describes this argument as \"novel,\" ante, at 269, n. 6, I believe it to be clearly supported by our previous cases. Just last Term, the Court found it sufficiently *285 obvious that the Establishment Clause prohibited a State from posting a copy of the Ten Commandments on the classroom wall that a statute requiring such a posting was summarily struck down. Stone v. Graham, 449 U.S. 39 (1980). That case necessarily presumed that the State could not ignore the religious content of the written message, nor was it permitted to treat that content as it would, or must, treat other secular messages under the First Amendment's protection of speech. Similarly, the Court's decisions prohibiting prayer in the public schools rest on a content-based distinction between varieties of speech: as a speech act, apart from its content, a prayer is indistinguishable from a biology lesson. See Abington School District v. Schempp, 374 U.S. 203 (1963); Engel v. Vitale, 370 U.S. 421 (1962). Operation of the Free Exercise Clause is equally dependent, in certain circumstances, on recognition of a content-based distinction between religious and secular speech. Thus, in Torcaso v. Watkins, 367 U.S. 488 (1961), the Court struck down, as violative of the Free Exercise Clause, a state requirement that made a declaration of belief in God a condition of state employment. A declaration is again a speech act, but it was the content of the speech that brought the case within the scope of the Free Exercise Clause.\nIf the majority were right that no distinction may be drawn between verbal acts of worship and other verbal acts, all of these cases would have to be reconsidered. Although I agree that the line may be difficult to draw in many cases, surely the majority cannot seriously suggest that no line may ever be drawn.[3] If that were the case, the majority would *286 have to uphold the University's right to offer a class entitled \"Sunday Mass.\" Under the majority's view, such a class would be as a matter of constitutional principle indistinguishable from a class entitled \"The History of the Catholic Church.\"[4]\nThere may be instances in which a State's attempt to disentangle itself from religious worship would intrude upon secular speech about religion. In such a case, the State's action would be subject to challenge under the Free Speech Clause of the First Amendment. This is not such a case. This case involves religious worship only; the fact that that worship is accomplished through speech does not add anything to respondents' argument. That argument must rely upon the claim that the State's action impermissibly interferes with the free exercise of respondents' religious practices. Although this is a close question, I conclude that it does not.\nPlausible analogies on either side suggest themselves. Respondents argue, and the majority agrees, that by permitting any student group to use its facilities for communicative purposes other than religious worship, the University has created a \"public forum.\" Ante, at 267-268. With ample *287 support, they argue that the State may not make content-based distinctions as to what groups may use, or what messages may be conveyed in, such a forum. See Police Department of Chicago v. Mosley, 408 U.S. 92 (1972); Cox v. Louisiana, 379 U.S. 536 (1965). The right of the religious to nondiscriminatory access to the public forum is well established. See Niemotko v. Maryland, 340 U.S. 268 (1951); Murdock v. Pennsylvania, 319 U.S. 105 (1943). Moreover, it is clear that there are bounds beyond which the University could not go in enforcing its regulation: I do not suppose it could prevent students from saying grace before meals in the school cafeteria, or prevent distribution of religious literature on campus.[5]\nPetitioners, on the other hand, argue that allowing use of their facilities for religious worship is constitutionally indistinguishable from directly subsidizing such religious services: It would \"fun[d] a specifically religious activity in an otherwise substantially secular setting.\" Hunt v. McNair, 413 U.S. 734, 743 (1973). They argue that the fact that secular student groups are entitled to the in-kind subsidy at issue here does not establish that a religious group is entitled to the same subsidy. They could convincingly argue, for example, that a state university that pays for basketballs for the basketball team is not thereby required to pay for Bibles for a group like Cornerstone.[6]\n*288 A third analogy suggests itself, one that falls between these two extremes. There are a variety of state policies which incidentally benefit religion that this Court has upheld without implying that they were constitutionally required of the State. See Board of Education v. Allen, 392 U.S. 236 (1968) (state loan of textbooks to parochial school students); Zorach v. Clauson, 343 U.S. 306 (1952) (release of students from public schools, during school hours, to perform religious activities away from the school grounds); Everson v. Board of Education, 330 U.S. 1 (1947) (state provision of transportation to parochial school students). Provision of university facilities on a uniform basis to all student groups is not very different from provision of textbooks or transportation. From this perspective the issue is not whether the State must, or must not, open its facilities to religious worship; rather, it is whether the State may choose not to do so.\nEach of these analogies is persuasive. Because they lead to different results, however, they are of limited help in reaching a decision here. They also demonstrate the difficulty in reconciling the various interests expressed in the Religion Clauses. In my view, therefore, resolution of this case is best achieved by returning to first principles. This requires an assessment of the burden on respondents' ability freely to exercise their religious beliefs and practices and of the State's interest in enforcing its regulation.\nRespondents complain that compliance with the regulation would require them to meet \"about a block and a half\" from campus under conditions less comfortable than those previously available on campus.[7] I view this burden on free exercise *289 as minimal. Because the burden is minimal, the State need do no more than demonstrate that the regulation furthers some permissible state end. The State's interest in avoiding claims that it is financing or otherwise supporting religious worship in maintaining a definitive separation between church and State is such an end. That the State truly does mean to act toward this end is amply supported by the treatment of religion in the State Constitution.[8] Thus, I believe the interest of the State is sufficiently strong to justify the imposition of the minimal burden on respondents' ability freely to exercise their religious beliefs.\nOn these facts, therefore, I cannot find that the application of the regulation to prevent Cornerstone from holding religious worship services in University facilities violates the First and Fourteenth Amendments. I would not hold as the majority does that if a university permits students and others to use its property for secular purposes, it must also furnish facilities to religious groups for the purposes of worship and the practice of their religion. Accordingly, I would reverse the judgment of the Court of Appeals.\nNOTES\n[*] Briefs of amici curiae urging reversal were filed by Jerold Blumoff and Marc D. Stern for the American Jewish Congress; and by Justin J. Finger, Jeffrey P. Sinensky, and Meyer Eisenberg for the Anti-Defamation League of B'nai B'rith.\n[1] The University of Missouri at Kansas City (UMKC) is one of four campuses of the University of Missouri, an institution of the State of Missouri.\n[2] Cornerstone is an organization of evangelical Christian students from various denominational backgrounds. According to an affidavit filed in 1977, \"perhaps twenty students . . . participate actively in Cornerstone and form the backbone of the campus organization.\" Affidavit of Florian Chess (Sept. 29, 1977), quoted in Chess v. Widmar, 480 F. Supp. 907, 911 (WD Mo. 1979). Cornerstone held its on-campus meetings in classrooms and in the student center. These meetings were open to the public and attracted up to 125 students. A typical Cornerstone meeting included prayer, hymns, Bible commentary, and discussion of religious views and experiences.\n[3] The pertinent regulations provide as follows:\n\n\"4.0314.0107 No University buildings or grounds (except chapels as herein provided) may be used for purposes of religious worship or religious teaching by either student or nonstudent groups. . . . The general prohibition against use of University buildings and grounds for religious worship or religious teaching is a policy required, in the opinion of The Board of Curators, by the Constitution and laws of the State and is not open to any other construction. No regulations shall be interpreted to forbid the offering of prayer or other appropriate recognition of religion at public functions held in University facilities. . . .\n\"4.0314.0108 Regular chapels established on University grounds may be used for religious services but not for regular recurring services of any groups. Special rules and procedures shall be established for each such chapel by the Chancellor. It is specifically directed that no advantage shall be given to any religious group.\"\nThere is no chapel on the campus of UMKC. The nearest University chapel is at the Columbia campus, approximately 125 miles east of UMKC.\nAlthough the University had routinely approved Cornerstone meetings before 1977, the District Court found that University officials had never \"authorized a student organization to utilize a University facility for a meeting where they had full knowledge that the purposes of the meeting include[d] religious worship or religious teaching.\" Chess v. Widmar, supra, at 910.\n[4] Respondent Clark Vincent and Florian Chess, a named plaintiff in the action in the District Court, were among the students who initiated the action on October 13, 1977. Named as defendants were the petitioner Gary Widmar, the Dean of Students at UMKC, and the University's Board of Curators.\n[5] This Court has recognized that the campus of a public university, at least for its students, possesses many of the characteristics of a public forum. See generally Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972); Cox v. Louisiana, 379 U.S. 536 (1965). \"The college classroom with its surrounding environs is peculiarly `the marketplace of ideas.' \" Healy v. James, 408 U.S. 169, 180 (1972). Moreover, the capacity of a group or individual \"to participate in the intellectual give and take of campus debate . . . [would be] limited by denial of access to the customary media for communicating with the administration, faculty members, and other students.\" Id., at 181-182. We therefore have held that students enjoy First Amendment rights of speech and association on the campus, and that the \"denial [to particular groups] of use of campus facilities for meetings and other appropriate purposes\" must be subjected to the level of scrutiny appropriate to any form of prior restraint. Id., at 181, 184.\n\nAt the same time, however, our cases have recognized that First Amendment rights must be analyzed \"in light of the special characteristics of the school environment.\" Tinker v. Des Moines Independent School District, 393 U.S. 503, 506 (1969). We continue to adhere to that view. A university differs in significant respects for public forums such as streets or parks or even municipal theaters. A university's mission is education, and decisions of this Court have never denied a university's authority to impose reasonable regulations compatible with that mission upon the use of its campus and facilities. We have not held, for example, that a campus must make all of its facilities equally available to students and nonstudents alike, or that a university must grant free access to all of its grounds or buildings.\n[6] The dissent argues that \"religious worship\" is not speech generally protected by the \"free speech\" guarantee of the First Amendment and the \"equal protection\" guarantee of the Fourteenth Amendment. If \"religious worship\" were protected \"speech,\" the dissent reasons, \"the Religion Clauses would be emptied of any independent meaning in circumstances in which religious practice took the form of speech.\" Post, at 284. This is a novel argument. The dissent does not deny that speech about religion is speech entitled to the general protections of the First Amendment. See post, at 283-284, and n. 2, 286. It does not argue that descriptions of religious experiences fail to qualify as \"speech.\" Nor does it repudiate last Term's decision in Heffron v. International Society for Krishna Consciousness, Inc., which assumed that religious appeals to nonbelievers constituted protected \"speech.\" Rather, the dissent seems to attempt a distinction between the kinds of religious speech explicitly protected by our cases and a new class of religious \"speech act[s],\" post, at 285, constituting \"worship.\" There are at least three difficulties with this distinction.\n\nFirst, the dissent fails to establish that the distinction has intelligible content. There is no indication when \"singing hymns, reading scripture, and teaching biblical principles,\" post, at 283, cease to be \"singing, teaching, and reading\" all apparently forms of \"speech,\" despite their religious subject matter and become unprotected \"worship.\"\nSecond, even if the distinction drew an arguably principled line, it is highly doubtful that it would lie within the judicial competence to administer. Cf. Fowler v. Rhode Island, 345 U.S. 67, 70 (1953). Merely to draw the distinction would require the university and ultimately the courts to inquire into the significance of words and practices to different religious faiths, and in varying circumstances by the same faith. Such inquiries would tend inevitably to entangle the State with religion in a manner forbidden by our cases. E. g., Walz v. Tax Comm'n, 397 U.S. 664, 668 (1970).\nFinally, the dissent fails to establish the relevance of the distinction on which it seeks to rely. The dissent apparently wishes to preserve the vitality of the Establishment Clause. See post, at 284-285. But it gives no reason why the Establishment Clause, or any other provision of the Constitution, would require different treatment for religious speech designed to win religious converts, see Heffron, supra, than for religious worship by persons already converted. It is far from clear that the State gives greater support in the latter case than in the former.\n[7] See also Healy v. James, supra, at 184:\n\n\"It is to be remembered that the effect of the College's denial of recognition was a form of prior restraint, denying to petitioners' organization the range of associational activities described above. While a college has a legititify interest in preventing disruption on the campus, which . . . may justify such restraint, a `heavy burden' rests on the college to demonstrate the appropriateness of that action.\"\n[8] \"Congress shall make no law respecting an establishment of religion. . . .\" U. S. Const., Amdt. 1. The Establishment Clause has been made applicable to the States through the Fourteenth Amendment. See Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).\n[9] As the dissent emphasizes, the Establishment Clause requires the State to distinguish between \"religious\" speech speech, undertaken or approved by the State, the primary effect of which is to support an establishment or religion and \"nonreligious\" speech speech, undertaken or approved by the State, the primary effect of which is not to support an establishment or religion. This distinction is required by the plain text of the Constitution. It is followed in our cases. E. g., Stone v. Graham, 449 U.S. 39 (1980). The dissent attempts to equate this distinction with its view of an alleged constitutional difference between religious \"speech\" and religious \"worship.\" See post, at 285, and n. 3. We think that the distinction advanced by the dissent lacks a foundation in either the Constitution or in our cases, and that it is judicially unmanageable.\n[10] It is the avowed purpose of UMKC to provide a forum in which students can exchange ideas. The University argues that use of the forum for religious speech would undermine this secular aim. But by creating a forum the University does not thereby endorse or promote any of the particular ideas aired there. Undoubtedly many views are advocated in the forum with which the University desires no association.\n\nBecause this case involves a forum already made generally available to student groups, it differs from those cases in which this Court has invalidated statutes permitting school facilities to be used for instruction by religious groups, but not by others. See, e. g., McCollum v. Board of Education, 333 U.S. 203 (1948). In those cases the school may appear to sponsor the views of the speaker.\n[11] We agree with the Court of Appeals that the University would risk greater \"entanglement\" by attempting to enforce its exclusion of \"religious worship\" and \"religious speech.\" See Chess v. Widmar, 635 F.2d 1310, 1318 (CA8 1980). Initially, the University would need to determine which words and activities fall within \"religious worship and religious teaching.\" This alone could prove \"an impossible task in an age where many and various beliefs meet the constitutional definition of religion.\" O'Hair v. Andrus, 198 U. S. App. D. C. 198, 203, 613 F.2d 931, 936 (1979) (footnote omitted); see L. Tribe, American Constitutional Law § 14-6 (1978). There would also be a continuing need to monitor group meetings to ensure compliance with the rule.\n[12] In finding that an \"equal access\" policy would have the primary effect of advancing religion, the District Court in this case relief primarily on Tilton v. Richardson, 403 U.S. 672 (1971). In Tilton this Court upheld the grant of federal financing assistance to sectarian colleges for secular purposes, but circumscribed the terms of the grant to ensure its constitutionality. Although Congress had provided that federally subsidized buildings could not be used for sectarian or religious worship for 20 years, the Court considered this restriction insufficient: \"If, at the end of 20 years, the building is, for example, converted into a chapel or otherwise used to promote religious interests, the original federal grant will in part have the [constitutionally impermissible] effect of advancing religion.\" Id., at 683. From this statement the District Court derived the proposition that state funds may not be used to provide or maintain buildings used by religious organizations.\n\nWe do not believe that Tilton can be read so broadly. In Tilton the Court was concerned that a sectarian institution might convert federally funded buildings to religious uses or otherwise stamp them with the imprimatur of religion. But nothing in Tilton suggested a limitation on the State's capacity to maintain forums equally open to religious and other discussion. Cases before and after Tilton have acknowledged the right of religious speakers to use public forums on equal terms with others. See, e. g., Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640 (1981); Saia v. New York, 334 U.S. 558 (1948).\n[13] This case is different from cases in which religious groups claim that the denial of facilities not available to other groups deprives them of their rights under the Free Exercise Clause. Here, the University's forum is already available to other groups, and respondents' claim to use that forum does not rest solely on rights claimed under the Free Exercise Clause. Respondents' claim also implicates First Amendment rights of speech and association, and it is on the bases of speech and association rights that we decide the case. Accordingly, we need not inquire into the extent, if any, to which free exercise interests are infringed by the challenged University regulation. Neither do we reach the questions that would arise if state accommodation of free exercise and free speech rights should, in a particular case, conflict with the prohibitions of the Establishment Clause.\n[14] University students are, of course, young adults. They are less impressionable than younger students and should be able to appreciate that the University's policy is one of neutrality toward religion. See Tilton v. Richardson, supra, at 685-686. The University argues that the Cornerstone students themselves admitted in affidavits that \"[s]tudents know that if something is on campus, then it is a student organization, and they are more likely to feel comfortable attending a meeting.\" Affidavit of Florian Frederick Chess, App. 18, 19. In light of the large number of groups meeting on campus, however, we doubt students could draw any reasonable inference of University support from the mere fact of a campus meeting place. The University's student handbook already notes that the University's name will not \"be identified in any way with the aims, policies, programs, products, or opinions of any organization or its members.\" 1980-1981 UMKC Student Handbook 25.\n[15] This Court has similarly rejected \"the recurrent agreement that all aid [to parochial schools] is forbidden because aid to one aspect of an institution frees it to spend its other resources on religious ends.\" Hunt v. McNair, 413 U.S. 734, 743 (1973).\n[16] See, e. g., Americans United v. Rogers, 538 S.W.2d 711, 720 (Mo.) (en banc) (holding Missouri Constitution requires stricter separation of church and State than does Federal Constitution), cert. denied, 429 U.S. 1029 (1976); Harfst v. Hoegen, 349 Mo. 808, 815-816, 163 S.W.2d 609, 613-614 (Mo. 1942) (en banc) (same).\n[17] See Mo. Const., Art. 1, §§ 6, 7; Art. 9, § 8. In Luetkemeyer v. Kaufmann, 364 F. Supp. 376 (WD Mo. 1973), aff'd, 419 U.S. 888 (1974), the District Court found Missouri had a compelling interest in compliance with its own Constitution.\n[18] U. S. Const., Art. VI, cl. 2.\n[19] See, e. g., Grayned v. City of Rockford, 408 U.S. 104, 116 (1972) (\"The nature of a place, `the pattern of its normal activities, dictate the kinds of regulations of time, place, and manner that are reasonable,' \" quoting Wright, The Constitution on the Campus, 22 Vand. L. Rev. 1027, 1042 (1969)).\n[20] In his opinion concurring in the judgment, post, at 277-287, JUSTICE STEVENS expresses concern that use of the terms \"compelling state interest\" and \"public forum\" may \"undermine the academic freedom of public universities.\" As the text above makes clear, this concern is unjustified. See also n. 5, supra. Our holding is limited to the context of a public forum created by the University it self.\n[1] As stated by the Court, \"[i]n order to justify discriminatory exclusion from a public forum based on the religious content of a group's intended speech, the University must therefore satisfy the standard of review appropriate to content-based exclusions.\" Ante, at 269-270. See also ante, this page, n. 20 (\"Our holding is limited to the context of a public forum created by the University itself\").\n[2] In Sweezy v. New Hampshire, 354 U.S. 234, Justice Frankfurter forcefully spoke of \"the grave harm resulting from governmental intrusion into the intellectual life of a university . . . .\" Id., at 261 (concurring in result). Justice Frankfurter quoted with approval portions of an address by T. H. Huxley:\n\n\" `It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail \"the four essential freedoms\" of a university to determine for itself of academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.' \" Id., at 263.\nAlthough these comments were not directed at a public university's concern with extracurricular activities, it is clear that the \"atmosphere\" of a university includes such a critical aspect of campus life. See also University of California Regents v. Bakke, 438 U.S. 265, 312 (opinion of POWELL, J.) (\"Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment\"); Note, Academic Freedom and Federal Regulation of University Hiring, 92 Harv. L. Rev. 879 (1879). Cf. Van Alstyne, The Specific Theory of Academic Freedom and the General Issue of Civil Liberty, reprinted in The Concept of Academic Freedom 59, 77-81 (E. Pincoffs ed. 1972).\n[3] In Illinois Elections Bd. v. Socialist Workers Party, 440 U.S. 173, JUSTICE BLACKMUN expressed concern with\n\n\"what seems to be a continuing tendency in this Court to use as tests such easy phrases as `compelling [state] interest' and `least drastic [or restrictive] means.' I have never been able fully to appreciate just what a `compelling state interest' is. If it means `convincingly controlling,' or `incapable of being overcome' upon any balancing process, then, of course, the test merely announces an inevitable result, and the test is no test at all. And, for me, `least drastic means' is a slippery slope and also the signal of the result the Court has chosen to reach. A judge would be unimaginative indeed if he could not come up with something a little less `drastic' or a little less `restrictive' in almost any situation, and thereby enable himself to vote to strike legislation down.\" Id., at 188-189 (concurring opinion) (citation omitted).\n[4] In Healy, the Court stated:\n\n\"The opinions below also assumed that petitioner had the burden of showing entitlement to recognition by the College. While petitioners have not challenged the procedural requirement that they file an application in conformity with the rules of the College, they do question the view of the courts below that final rejection could rest on their failure to convince the administration that their organization was unaffiliated with the National [Students for a Democratic Society]. For reasons to be stated later in this opinion, we do not consider the issue of affiliation to be a controlling one. But, apart from any particular issue, once petitioners had failed an application in conformity with the requirements, the burden was upon the College administration to justify its decision of rejection. It is to be remembered that the effect of the College's denial of recognition was a form of prior restraint, denying to petitioners' organization the range of associational activities described above. While a college has a legitimate interest in preventing disrupting on the campus, which under circumstances requiring the safeguarding of that interest may justify such restraint, a `heavy burden' rests on the college to demonstrate the appropriateness of that action.\" 408 U.S., at 183-184 (footnotes and citations omitted).\n[5] The University's asserted determination to keep Church and State completely separate, pursuant to the alleged dictates of the Missouri Constitution, is not without qualification. The very regulations at issue provide that \"[n]o regulations shall be interpreted to forbid the offering of prayer or other appropriate recognition of religion at public functions held in University facilities. . . .\" See ante, at 266, n. 3.\n[6] See Farber, Content Regulation and the First Amendment: A Revisionist View, 68 Geo. L. J. 727 (1980).\n[1] Cornerstone was denied access to University facilities because it intended to use those facilities for regular religious services in which \"worship is an important part of the general atmosphere.\" There is no issue here as to the application of the regulation to \"religious teaching.\" Reaching this issue is particularly inappropriate in this case because nothing in the record indicates how the University has interpreted the phrase \"religious teaching\" or even whether it has ever been applied to activity that was not clearly \"religious worship.\" The District Court noted that plaintiffs did not contend that they were \"limited, in any way, for holding on campus meetings that do not include religious worship services.\" 480 F. Supp., at 913. At oral argument, counsel for the University indicated that the regulation would not bar discussion of biblical texts under circumstances that did not constitute \"religious worship.\" Tr. of Oral Arg. 9. The sole question in this case involves application of the regulation to prohibit regular religious worship services in University buildings.\n[2] Given that the majority's entire argument turns on this description of religious services as speech, it is surprising that the majority assumes this proposition to require no argument. The majority assumes the conclusion by describing the University's action as discriminating against \"speakers based on their desire to . . . engage in religious worship and discussion.\" Ante, at 269. As noted above, it is not at all clear that the University has discriminated or intends to discriminate against \"religious discussion\" as a preliminary matter, it is not even clear what the majority means by \"religious discussion\" or how it entered the case. That religious worship is a form of speech, the majority takes to have been established by three cases. Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640 (1981); Niemotko v. Maryland, 340 U.S. 268 (1951); Saia v. New York, 334 U.S. 558 (1948). None of these cases stand for this proposition. Heffron and Saia involved the communication of religious views to a nonreligious, public audience. Talk about religion and about religious beliefs, however, is not the same as religious services of worship. Niemotko was an equal protection challenge to a discriminatory denial of one religious group's access to a public park. The Court specifically stated that it was not addressing the question of whether the State could uniformly deny all religious groups access to public parks. 340 U.S., at 272.\n[3] Indeed, while footnote 6 of the majority opinion suggests that no intelligible distinction may be drawn between worship and other forms of speech, footnote 9 recognizes that the Establishment Clause \"requires\" that such a line be drawn. The majority does not adequately explain why the State is \"required\" to observe a line in one context, but prohibited from voluntarily recognizing it in another context.\n[4] Counsel for respondents was somewhat more forthright in recognizing the extraordinary breadth of his argument, than is the majority, Counsel explicitly stated that once the distinction between speech and worship is collapsed a university that generally provides student groups access to its facilities would be constitutionally required to allow its facilities to be used as a church for the purpose of holding \"regular church services.\" Tr. of Oral Arg. 26. Similarly, although the majority opinion limits its discussion to student groups, counsel for respondents recognized that the First Amendment argument relied upon would apply equally to nonstudent groups. He recognized that respondents' submission would require the University to make available its buildings to the Catholic Church and other denominations for the purpose of holding religious services, if University facilities were made available to nonstudent groups. Id., at 39. In other words, the University could not avoid the conversion of one of its buildings into a church, as long as the religious group meets the same neutral requirements of entry e. g., rent as are imposed on other groups.\n[5] There are obvious limits on the scope of this analogy. I know of no precedent holding that simply because a public forum is open to all kinds of speech including speech about religion it must be open to regular religious worship services as well. I doubt that the State need stand by and allow it public forum to become a church for any religious sect that chooses to stand on its right of access to that forum.\n[6] There are, or course, limits to this subsidy argument. Sherbert v. Verner, 374 U.S. 398 (1963), and Thomas v. Indiana Employment Security Division, 450 U.S. 707 (1981), demonstrate that in certain circumstances the State may be required to \"subsidize,\" at least indirectly, religious practices, under circumstances in which it does not and need not subsidize similar behavior founded on secular motives.\n[7] Respondents also complain that the University action has made their religious message less attractive by suggesting that it is not appropriate fare for the college campus. I give no weight to this because it is indistinguishable from an argument that respondents are entitled to the appearance of an endorsement of their beliefs and practices from the University.\n[8] Since 1820, the Missouri Constitution has contained provisions requiring a separation of church and State. The Missouri Supreme Court has held that the state constitutional provisions are \"not only more explicit but more restrictive than the Establishment Clause of the United States Constitution.\" Paster v. Tussey, 512 S.W.2d 97, 102 (1974).\n\n",
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| Supreme Court | Supreme Court of the United States | F | USA, Federal |
427,264 | Bauer, Neaher, Wood | 1983-11-09 | false | rosemarie-manning-v-ashland-oil-company | null | Rosemarie Manning v. Ashland Oil Company | Rosemarie MANNING, Plaintiff-Appellant, v. ASHLAND OIL COMPANY, Defendant-Appellee | Barry M. Woldman, Chicago, Ill., for plaintiff-appellant., Lawrence P. Bemis, Kirkland & Ellis, Chicago, Ill., for defendant-appellee. | null | null | null | null | null | null | null | Argued Sept. 16, 1983. | See, also, 498 F.Supp. 1382. | null | 8 | Published | null | <parties data-order="0" data-type="parties" id="b264-3">
Rosemarie MANNING, Plaintiff-Appellant, v. ASHLAND OIL COMPANY, Defendant-Appellee.
</parties><br><docketnumber data-order="1" data-type="docketnumber" id="b264-6">
No. 82-3101.
</docketnumber><br><court data-order="2" data-type="court" id="b264-7">
United States Court of Appeals, Seventh Circuit.
</court><br><otherdate data-order="3" data-type="otherdate" id="b264-8">
Argued Sept. 16, 1983.
</otherdate><br><decisiondate data-order="4" data-type="decisiondate" id="b264-9">
Decided Nov. 9, 1983.
</decisiondate><br><seealso data-order="5" data-type="seealso" id="b264-12">
See, also, 498 F.Supp. 1382.
</seealso><br><attorneys data-order="6" data-type="attorneys" id="b264-24">
Barry M. Woldman, Chicago, Ill., for plaintiff-appellant.
</attorneys><br><attorneys data-order="7" data-type="attorneys" id="b264-25">
Lawrence P. Bemis, Kirkland & Ellis, Chicago, Ill., for defendant-appellee.
</attorneys><br><p data-order="8" data-type="judges" id="b264-26">
Before BAUER and WOOD, Circuit Judges, and NEAHER, Senior District Judge.
<a class="footnote" href="#fn*" id="fn*_ref">
*
</a>
</p><div class="footnotes"><div class="footnote" data-order="9" data-type="footnote" id="fn*" label="*">
<a class="footnote" href="#fn*_ref">
*
</a>
<p id="b264-15">
The Honorable Edward R. Neaher, Senior District Judge for the Eastern District of New York, is sitting by designation.
</p>
</div></div> | [
"721 F.2d 192"
]
| [
{
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"opinion_text": "721 F.2d 192\n Rosemarie MANNING, Plaintiff-Appellant,v.ASHLAND OIL COMPANY, Defendant-Appellee.\n No. 82-3101.\n United States Court of Appeals,Seventh Circuit.\n Argued Sept. 16, 1983.Decided Nov. 9, 1983.\n \n 1\n Barry M. Woldman, Chicago, Ill., for plaintiff-appellant.\n \n \n 2\n Lawrence P. Bemis, Kirkland & Ellis, Chicago, Ill., for defendant-appellee.\n \n \n 3\n Before BAUER and WOOD, Circuit Judges, and NEAHER, Senior District Judge.*\n \n \n 4\n NEAHER, Senior District Judge.\n \n \n 5\n Rosemarie Manning (plaintiff) appeals the district court's entry of a directed verdict pursuant to Fed.R.Civ.P. 50 in favor of defendant Ashland Oil Company (Ashland), which dismissed her claim that Ashland be held responsible for injuries she sustained while using a can of lacquer thinner she had purchased from others.\n \n \n 6\n The following facts are not in dispute. In this case Ashland was a bulk supplier of lacquer thinner. At the request of Century Industries, Inc. (Century), Ashland duplicated a sample blend of lacquer thinner. Century repackaged the thinner into retail size containers and sold it to Yenkin Majestic Paint Company (Yenkin), which copied a Century label and attached it to the containers. The label read:\n \n MAJESTIC LACQUER THINNER\n \n 7\n A Specially Formulated Thinner for Reducing Lacquers, Removing Old Lacquer Coats, Road Tar and Stains or for Cleaning Brushes and Spray Guns.\n \n DANGER. FLAMMABLE MIXTURE\n \n 8\n * * *\n \n \n 9\n * * *\n \n \n 10\n Do not take internally. If swallowed, do not induce vomiting. CALL PHYSICIAN IMMEDIATELY. Keep away from heat, sparks, and open flame. Avoid prolonged contact with skin and breathing of vapor or spray mist. In case of contact with skin or eyes, flush repeatedly with cold water. Close container after each use. Do not transfer contents to bottles or other unlabeled containers. Use with adequate ventilation.\n \n \n 11\n KEEP OUT OF THE REACH OF CHILDREN.\n \n \n 12\n Distributed by YENKIN MAJESTIC Paint Corporation manufacturers. Columbus, Ohio 43219.\n \n \n 13\n Yenkin sold the lacquer thinner to Woolco, a retailer, where, in 1975, plaintiff went to purchase a product to remove tar stains from her kitchen floor. Woolco's employee recommended the lacquer thinner.\n \n \n 14\n Plaintiff used the thinner to remove the tar stains and, pleased with the result, applied the product to her entire kitchen floor. Lacquer thinner is a flammable substance; the mixture in question had a flashpoint of 28 ?. It ignited and subsequently injured the plaintiff. The source of the ignition could have been static electricity, the turning on of an electric motor, the type of which would be found on a kitchen appliance such as a refrigerator or any generation of a small spark.\n \n Plaintiff presents two issues on appeal:\n \n 15\n 1. Whether the trial court erred in not allowing the jury to determine if Ashland had satisfied its common law duty to warn and instruct an ultimate user of the lacquer thinner; and\n \n \n 16\n 2. Whether the trial court erred in not allowing the jury to determine whether Ashland had satisfied its statutory duty to examine the label adopted by subsequent vendors of the lacquer thinner.\n \n I.\n \n 17\n The parties agree that the law of Illinois has not established the extent of the duty of a manufacturer or supplier to warn the ultimate user of the dangers associated with a product. Plaintiff relies upon decisions from other jurisdictions which have imposed a duty upon the manufacturer to warn ultimate consumers, or at least to ascertain that a middleman is knowledgeable enough about the product so as to warn the ultimate consumer. She does not, however, address the issue at hand, which is what effect the Illinois courts would give these decisions in light of her evidence and existing Illinois law.\n \n \n 18\n In Shell Oil Co. v. Gutierrez, 119 Ariz.App. 426, 581 P.2d 271 (1978), which plaintiff cites, the court applied comment n to section 388 of the Second Restatement of Torts to reject a claim by Shell Oil Company that it should not be expected to warn remote users beyond its immediate vendee. Shell had sold xylene to a packager who placed it in metal drums and sold it to a retailer. The metal drums were very dangerous because they were never completely emptied of the xylene, which, when vaporized, tended to explode. Consequently, the drums should have been returned immediately after they were used. Shell did not pass this information to any of the middlemen. As a result, the court found that there was adequate evidence that Shell had not adequately warned the middlemen so as to sustain the verdict.\n \n Section 388 provides:\n \n 19\n \"One who supplies directly or through a third person a chattel for another to use 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\n \n \n 20\n (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\n \n \n 21\n (b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and\n \n \n 22\n (c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.\"\n \n \n 23\n Comment n is intended to explain clause c of the section. For section 388 to apply at all, however, the plaintiff must demonstrate that the supplier satisfies all three clauses of the section.\n \n \n 24\n In the case at bar, the evidence discloses that Ashland did not know and had no reason to know that the lacquer thinner was likely to be dangerous for the use for which it was supplied. Century had requested \"a good general purpose lacquer thinner\" and had furnished a sample can of a lacquer thinner it was buying from another company. Its representative stated that he wanted \"something like we have.\" Ashland complied by duplicating the blend, which was safe and was subsequently properly labeled for its intended use as lacquer thinner. From the circumstances, Ashland had no reason to expect or foresee that Century would advise a consumer to use the lacquer thinner for removing tar stains or that a consumer would use it to clean an entire kitchen floor. Thus, plaintiff did not submit sufficient evidence upon the requirement of clause a, and the case would not have gone to the jury under this theory despite any duty to warn which we might add to the law of Illinois.\n \n \n 25\n Plaintiff also relies upon Bryant v. Technical Research Co., 654 F.2d 1337, 1346-48 (9th Cir.1981) (Idaho law), where the court concluded that \"the adequacy of a bulk manufacturer's warning to those other than its immediate vendee is usually held to be a jury question.\" Id. at 1346. The court's statement is not absolute because a defendant might be able to present evidence entitling it to a judgment as a matter of law upon this issue. The facts of the instant case, however, do not involve a failure to warn. The parties do not dispute that the warnings contained on the label were adequate for a lacquer thinner; thus, the only issue remaining is whether Ashland had a duty to inspect the middleman's label or packaging to determine if the warning was adequate for the lacquer vis-a-vis its unintended use as a cleaning agent to remove tar stains.1\n \n \n 26\n Perhaps anticipating our conclusions with respect to Bryant and Shell Oil, plaintiff also relies upon cases which require the supplier to ascertain that the middleman is knowledgeable enough about the product as to be able to provide adequate instructions and warnings to the consumer about its use. E.g., Burton v. L.O. Smith Foundry Products Co., 529 F.2d 108, 111 (7th Cir.1976) (Indiana law) (per curiam ); Jones v. Hittle, 219 Kan. 627, 549 P.2d 1383, 1393-94 (1976). These cases do not mandate that the supplier must always inspect the middleman's packaging and labeling in order to satisfy this obligation. Defendant notes that many jurisdictions have refused to attach a duty to warn remote users because the supplier cannot control or monitor the middleman's packaging and labeling. Shell Oil Co. v. Harrison, 425 So.2d 67, 70 (Fla.App.1982); Hill v. Wilmington Chemical Corp., 279 Minn. 336, 156 N.W.2d 898, 902 (1968); cf. E.I. duPont de Nemours & Co. v. McCain, 414 F.2d 369 (5th Cir.1969) (Tex. law). Based upon the evidence, we need not consider whether the Illinois courts would impose this lesser duty, much less a duty to inspect, upon a supplier. The evidence reveals that Ashland satisfied this obligation.\n \n \n 27\n Century, in business since 1938, is a manufacturer of sealants, paint and paint-related products. It also repackages solvents, one of which is lacquer thinner, and had been repackaging lacquer thinner for 15 to 20 years at the time of plaintiff's injuries. Further, it represented itself as being \"as knowledgeable as other manufacturers\" concerning the propensities of the solvents, including lacquer thinner, that it repackaged. The company's representatives, with whom Ashland had dealt, were aware that lacquer thinner has a low flash point and is flammable.2 They testified that they never intended that the product be used as a cleaning agent in the home.\n \n \n 28\n The courts which impose a duty to learn a middleman's knowledge of a product allow the supplier to rely upon the middleman, using his knowledge or expertise, to pass on any warnings or instructions for the safe use of the product. Younger v. Dow Corning Corp., 202 Kan. 674, 451 P.2d 177 (1969) (manufacturer may rely upon employer to communicate its instructions about usage, contained on the labels of chemicals, to employee-users); Reed v. Pennwalt Corp., 22 Wash.App. 718, 591 P.2d 478 (1979), appeal dismissed, 93 Wash.2d 5, 604 P.2d 164 (1979) (same) (per curiam ); Terhune v. A.H. Robins Co., 90 Wash.2d 9, 577 P.2d 975, 979 (1978) (manufacturer entitled to rely upon physician to communicate a warning to patient-consumer). The label on the lacquer thinner demonstrates that Ashland did not unreasonably rely upon Century's explicit and implicit representations of knowledge about lacquer thinner. The product was properly labeled for use as a lacquer thinner. It would have been highly unlikely, under the circumstances, however, for Ashland to have foreseen that Century would add an inappropriate use to an otherwise adequate warning label.3\n \n \n 29\n \"The care to be exercised in discharging the duty to warn is therefore measured by the dangerous potentialities of the commodity as well as the foreseeable use to which it might be put.\" Dougherty v. Hooker Chemical Corp., 540 F.2d 174, 179 (3d Cir.1976) (Pa. law) (relying upon comment n, section 388, Restatement 2d of Torts).\n \n \n 30\n Plaintiff's summary of the evidence belies her misunderstanding of the proper measure of Ashland's responsibility:\n \n \n 31\n \"In the instant case, the evidence before the Court when viewed most favorably to the appellant shows that Century was a repackager, not a manufacturer of solvents (R. 166). At the time lacquer thinner was purchased from Ashland and for several years preceding, Century did not have a quality control department (R. 353), and did not have a lab (R. 353). None of the officers had a degree in Chemistry (R. 353). Century had for a time an in house chemist who worked on new formulations (R. 354). He had nothing to do with lacquer thinner (R. 354). No one at Century checked the flammability characteristics of the lacquer thinner during the five (5) year period prior to the time of this occurrence (R. 354, 6). Century had no expertise in the preparation or formulation of lacquer thinner (R. 359, 60). No one at Century tested the thinner or tested its flashpoint (R. 362). No one at Century knew what the basis was for saying the thinner could be used to remove tar stains (R. 362, 63). The thinner was [purchased] without any knowledge as to its flashpoint (R. 364). Century didn't expect it would be used in the home (R. 366) and therefore didn't test the product to see if it was safe for use in the home.\" Appellant's Brief at 16.\n \n \n 32\n We are not concerned with the reasonable inferences that may be drawn from the circumstances of the actual internal operation of Century's business, but rather, whether Ashland acted reasonably in light of what it objectively knew about the party to whom it sold the lacquer thinner. This statement of the applicable standard is consistent with Illinois' rule that \"[w]hether harm was legally foreseeable bears on what was apparent to the defendant at the time of his complained of conduct and not what may appear through the exercise of hindsight. Cunis v. Brennan (1974), 56 Ill.2d 372, 308 N.E.2d 617.\" Anderson v. Yellow Cab Co., 28 Ill.App.3d 656, 329 N.E.2d 278, 281.\n \n \n 33\n In Terhune v. A.H. Robins Co., supra, the court allowed the manufacturer to rely upon the physician's expertise about the product, even though the physician had not actually communicated the warning he had received to the patient-user. Similarly, Ashland reasonably relied upon Century not to label the lacquer thinner so as to suggest unintended or unsafe uses. Thus we agree with the district court's characterization of the evidence:\n \n \n 34\n \"The uncontradicted picture was one of an experienced buyer, knowledgeable in the proper uses of lacquer thinner, as Mr. Duwe described to Mr. Brothers, that he himself was indeed knowledgeable about those proper uses, and then ordering that product, this experienced buyer for all of those proper general all purpose lacquer thinner uses.\n \n \n 35\n \"There was not a word or a hint anywhere in this evidence focusing once again on the critical relationship between Century and Ashland, to put Ashland on notice that the product might be put or might be ambiguously labeled so that others might be led to put the product to any totally unsuited uses.\"\n \n \n 36\n As a result, if Ashland had such a duty under Illinois law, we find that it met that duty and consequently, we need not determine, in this case, whether Illinois would impose such a duty to inspect labels in general.\n \n II.\n \n 37\n Plaintiff contends that the district court erred in not submitting the case to the jury under the Consumer Products Safety Act, 15 U.S.C. 2072(a). She argues that Ashland's failure to comply with 15 U.S.C. 2063 constituted a basis for a finding of negligence.\n \n \n 38\n Based upon the record, we need not consider this issue. After the district court had reached its decision to enter a directed verdict, it summarized the evidence and explained its reasoning to the jury and then discharged them. It then stated:\n \n \n 39\n \"I reviewed, as well as having reviewed the transcripts that you were good enough to provide me, I reviewed both the law which I will comment on only briefly in terms of characterizing, and also the prior pleadings on this matter.\n \n \n 40\n \"I found, accurately, that it had been represented by Ashland that this claim had been one asserted in Count 5 of the fifth amended complaint that was dismissed by Judge Crowley at the status report that immediately preceded April of 1979.\n \n \n 41\n \"Then at that point the plaintiff moved to file the sixth amended complaint saying in the course of that, 'In view of the Court's recent ruling, the plaintiff is asking leave of Court to file her sixth amended complaint at law, wherein the plaintiff has attempted to cure the pleading defects upon which the Court based its ruling.'\n \n \n 42\n \"Now, the sixth one asserted no claims under that statute [Consumer Products Safety Act], and therefore, apart from other matters, I would find it improper to seek to reintroduce that kind of claim at the trial after it had been out of the case for three and a half years. That is really not an appropriate basis for bringing the case to issue on that type of a claim.\"\n \n \n 43\n The record discloses that count V of the fifth amended complaint, which introduced plaintiff's theory under the Consumer Products Safety Act into the case, was dismissed at a status hearing held March 2, 1979:\n \n \n 44\n \"For the reasons stated in open court, defendant Ashland's motion to dismiss Count 5 of the Amended Complaint is granted.\" R. at 171.\n \n \n 45\n The sixth amended complaint contains no mention of this claim.\n \n \n 46\n \"It is well established that an amended complaint ordinarily supersedes the original and renders it of no legal effect.\" International Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir.1977), cert. denied, 434 U.S. 1014, 98 S.Ct. 730, 54 L.Ed.2d 758 (1978); see LaBatt v. Twomey, 513 F.2d 641, 651 (7th Cir.1975).\n \n \n 47\n Thus, as the trial court ruled, the theory of recovery asserted in count V of the fifth amended complaint was not before the jury.\n \n \n 48\n There being no error in the judgment of the district court, it is affirmed.\n \n \n \n *\n The Honorable Edward R. Neaher, Senior District Judge for the Eastern District of New York, is sitting by designation\n \n \n 1\n The parties do not dispute that the product was not safe for tar removal and that Ashland had no involvement in the preparation of the label which Yenkin copied\n \n \n 2\n The chemical properties of lacquer thinners were discussed by plaintiff's expert witness. Their exact nature is not germane to this appeal because the parties do not dispute that the lacquer thinner at issue was not safe for use as a cleaning agent in the home\n \n \n 3\n Alternatively, defendant argues that Century's label constitutes a substantial change in the lacquer thinner by a third party. While we would agree that Century's label was arguably a significant cause of the accident, the label did not alter the dangerousness of the lacquer thinner as a tar stain remover. The gravamen of the defense appears to be an alteration in the product itself as occurred in Gasidel v. Federal Press Co., 78 Ill.App.3d 222, 33 Ill.Dec. 517, 521, 396 N.E.2d 1241, 1245, and Karabatsos v. Spivey Co., 49 Ill.App.3d 317, 7 Ill.Dec. 158, 160-61, 364 N.E.2d 319, 322-23\n \n \n ",
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| Seventh Circuit | Court of Appeals for the Seventh Circuit | F | USA, Federal |
1,278,601 | Dykman, Lundsten and Higginbotham | 2005-03-17 | false | state-v-zimmermann | Zimmermann | State v. Zimmermann | null | null | null | null | null | null | null | null | null | null | null | null | 0 | Published | null | null | [
"695 N.W.2d 903"
]
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"opinion_text": "\nState of Wisconsin, Plaintiff-Respondent,\nv.\nJerome M. Zimmermann, Defendant-Appellant.\nNo. 04-1612-CR.\nCourt of Appeals of Wisconsin.\nMarch 17, 2005.\nBefore Dykman, Lundsten and Higginbotham, JJ.\n¶1 PER CURIAM.\nJerome Zimmermann appeals judgments convicting him of three felonies and a misdemeanor, and an order denying postconviction relief. The convictions resulted from Zimmermann's guilty pleas to the charges. The dispositive issue is whether the State breached its agreement to recommend probation in exchange for Zimmermann's pleas. We conclude that no breach occurred, and therefore affirm.\n¶2 In addition to the agreement on sentencing, in exchange for the plea the State dismissed eight other charges and all repeater allegations. At sentencing, the prosecutor recommended probation, as agreed. However, Zimmermann contends that the following comments by the prosecutor breached the plea agreement by undermining that recommendation:\n[AMY FOREHAND, the prosecutor:] I looked at the character of the offender and, quite frankly, the P.S.I. does not show much of anything positive about his character. It outlines a significant criminal history back to 1972, which is the year I was born, so 32 years of criminal history by Mr. [Zimmermann], and it appears the only time he is not committing crimes is when he's incarcerated.\nIn the past his compliance on probation has been poor at best. In the narrative outlines several violations that he committed on previous probation periods including picking up new crimes while on probation. According to the P.S.I., in addition[] to his criminal troubles he is a deadbeat dead [sic].\n....\nI also believe that when asked of the seriousness of these offenses that it seems to be a general pattern of conduct for the defendant. He's already been convicted for and sentenced to prison for theft by contractor once before. Well here we're dismissing and reading in that charge. The conduct that was described in the P.S.I. regarding that incident [is] very similar to the two incidents that we're here today on.\n....\n... All these charges show a history of this type of behavior by the defendant which makes these offenses, I believe, to be even more serious in nature.\n... I do want to believe that people can be changed, that with the right intervention, the right help, they can change their ways; however, after reading the P.S.I., I really do not have any hope that rehabilitation is possible for the defendant. I believe he always has been a con artist and always will be and it appears the public is only safe when the defendant is incarcerated.\n¶3 The prosecutor's alleged breach became an issue when the trial court sentenced Zimmermann to prison, including six years of initial confinement. In postconviction proceedings, Zimmermann raised the issue by way of an ineffective-assistance-of-counsel claim, because he believed that trial counsel did not adequately preserve the issue. The trial court concluded that there was no breach and therefore no prejudice from counsel's performance and denied postconviction relief.\n¶4 The defendant has a constitutional right to enforcement of a negotiated plea agreement. State v. Williams, 2002 WI 1, ¶37, 249 Wis. 2d 492, 637 N.W.2d 733. Consequently, a defendant may be entitled to resentencing if the State materially and substantially breaches the agreement. Id., ¶38. A material and substantial breach is one that defeats the benefit for which the defendant bargained. Id. When the State agrees to recommend a particular sentence, the prosecutor may not undermine that agreement by covertly implying that a more severe sentence is warranted than that recommended. Id., ¶42.\n¶5 Whether the prosecutor's conduct constitutes a breach of the plea agreement is a question of law, which we decide independently of the circuit court. Id., ¶5. To evaluate the prosecutor's allegedly prejudicial remarks, we must examine the entire sentencing proceeding. Id., ¶46.\n¶6 Viewed as a whole, the prosecutor's remarks did not undermine the plea agreement and therefore did not breach it. After the comments quoted above, which clearly present an unfavorable view of Zimmermann, the prosecutor recommended probation because it would at least give the principal victim a chance at restitution. The prosecutor stated:\nIf he was sent to prison, while there's some work opportunities in prison, they pay very little, 50 cents to a dollar an hour the last I heard. That even if money was coming in, this would be coming in trickling for the defendant, I mean for the victims, and my thought and my rationale is that probation and conditional time may be the best tool available to try to get to them quicker, faster any money that we may have in front of us, and my thought was is that with probation for several years he'll be under supervision to make sure he can't go out and work on his own, and if he is having these screw ups and he's not paying his restitution, he can always be revoked and sent to prison at that time because if he's proving himself not to accomplish that I would hope with being on probation he still would be facing a significant amount of jail come resentencing on revocation. So that is my rationale for why I recommended [what] I did.\n(Emphasis added.) Thus, the prosecutor provided not only a persuasive reason to place Zimmermann on probation, but in view of Zimmermann's record the only plausible grounds to do so. The presentence investigation report listed at least thirteen criminal convictions dating back many years.[1] The resulting punishments included two prison terms, one revoked probation, and one extended probation. The author of the presentence report noted Zimmermann's overall poor performance on probation and parole, and added the following comment:\nWhat is the most disturbing is the high level of criminality, anti-social behavior, and lack of remorse for [Zimmermann's] victims. He continues to manipulate and exploit people for his own monetary gain. He has been very secretive and unwilling to come forward regarding what he has done with this money he stole from his victims. It appears he has paid off his court traffic fines and child support arrearages with this money, as this agent verified through CCAP. Given his continual pattern of theft by contractor and worthless checks, the public will remain to be [sic] at risk while he is on the streets.\n¶7 In sum, while the prosecutor presented unfavorable facts about Zimmermann, and certainly facts that would justify a prison sentence, she also provided the only sensible reason to place Zimmermann on probation.\nBy the Court. Judgments and order affirmed.\nNOTES\n[1] The report actually lists seventeen proceedings resulting in judgment. The charge and disposition listed in four of them suggest they might have been ordinance violation cases.\n\n",
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| Court of Appeals of Wisconsin | Court of Appeals of Wisconsin | SA | Wisconsin, WI |
2,322,632 | Archibald, Dufresne, Pomeroy, Weatherbee, Web-Ber, Wernick | 1973-01-26 | false | state-v-tibbetts | Tibbetts | State v. Tibbetts | STATE of Maine v. Vance G. TIBBETTS | John L. Merrill, Asst. County Atty., Skowhegan, for plaintiff., Grossman, Faber & Miller, P.A. by Edward B. Miller, Rockland, for defendant. | null | null | null | null | null | null | null | null | null | null | 20 | Published | null | <parties id="b929-4">
STATE of Maine v. Vance G. TIBBETTS.
</parties><br><court id="b929-6">
Supreme Judicial Court of Maine.
</court><br><decisiondate id="b929-7">
Jan. 26, 1973.
</decisiondate><attorneys id="A3U">
<span citation-index="1" class="star-pagination" label="884">
*884
</span>
John L. Merrill, Asst. County Atty., Skowhegan, for plaintiff.
</attorneys><attorneys id="A8T">
Grossman, Faber & Miller, P.A. by Edward B. Miller, Rockland, for defendant.
</attorneys><judges id="AAL">
Before DUFRESNE, C. J., and WEB-BER, WEATHERBEE, WERNICK and ARCHIBALD, JJ.
</judges> | [
"299 A.2d 883"
]
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"opinion_text": "\n299 A.2d 883 (1973)\nSTATE of Maine\nv.\nVance G. TIBBETTS.\nSupreme Judicial Court of Maine.\nJanuary 26, 1973.\n*884 John L. Merrill, Asst. County Atty., Skowhegan, for plaintiff.\nGrossman, Faber & Miller, P.A. by Edward B. Miller, Rockland, for defendant.\nBefore DUFRESNE, C. J., and WEBBER, WEATHERBEE, WERNICK and ARCHIBALD, JJ.\nARCHIBALD, Justice.\nThis is an appeal by the defendant following a conviction for breaking, entering and larceny in the nighttime. 17 M.R.S.A. § 2103.\nThe appellant and one Patrick Eagan were separately indicted and, because the facts were identical, the two indictments were consolidated for trial. The propriety of this consolidation was originally challenged but that issue was not raised on appeal.\nThe appellant, in his statement of points on appeal, assigned eleven alleged errors. However, only six of these were urged as a basis for sustaining the appeal and we consider the others to have been waived. The appellant's brief states the issues in the following language:\n\"1. The Court erred in refusing to grant a motion for a mistrial based upon the County Attorney's contact with a juror during trial.\n2. The Court erred in allowing testimony in reference to the possible stealing of a motor vehicle, such testimony being prejudicial to the Appellant.\n3. The Court erred in refusing to grant a motion for a mistrial based upon the testimony of Linda Murray.\n4. The verdict is contrary to the weight of the evidence and not supported by substantial evidence.\n5. The Court erred in refusing to grant a motion for a mistrial predicated upon the County Attorney's closing statements to the jury.\n6. The Court erred in charging the jury.\"\nWe will consider these points in that order.\n\nPoint 1\nThe jury was not sequestered but the record clearly demonstrates periodic admonitions by the Justice presiding which, if complied with, would preserve the integrity of the jury from exterior influence during the course of the trial. During one of the noon recesses the County Attorney was seated at a table in a local restaurant, engaging in some general conversation with a friend. He belatedly realized that one of the jurors was seated at this same table but, beyond a very general reference to the trial, none of the conversation related to the pending proceedings. The County Attorney made an immediate report of the *885 episode to the presiding Justice. The juror involved was summoned into chambers, admonished that he was under oath, and carefully examined by the Justice in order to determine whether any prejudice resulted from this inadvertent contact with the County Attorney. At this hearing the appellant was present, as was his counsel, and the Justice reached the conclusion that no prejudice had resulted from these facts.\nThe rule seems clear that while an inference of prejudice may arise from a conversation between a juror and an unauthorized person, it may be rebutted by clear and convincing proof produced by the State. The presiding Justice has discretion in ruling on this issue. State v. Duguay, 158 Me. 61, 178 A.2d 129 (1962). There is no reason why this rule should not apply to contact between a prosecuting attorney and a member of the jury. Stover v. District of Columbia, D.C.Mun.App., 32 A.2d 536 (1942). The record shows no abuse of judicial discretion.\n\nPoint 2\nAlthough the indictment alleged only the burglarious larceny of a checkwriter, the State introduced evidence from which the jury could find that a red and black Chevrolet car was likewise stolen. On the several occasions when this motor vehicle was mentioned by the State's witnesses, the appellant registered an objection premised upon the philosophy that he was not charged with the larceny of a motor vehicle and, therefore, the evidence was not only irrelevant but highly prejudicial.\nThe chief witness for the State (Linda Murray) had testified that Mr. Tibbetts was motivated by a desire to leave the State and go to Florida. The jury could believe from her testimony that shortly before the crime was committed a Pontiac automobile which was being used by the appellant and Patrick Eagan became inoperable.\nThe testimony of Carl E. Peterson, the owner of the burglarized building known as Peterson's Auto Body Shop, clearly indicated that the Chevrolet car, the checkwriter, and a checkbook were missing from this structure. The owner had inspected the building at approximately 9:00 p. m. on February 7 and found everything secure. At 7:30 a. m. on February 8 the break was discovered. The Chevrolet car was located before daylight on February 8, abandoned near the New Hampshire line in the town of Gilead, approximately one hundred miles westerly of Skowhegan.\nIt is clear to us that this evidence was properly admitted. It was relevant and material not only as direct proof that the crime was committed in the nighttime, but also to show the intent and purpose underlying the illegal entry. State v. Wyman, 270 A.2d 460 (Me.1970); State v. Smith, 277 A.2d 481 (Me.1971); State v. Sanborn, 157 Me. 424, 173 A.2d 854 (1961).\n\nPoint 3\nLinda Murray quoted the appellant as saying that his wife \"had a warrant out\" for his arrest. The type of warrant that the appellant referred to was not described, but it supplied the reason underlying the appellant's desire to leave the State of Maine. As such, this testimony was clearly relevant to indicate a motive for the commission of the crime alleged. No citation of authority is needed to support the admissibility of such evidence.\n\nPoint 4\nAssuming (as we must) that the jury believed the testimony of Linda Murray, the verdict is supported by the evidence. The Justice below was entirely correct in refusing to grant a motion for a judgment of acquittal.\nMrs. Murray testified that on the evening in question she met the defendant and Patrick Eagan and accompanied them to a *886 trailer in Skowhegan, where the Pontiac car in which they were riding became inoperable. She then stated that the appellant and Eagan left the trailer, returning some time later driving a red and black Chevrolet automobile, and having with them a checkwriter and a checkbook. She described Tibbetts and Eagan as making out numerous checks with the use of the checkwriter, which imprinted the name of the payor, \"Peterson's Auto Body Shop,\" this being the structure allegedly broken and entered by the defendant. She further testified that they left this trailer in the Chevrolet, taking with them the checkwriter and checkbook, picked up another young lady (Rebecca Michaud) and drove to the New Hampshire line where the car was abandoned.\nIn the early hours of the following morning the police discovered the abandoned vehicle, and it was identified as belonging to Mr. Peterson. During a search of the snow covered area two days later, the checkwriter was likewise found and subsequently identified by Mr. Peterson as having been taken from his building on the evening in question. A search of the vehicle also disclosed ten checks imprinted with a checkwriter and identified by Mrs. Murray as being those checks written in the trailer by the appellant before leaving Skowhegan.\nThe State also offered the testimony of Linda Murray's husband who, while an inmate of the Somerset County Jail, talked with the appellant and Eagan. Although his testimony was somewhat ambivalent,[1] the jury could have inferred from it that both Tibbetts and Eagan admitted stealing the automobile and the checkwriter.\nAdopting the legal proposition that \"the possession of stolen goods subsequent to the theft creates inference of guilt, not only of larceny . . . but also of the breaking and entering when larceny is a part of such greater crime,\" there was ample evidence to support the verdict of the jury. State v. Saba, 139 Me. 153, 158, 27 A.2d 813, 816 (1942); State v. Poulin, 277 A.2d 493 (Me.1971); State v. Gove, 289 A.2d 679 (Me.1972).\n\nPoint 5\nThe appellant did not testify. In his closing argument defense counsel argued strongly that the State should have produced additional witnesses, particularly Rebecca Michaud. In rebuttal the County Attorney made the following statements to the jury:\n\"Now I also want to submit this to you. Mr. MacMichael [defense attorney] has made much of the power and authority of the State to investigate, and the lack of witnesses here. Just let me tell you this, Ladies and Gentlemen, he has just as much power . . . to obtain each and every witness that he wants or needs, or they need or want, as the State does. So, if he's got any questions as to why certain witnesses weren't here, it's his own fault, because he could have gotten them here as well as we.\nAnd who, after all, Ladies and Gentlemen, knows what takes place at the scene of a crime? Probably those that have committed the crime, if you find that these two defendants did so do, know more about it than anyone else. Even the investigators. But that's a fact which you must find.\"\nIf the County Attorney had terminated his rebuttal argument with the first quoted paragraph, there could be no objection. *887 However, his use of the final four sentences raises the serious question of whether an impermissible reference was made to the fact that the appellant, by not becoming a witness, had exercised the privilege guaranteed him by the Fifth Amendment of the United States Constitution and secured to a defendant in Maine by Article 1 § 6 of the Maine Constitution,[2] as implemented in 15 M.R.S.A. § 1315.[3] If we decide the County Attorney used constitutionally impermissible language, we must also determine if such use constituted harmless error.\nSince in his charge the presiding Justice made clear the rights of the appellant and the duty of the jury to disregard his election not to be a witness, we might conclude that the issue here was settled by the decision in State v. Mottram, 158 Me. 325, 184 A.2d 225 (1962). Mottram would appear to hold that an ambiguous comment by a county attorney could be rendered harmless through an appropriate jury instruction. However, this case was decided in 1962 prior to several decisions of the United States Supreme Court, which made applicable to the States more stringent rules on the enforcement of Fifth Amendment rights than were then recognized.\nIn 1964 Malloy v. Hogan, 378 U.S. 1, 10, 84 S. Ct. 1489, 1495, 12 L. Ed. 2d 653, through the medium of the Fourteenth Amendment, made Fifth Amendment rights obligatory upon the States, to be enforced \"according to the same standards that protect those personal rights against federal encroachment.\"\nFollowing Malloy, the United States Supreme Court applied federal standards in striking down a California statute allowing comment on the failure of a criminal defendant to become a witness. It considered the statute to be \"in substance a rule of evidence,\" adopted the holding of Malloy applying federal standards to state court proceedings, and concluded that\n\"the Fifth Amendment, in its direct application to the Federal Government and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt.\"\nGriffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1229, 1233, 14 L. Ed. 2d 106 (1965).\nMalloy and Griffin lead inevitably to the conclusion that, although both the Maine Constitution (art. 1, § 6) and the Statute (15 M.R.S.A. § 1315) provide a criminal defendant with the protection afforded by the Fifth Amendment, the standards by which this right is enforced must meet minimum federal criteria. We must, therefore, delineate within constitutionally acceptable limits a definition of the expression \"impermissible comment.\" Having done this, our next task will be to determine, assuming a comment to be impermissible, the standards under which, if ever, it may be deemed harmless.\nInitially, it is obvious that a direct, unambiguous and specific statement is prohibited. Such was the case in Griffin, supra, for example. Likewise, an argument that the \"defendant sat in court, heard the testimony . . . and did not take the stand to deny it,\" was considered unjustified under the Maine Statute (now 15 M. *888 R.S.A. § 1315), the intent of the Statute being to \"entirely exclude from their [the juries'] consideration the fact that the defendant did not elect to testify. . . .\" State v. Banks, 78 Me. 490, 492, 7 A. 269, 270 (1886)[4] (Emphasis supplied.)\nAlthough speaking of instruction given a jury (not the comment of a county attorney), the Maine Court pointed out in State v. Shannon, 135 Me. 325, 329, 196 A. 636, 637-638 (1938), that a defendant is afforded \"affirmative protection\" by the Statute and, as a right, this must be stated to the jury in \"unequivocal language.\" A fortiori, it seems to us, it becomes the affirmative duty of a prosecutor to refrain from the use of equivocal or ambiguous language in argument.\nLanguage that \"singles out\" the defendant as the absent witness who might rebut the prosecution's evidence is constitutionally impermissible. See Thompson v. State, 41 Ala.App. 353, 132 So. 2d 386 (1961). This, of course, is particularly true if the defendant is the only witness who could have contradicted the evidence. Desmond v. United States, 345 F.2d 225 (1st Cir. 1965).\nWe conclude, therefore, that precedent and the Maine Statute, as well as the Maine and United States Constitutions, prohibit either direct or equivocal prosecutorial comment on the defendant's failure to testify. Such a constitutionally impermissible comment will necessarily result in the granting of a mistrial unless under appropriate standards the comment can be deemed harmless error. It, therefore, becomes necessary to consider the standard by which harmless error in the context here under discussion may be judged.\nIn Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967) the Supreme Court held that all trial errors of constitutional dimension do not automatically call for reversal, but the Court concluded that if there is a reasonable possibility that the error might have contributed to the conviction it could not be called harmless. See Fahy v. Connecticut, 375 U.S. 85, 84 S. Ct. 229, 11 L. Ed. 2d 171 (1963). Chapman placed the burden squarely on the prosecution to prove beyond a reasonable doubt the harmlessness of such a federal constitutional error.\nThe Chapman concept was later refined by adding a three pronged test by which harmless error could be determined. These tests, which we construe to be minimal constitutional standards now binding on the States, are:\n1. Is the comment extensive?\n2. Is the defendant's silence stressed to the jury as a basis of conviction?\n3. Is there evidence that could have supported acquittal?\nAnderson v. Nelson, 390 U.S. 523, 88 S. Ct. 1133, 20 L. Ed. 2d 81 (1968).\nSeven days after Anderson was decided the Supreme Court, in a Per Curiam opinion, ruled that when a state jury is asked to convict a defendant on circumstantial evidence, and a constitutionally impermissible comment is made in argument, such comment cannot be considered harmless unless it is shown beyond a reasonable doubt that it did not contribute to the resultant conviction. Fontaine v. California, 390 U.S. 593, 88 S. Ct. 1229, 20 L. Ed. 2d 154 (1968).\nWe deem that the time has now come for Maine to formulate standards which we feel are constitutionally required and made obligatory upon us under the Fifth Amendment through the medium of the Fourteenth Amendment. These will guide the prosecutor and remove the trial judge from the ad hoc position he now occupies *889 when faced with an objectionable comment. We adopt the following rule.\nImpermissible prosecutorial comment can never be deemed harmless error as a matter of law under either of two circumstances:\n1. A direct, non-ambiguous and unequivocal prosecutorial comment on the failure of a criminal defendant to become a witness.\n2. An indirect prosecutorial comment which, without equivocation or ambiguity, suggests that a jury must accept as true the State's evidence because it is undenied by a criminal defendant as a witness.[5]\nIf a prosecutorial comment is made that falls into neither of the preceding classifications the State must demonstrate beyond a reasonable doubt, if the comment is to be deemed harmless, that the record contains no evidence, either direct or circumstantial, which would rationally support acquittal. Otherwise stated, it is only when it can be demonstrated beyond a reasonable doubt that the evidence in defense would not support acquittal by a rational and objective jury that ambiguous prosecutorial comment can be considered harmless error.[6]\nWe must now apply this rule to the facts before us.\nRecalling that the State was unable, by any direct evidence, to place the appellant at Peterson's Auto Body Shop, or attribute to him any of the physical acts required to break, enter and commit larceny in this building through the observation of any witness, it is obvious that the case must be based upon circumstantial evidence, all flowing from the circumstance of his being found in possession of goods proved to have been stolen. State v. Poulin, supra. The appellant's possession of these goods was described by only one witness, namely, Linda Murray, thus placing in issue her veracity, since at least two defense witnesses testified otherwise. Additionally, there was evidence from which a jury could conclude, even though it might believe Mrs. Murray's testimony on possession, that other persons actually committed the crime charged and subsequently delivered the stolen checkwriter and automobile to the appellant and Mr. Eagan. A defense witness testified that he transported Tibbetts and Eagan to the business area in Skowhegan (some 3½ miles from the Peterson Auto Body Shop) and did not see them again until they returned to his trailer. However, he also testified that in the interim he gave one Ray Bickford and one Merton Goodridge a ride to \"Lakewood,\" which would require going directly past the Peterson Auto Body Shop. When the appellant, Eagan and Mrs. Murray left in the stolen vehicle to get Miss Michaud, they took Merton Goodridge with them.\nIn deciding that a rational and objective jury could have returned a \"not guilty\" verdict, we can adopt the language of the presiding Justice when he ruled on motions for acquittal: \"I think, Gentlemen, it is a square edged Jury issue.\"\nHow is the comment of the County Attorney to be classified?\nWhile we do not construe the language of the County Attorney to be a direct and *890 unequivocal comment on the appellant's failure to become a witness, it could suggest to the jury that the silence of the appellant was an aid to the State's proof of the corpus delicti. The comment, in literal terms, focused directly on the \"scene of [the] crime,\" and might have been understood by the jury to suggest that although this appellant would \"know more about\" what happened at the Peterson Auto Body Shop than \"even the investigators,\" he still chose, by his silence, not to give the jury the benefit of this knowledge.\nBy adopting this analysis of the comment, and since no rational and objective jury could fail to find that the State had proved beyond any doubt the essential elements of breaking, entering and larceny by some person, we might, by applying the test adopted, conclude that the ambiguous comment was harmless beyond a reasonable doubt.\nOn the other hand, fairness requires us to read the words in the context in which they were used. The comment was made in rebuttal to the argument of appellant's counsel, which we have read carefully. This argument tacitly assumed that the State had proved the corpus delicti. It concentrated on attacking the veracity of both Keith and Linda Murray and stressed the failure of the State to produce several witnesses, including Rebecca Michaud, who were \"in that trailer\" and would have equivalent knowledge of the facts.[7]\nIt is completely plausible to assume that the jury related the County Attorney's comments, in the context of the argument, to the events occurring at the trailer. The comment could well convey this thought, recalling that the appellant had not been a witness: \"And who, after all . . . [knew] what took place [in that trailer]? Probably those [who did the things that Linda Murray described,] if you find these two defendants did so do, [they] know more about it than anyone else. Even the investigators.\" In this sense, the inference that Linda Murray's testimony should be accepted because the appellant did not become a witness and deny it, is definitely suggested. Thus construed, the comment points at the Achilles tendon of the State's case, namely, the veracity of Linda Murray, upon whose testimony the State necessarily depends to place the appellant in possession of the stolen property. See State v. Saba, State v. Poulin, and State v. Gove, supra. We cannot disregard as harmless an argument which suggests that the proof of an essential element of the State's case is aided by the silence of the appellant. See United States v. Metcalf, 435 F.2d 754 (9th Cir. 1970).\nOur analysis leads to the conclusion that the language used by the County Attorney may fairly be construed as an ambiguous comment suggesting that the absence of the appellant as a witness aided the State in establishing the identity of the *891 person criminally responsible for the crime charged. Since there was a rational basis for a verdict of acquittal on the failure of the State to prove this identity, constitutional error was committed which mandates the granting of a new trial. The Justice below was in error when he failed to grant the appellant's motion for a mistrial.[8]\n\nPoint 6\nWe detect no error in the instructions of the Justice below to the jury, but because a new trial must be had in this case, no useful purpose would be served in any analysis of the instructions.\nThe entry is:\nAppeal sustained. New trial ordered.\nPOMEROY, J., did not sit.\nNOTES\n[1] \"Q. [on direct examination] And did they tell you . . . who stole the car?\n\nA. Yes, sir.\nQ. What did they say?\nA. They did, sir.\"\n\"Q. [on cross examination] Is that what they were telling you, they were charged with having stolen a car and a checkwriter?\nA. You might as well say that, sir.\" (Emphasis supplied.)\n[2] \"Section 6. In all criminal prosecutions, the accused shall have a right to be heard by himself and his counsel, or either, at his election;\n\n. . . . .\n. . . He shall not be compelled to furnish or give evidence against himself, nor be deprived of his life, liberty, property or privileges, but by judgment of his peers or the law of the land.\"\n[3] \"In all criminal trials, the accused shall, at his own request but not otherwise, be a competent witness. . . . The fact that he does not testify in his own behalf shall not be taken as evidence of his guilt. The husband or wife of the accused is a competent witness.\"\n[4] State v. Banks has been cited with approval in State v. Landry, 85 Me. 95, 26 A. 998 (1892); State v. Shannon, 135 Me. 325, 196 A. 636 (1938); State v. Mottram, 158 Me. 325, 184 A.2d 225 (1962); State v. Gillis, 160 Me. 126, 199 A.2d 192 (1964); and State v. White, 285 A.2d 832 (Me.1972).\n[5] We have not included the words \"extensive\" or \"stressed,\" as suggested in Anderson, since we prefer to assume that either a direct comment or an unambiguous indirect comment should be thus construed. It is the import of the comment, not the number of words used, nor the emphasis with which they are spoken, that is determinative. The trial judge is thus relieved from making a subjective judgment of the impact of such comment on the minds of the jury.\n[6] See the dissenting opinion of Ely, J., in Wilson v. Anderson, 379 F.2d 330 (9th Cir. 1967), in which he commented that he \"could not say, in any case wherein there is evidence . . . which might have supported acquittal, that the prosecutor's unconstitutional comments were `harmless beyond a reasonable doubt.'\" Anderson v. Nelson, supra, in reversing Wilson, ostensibly adopted this position.\n[7] \"Who would have known what went on in the trailer except the people who were in that trailer that night? Most of them, anyway, probably one or two friends, so these are the only people available, and out of them, the State sought to pick one, Linda Murray, to testify as to the events that took place in that trailer, and subsequently to indicate what happened.\n\nNow I am more impressed by who the State didn't put on than by who the State put on. Out of all the witnesses that could have been called as to what went on in that trailer, and the State certainly, when we are talking about investigating a case and having police officers and detectives and State Police Officers and detectives, some of who testified here, the State has at its disposal all of the investigative and the resources available to it to investigate a criminal matter, and out of all of the people who were in that trailer and who knew what went on in that trailer and the people who knew what went on subsequently, because the group left together, the State sought to put one woman on the stand, Linda Murray. . . .\n. . . Where was Rebecca Michaud's testimony? And where was the testimony of all of the other people who were in that trailer, who knew something about what went on in that trailer, and whether or not a checkwriter was brought in or not? The State selected one.\"\n[8] The appellant acted seasonably to protect this point on appeal. Although objection was not entered at the conclusion of the comment in the presence of the jury, counsel did immediately and in chambers make known to the Court his position and moved for a mistrial. We can readily understand why counsel might be reluctant to make an overt objection in the presence of the jury, which might well serve to emphasize the argument of the County Attorney.\n\n",
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| Supreme Judicial Court of Maine | Supreme Judicial Court of Maine | S | Maine, ME |
1,075,176 | Judge Holly Kirby Lillard | 1999-09-01 | false | michael-king-v-tfe-inc | null | Michael King v. TFE, Inc. | Michael KING, Plaintiff/Appellant, v. TFE, INC., Defendant/Appellee | John W. Palmer, The Palmer Law Firm, Dyersburg, TN, for Appellant., Kim B. Kettering, Hardin, Parkes & Kettering, PLLC, Columbia, TN, for Ap-pellee. | null | null | null | null | null | null | null | Application for Permission to Appeal Denied by Supreme Court Feb. 7, 2000 | null | null | 0 | Published | null | <parties id="b479-11">
Michael KING, Plaintiff/Appellant, v. TFE, INC., Defendant/Appellee.
</parties><br><court id="b479-14">
Court of Appeals of Tennessee, at Nashville.
</court><br><decisiondate id="b479-15">
Sept. 1, 1999.
</decisiondate><br><otherdate id="b479-16">
Application for Permission to Appeal Denied by Supreme Court Feb. 7, 2000
</otherdate><br><attorneys id="b480-10">
<span citation-index="1" class="star-pagination" label="458">
*458
</span>
John W. Palmer, The Palmer Law Firm, Dyersburg, TN, for Appellant.
</attorneys><br><attorneys id="b480-11">
Kim B. Kettering, Hardin, Parkes & Kettering, PLLC, Columbia, TN, for Ap-pellee.
</attorneys> | [
"15 S.W.3d 457"
]
| [
{
"author_str": "Highers",
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"opinion_text": " IN THE COURT OF APPEALS OF TENNESSEE\n AT NASHVILLE\n\n\nMICHAEL KING,\n\n Plaintiff/Appellant,\n )\n )\n ) Maury Circuit No. 6503\n FILED\n ) September 1, 1999\nVS. ) Appeal No. 01A01-9711-CV-00624\n ) Cecil Crowson, Jr.\nTFE, INC., ) Appellate Court Clerk\n )\n Defendant/Appellee. )\n\n\n APPEAL FROM THE CIRCUIT COURT OF MAURY COUNTY\n AT COLUMBIA, TENNESSEE\n THE HONORABLE JIM T. HAMILTON, JUDGE\n\n\n\n\nJOHN W. PALMER\nTHE PALMER LAW FIRM\nDyersburg, Tennessee\nAttorney for Appellant\n\n\n\nKIM B. KETTERING\nHARDIN, PARKES & KETTERING, PLLC\nColumbia, Tennessee\nAttorney for Appellee\n\n\n\n\nAFFIRMED\n\n\n\n\n ALAN E. HIGHERS, J.\n\n\n\nCONCUR:\n\nW. FRANK CRAWFORD, P.J., W.S.\n\nHOLLY KIRBY LILLARD, J.\n In this action filed against TFE, Inc. (hereafter “TFE”), Michael King appeals the trial\n\fcourt’s grant of summary judgment to TFE as related to King’s claims for breach of an\n\nalleged employment contract. The trial court granted TFE’s motion for summary judgment\n\nbased on the court’s conclusion that an employee handbook distributed by TFE did not\n\nconstitute an employment contract. For the reasons hereafter stated, we affirm the trial\n\ncourt’s grant of summary judgment.\n\n\n\n FACTS AND PROCEDURAL HISTORY\n\n\n\n King began working for TFE as a truck driver on November 5, 1988, at which point\n\nTFE provided to King a copy of an employee manual, which was titled “TFE Professional\n\nStaffing.” During King’s employment with TFE, this employee manual was occasionally\n\nupdated either by replacement pages or by supplemental additional pages that were sent\n\nto King. At least as of the time period relevant to this lawsuit, this manual was divided into\n\nthree separate sections: (1) Employee Handbook; (2) Schedule Wages & Fringes; and (3)\n\nEmployee Notices.\n\n\n\n On March 25, 1993, King was involved in a traffic accident while driving a truck (the\n\ntractor only) during the course of his employment. Apparently, this accident occurred when\n\na city garbage truck pulled out in front of King, at which time King attempted to avoid the\n\ntruck by going around its rear, but lost control and ran off the road. During King’s\n\ndeposition, he described the events surrounding this accident as follows:\n\n Q What was the weather like?\n A It was sprinkling rain, drizzle.\n ....\n Q Okay. You didn’t have a trailer hooked onto the tractor part.\n A Yes, I was bob-tailing.\n Q Just tell me what happened, or what -- you’re coming down the\n road,what caused the wreck to happen?\n A The City garbage truck pulled out in front of me.\n ....\n Q And when this vehicle pulled out or whatever, what did you do?\n A I applied my brakes. He proceed to back off the road. I proceed to\n let off the brakes. He stopped, clearing the path where I could\n accelerate. When I accelerated again, that’s all I -- I done my\n knowledge -- to avoid the wreck any way possible, and I swayed to go in\n behind him. As soon as the truck hit the shoulder of the road where I could\n hopefully get part of the garbage truck or go completely around him, the\n shoulder gave way. The next thing I know, the truck was upside down.\n\nAfter this traffic accident, King was taken to a hospital. Thereafter, during the course of\n\n 2\n\fmedical treatment and recovery, King was paid temporary workers’ compensation disability\n\nbenefits up through February 25, 1994, at which point he was released by his treating\n\nphysician to return to work. On Monday, March 7, 1994, King spoke with Richard Gilbert,\n\nwho was King’s regional manager and driver supervisor, on the telephone. During this\n\nconversation, Gilbert informed King that King’s employment was being terminated, and he\n\nreferenced and drew King’s attention to a provision within the employee manual which\n\nexplained that TFE employees could be “subject to discharge” for a “major chargeable”\n\naccident. The next day, on March 8, 1994, Gilbert provided to the Tennessee Department\n\nof Employment Security (and to King, who applied for and ultimately drew unemployment\n\ncompensation) a copy of a “separation notice,” which explained that King’s “discharge” was\n\nbased upon his involvement in a “major preventable accident.” On this same date, Gilbert\n\nsent to King a letter that explained the following:\n\n As discussed, TFE, Inc., has carefully reviewed all relevant data concerning\n your March 25, 1993, accident, and found that it meets the definition of a\n major preventable (chargeable) accident.\n\n For this reason, TFE, Inc., elects to terminate your employment under the\n provisions of Rule 1A, as published in your copy of the Driver Handbook.\n\n In closing, please be advised that any request to have the Drivers’\n Committee review this matter, and to thereafter make a recommendation as\n to whether the company should reconsider this action, should be submitted\n in accordance with procedures also contained within the Driver Handbook.\n\nThereafter, King, through his attorney, requested that a driver committee hearing be held\n\nto review King’s termination. This driver committee, which is the initial avenue for review\n\nof disciplinary action according to the “Employee Handbook” under the heading “Rules and\n\nRegulations” and under the sub-heading “Appeal of Company Disciplinary Action,” is a\n\ncommittee that is essentially comprised of popularly elected driver employees. This driver\n\ncommittee hearing took place on April 30, 1994, at which time the driver committee opined\n\nand “recommended” that King’s accident be deemed “non-preventable,” and that King’s\n\nemployment should not have been terminated. After the April 30, 1994 driver committee\n\nhearing, King never heard from or spoke with TFE again about his employment, and his\n\nemployment was not reinstated.\n\n\n\n On March 6, 1995, King commenced this action against TFE, alleging that King’s\n\nemployment with TFE was wrongfully terminated in violation of contractually binding terms\n\n 3\n\fand conditions set forth in TFE’s employment manual, and alleging that TFE terminated\n\nKing’s employment in retaliation of King’s workers’ compensation claim. On March 10,\n\n1997, TFE filed a motion for summary judgment, which came to be heard by the trial court\n\non August 21, 1997. In addition to the pleadings, depositions from both King and Gilbert\n\nwere filed with the trial court for its consideration on TFE’s motion for summary judgment.\n\nThereafter, on October 3, 1997, the trial court entered an order that granted TFE’s motion\n\nfor summary judgment. In this order, the trial court explained, among other things, that the\n\nprovisions within TFE’s employee manual that related to disciplinary procedures did not\n\ncontain any specific language indicating a guarantee or binding commitment from TFE.1\n\n\n1. The provisions that are found within TFE’s employee manual that pertain to disciplinary procedures, as\nrelated to the instant case, are as follows:\n\n DISCIPLINARY PROCEDURES\n\n [T]o insure [sic] that we protect and preserve the excellent reputation we have established,\n management has developed a guideline of violations of professional performance standards\n and reasonable disciplinary penalties that may be imposed upon proven violations of these\n standards.\n ....\n The follow ing R ules and R egu lation s app ly to all employees who have completed their 90-day\n familiarization period.\n\n The Company retains th e rig ht to m odify , add to or e limina te wo rk ru les at any t ime a s it\n deems nec essary .\n\n RULES AND REGULATIONS\n\n The following rules and regulations and the penalties to be charged for violations of the same\n are set forth as guidelines so that all employees may know what is expected of them in the\n general condu ct of the C omp any’s bus iness. This list of violations is not inclusive and the\n com pan y ma y add to or m odify it at an y time .\n\n Protests of discipline must be filed within ten (10) days after notice is received by employees.\n\n 1. ACCIDENTS:\n\n A. Major Chargeable as defined by DOT 1st offense-Subject to discharge\n ....\n 8. FAMILIARIZATION PERIOD EMPLOYEES:\n\n During the first ninety (90) days of employment new employees may be discharged\n at management’s discretion without regard to the above procedures.\n\n 9. APPEAL OF COMPANY DISCIPLINARY ACTION:\n\n [T]he drive r com mitte e is you r ave nue of ap pea l for an y complaint you may have\n regarding your treatment. The m anagem ent of TFE, Inc., will give every\n consideration to their recommendations and findings.\n ....\n Employees objecting to the disciplinary action taken will have ten (10) days to file a\n notice to that effect in writing with TFE, Inc. In the absence of such protest, such\n actio n sha ll be de em ed fin al.\n\n INVOLUNTARY TERMINATION\n\n In the event an em ployee is invo lunta rily terminated from employment with TFE, Inc., and the\n employee exhausts the company’s internal appeal provisions, at the employees request TFE\n will consider submitting the matter to an Arbitrator for a final and binding remedy. The\n request for arbitr atio n should be made by the employee . . . within ten (10) days of the\n emp loyee being notified of ter mina tion. . . . .\n\n 4\n\f On appeal, King has asserted no error regarding the trial court’s entry of summary\n\njudgment as related to King’s retaliatory discharge claim. The sole issue that he has\n\npresented for this Court’s consideration is as follows:\n\n Does a factual dispute exist that creates a genuine issue for trial as to\n whether the employment of [King] was terminated by . . . TFE, Inc. in\n violation of contractually binding provisions of the “TFE Professional Staffing”\n manual?\n\n\n ANALYSIS\n\n\n\n As in prior similar cases, we begin our analysis of this issue with the well-established\n\nrule “that a contract for employment for an indefinite term is a contract at will and can be\n\nterminated by either party at any time without cause.” Rose v. Tipton County Public Works\n\nDept., 953 S.W.2d 690, 691 (Tenn. App. 1997); Bringle v. Methodist Hosp., 701 S.W.2d\n\n622, 625 (Tenn. App. 1985). “Because Tennessee continues to adhere to the foregoing\n\n‘employee-at-will’ rule, a presumption arises in this state that an employee is an employee\n\nat will.” Rose, 953 S.W.2d at 691-92 (citing Davis v. Connecticut Gen. Life Ins. Co., 743\n\nF. Supp. 1273, 1280 (M.D. Tenn. 1990). During King’s deposition in the instant case, he\n\nwas asked, “with regard to TFE, were you under -- is it your position or your contention that\n\nyou had -- you were under some contract for a term with them?” King’s direct response\n\nto this specific question was “no.” King essentially contends, however, that his “at-will”\n\nstatus was changed by TFE’s promulgation and issuance of its employee manual. In this\n\nregard, this Court has previously stated and summarized the following:\n\n Even in the absence of a definite durational term, an employment contract\n still may exist with regard to other terms of employment. Williams v.\n Maremont Corp., 776 S.W.2d 78, 80 (Tenn. App. 1988); accord Hooks v.\n Gibson, 842 S.W.2d 625, 628 (Tenn. App. 1992). In this regard, this Court\n has recognized that an employee handbook can become a part of an\n employment contract. Smith v. Morris, 778 S.W.2d 857, 858 (Tenn. App.\n 1988) (citing Hamby v. Genesco, Inc., 627 S.W.2d 373 (Tenn. App. 1981));\n accord Davis v. Connecticut Gen. Life Ins. Co., 743 F. Supp. 1273, 1278\n (M.D. Tenn. 1990). In order to constitute a contract, however, the handbook\n must contain specific language showing the employer's intent to be bound\n by the handbook's provisions. Smith v. Morris, 778 S.W.2d at 858. Unless\n an employee handbook contains such guarantees or binding commitments,\n the handbook will not constitute an employment contract. Whittaker v.\n Care-More, Inc., 621 S.W.2d 395, 397 (Tenn. App. 1981). As stated by one\n court, in order for an employee handbook to be considered part of an\n employment contract, \"the language used must be phrased in binding terms,\n interpreted in the context of the entire handbook, and read in conjunction\n with any other relevant material, such as an employment application.\"\n\n\n 5\n\f Claiborne v. Frito-Lay, Inc., 718 F. Supp. 1319, 1321 (E.D. Tenn. 1989).\n\nRose, 953 S.W.2d at 692. While we have previously recognized that “an employee\n\nhandbook” can become a part of an employment contract in some cases, our concern in\n\nthe instant case is limited to the specific provisions set forth within TFE’s employee manual\n\nthat govern TFE’s “Disciplinary Procedures,” “Rules and Regulations,” and “Involuntary\n\nTermination.”2 Our review of these provisions reveals that the pertinent language clearly\n\nreflects TFE’s intent not to be bound either by particular procedures described therein, or\n\nby the “recommendation” of the driver committee.3 Under the heading “Disciplinary\n\nProcedures,” TFE’s manual explains that its management “has developed a guideline of\n\nviolations of professional performance standards and reasonable disciplinary penalties.”\n\nTFE thereafter states, “The Company retains the right to modify, add to or eliminate work\n\nrules at any time as it deems necessary.” An employer’s reservation of a unilateral right\n\nto modify such provisions within an employee handbook generally precludes such\n\nprovisions from being considered part of the parties’ employment contract. See Rose, 953\n\nS.W.2d at 693-94 (citing Claiborne v. Frito-Lay, Inc., 718 F. Supp. 1319, 1321 (E.D. Tenn.\n\n1989)). Under the heading “Rules and Regulations,” TFE’s manual again explains that the\n\n“rules and regulations and the penalties to be charged for violations of the same are set\n\nforth as guidelines, and that the “list of violations is not inclusive and the company may add\n\nto or modify it at any time.” Under the rules and regulations sub-heading “Appeal of\n\nCompany Disciplinary Action,” TFE’s manual explains that “the driver committee is your\n\navenue of appeal,” but that the management of TFE will only “give every consideration to\n\n\n\n2. See supra note 1.\n\n3. We note, however, that King’s brief places considerable reliance upon one particular provision within the\nemployee manual, which states:\n\n Following the rules set forth in the American Trucking Association’s safety awards program,\n TFE will make the initial determinations regarding an accident’s status. A driver may appeal\n a finding of “p reventa ble” to one of the ex isting driver s afety com mittees . Either TFE or the\n driver may appeal a driver committee decision to ATA’s panel of safety experts whose\n decision shall be final and binding.\n\nW e need not resolve whether this provision reflects an intent to be bound, however, because this particular\nprovision does not per tain to TFE’s “disciplinary procedures,” “rules and regulations,” and “involuntary\ntermin ations.” Inste ad, th is pro vision pertains to and is a s ub-hea ding of T FE’s “S afety Awa rd Prog ram ,”\nwhich, as re vised , is se t forth within the second part of TFE’s employee manual, titled “Schedule Wages &\nFringes .” This “S afety Awa rd Prog ram ” provides emp loymen t benefits relatin g to a drive r’s pay scale, which\nincreases over time and/or mileage traveled in the absence of the driver having a preventable accident. “A\nprev enta ble accident will not cost a driver increases previously earned under this program. However, a driver\nhaving a pre venta ble ac cide nt will serve a penalty period during which the driver cannot progress to a higher\nlevel.”\n\n 6\n\ftheir recommendations and findings.” Lastly, under the heading “Involuntary Termination,”\n\nTFE simply states that it will simply “consider submitting the matter to an Arbitrator” upon\n\nan employee’s request after submission to the driver committee. Therefore, as we have\n\nstated above, the language of the pertinent provisions within TFE’s employee manual\n\nclearly reflects TFE’s intent not to be bound either by particular procedures described\n\ntherein, or by the “recommendation” of the driver committee. Moreover, as these\n\nprovisions within TFE’s employee manual must be “read in conjunction with any other\n\nrelevant material,” we find it relevant to further note that King signed a document upon\n\nreceipt of TFE’s employee manual that acknowledged, among other things, that the\n\nmanual in no way created or established an employment contract.\n\n\n\n\n CONCLUSION\n\n\n\n Accordingly, we hereby affirm the trial court’s grant of summary judgment to TFE.\n\nCosts are taxed to Michael King, for which execution may issue if necessary.\n\n\n\n\n HIGHERS, J.\n\n\n\nCONCUR:\n\n\n\n\n 7\n\fCRAWFORD, P.J., W.S.\n\n\n\n\nLILLARD, J.\n\n\n\n\n 8\n\f",
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| Court of Appeals of Tennessee | Court of Appeals of Tennessee | SA | Tennessee, TN |
465,064 | Edwards, Keith, Krupansky | 1986-02-13 | false | united-states-v-bernard-murray | null | United States v. Bernard Murray | UNITED STATES of America, Plaintiff-Appellee, v. Bernard MURRAY, Defendant-Appellant | Thomas A. Howard and Laurel Stuart, argued, Detroit, Mich., for defendant-appellant., Joel M. Sherer, U.S. Atty., Janice Terbush and Gary Maveal, argued, Detroit, Mich., for plaintiff-appellee. | null | null | null | null | null | null | null | Argued Oct. 29, 1985. | null | null | 35 | Published | null | <parties id="b280-3">
UNITED STATES of America, Plaintiff-Appellee, v. Bernard MURRAY, Defendant-Appellant.
</parties><br><docketnumber id="b280-7">
Nos. 83-1050, 84-1140.
</docketnumber><br><court id="b280-8">
United States Court of Appeals, Sixth Circuit.
</court><br><otherdate id="b280-10">
Argued Oct. 29, 1985.
</otherdate><br><decisiondate id="b280-11">
Decided Feb. 13, 1986.
</decisiondate><br><attorneys id="b280-19">
Thomas A. Howard and Laurel Stuart, argued, Detroit, Mich., for defendant-appellant.
</attorneys><br><attorneys id="b280-20">
Joel M. Sherer, U.S. Atty., Janice Terbush and Gary Maveal, argued, Detroit, Mich., for plaintiff-appellee.
</attorneys><br><judges id="b280-21">
Before KEITH and KRUPANSKY, Circuit Judges, and EDWARDS, Senior Circuit Judge.
</judges> | [
"784 F.2d 188"
]
| [
{
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"opinion_text": "784 F.2d 188\n 20 Fed. R. Serv. 186\n UNITED STATES of America, Plaintiff-Appellee,v.Bernard MURRAY, Defendant-Appellant.\n Nos. 83-1050, 84-1140.\n United States Court of Appeals,Sixth Circuit.\n Argued Oct. 29, 1985.Decided Feb. 13, 1986.\n \n Thomas A. Howard and Laurel Stuart, argued, Detroit, Mich., for defendant-appellant.\n Joel M. Sherer, U.S. Atty., Janice Terbush and Gary Maveal, argued, Detroit, Mich., for plaintiff-appellee.\n Before KEITH and KRUPANSKY, Circuit Judges, and EDWARDS, Senior Circuit Judge.\n GEORGE CLIFTON EDWARDS, Jr., Senior Circuit Judge.\n \n \n 1\n Appellant Murray was indicted on five counts of mail fraud as a result of what a jury found to be fraudulent insurance claims. A jury found defendant guilty on all five counts and the District Judge sentenced Murray to a four-year probationary term and fined him $5,000. The facts available to the jury in this case on which it found defendant guilty were such as to constitute support for the conviction.\n \n \n 2\n Nonetheless, issues of substance are present in this appeal. The first concerns whether or not a prosecution witness's mention of the words \"polygraph examination\" before he was stopped by objection (promptly sustained by the court) constituted reversible error. The second concerns whether there was reversible error in the court's charge.\n \n \n 3\n As to the first of these asserted errors, mention of a polygraph test introduced serious error into this record. This Circuit holds any introduction of polygraph material to be error. United States v. Fife, 573 F.2d 369 (6th Cir.1976), cert. denied, 430 U.S. 933, 97 S. Ct. 1555, 51 L. Ed. 2d 777 (1977). Our examination of this record does not allow us to agree with the government that the error was harmless beyond reasonable doubt. So far as can be determined from this record, the comment was introduced deliberately by an experienced FBI Agent. It was, of course, objected to immediately, and, out of the presence of the jury, the District Judge heard and sustained the objection and agreed to and did charge the jury to disregard it. Such an instruction, however, is very close to an instruction to unring a bell. We do not hold that under any and all circumstances in every case where the words \"polygraph examination\" are mentioned, a grant of a new trial would be required. The proofs of guilt in this case are not, however, so overwhelming as to allow us to say the error complained of here was harmless beyond reasonable doubt.\n \n \n 4\n If we did have doubt concerning whether the first issue we have discussed mandated vacating the judgment and sentence and granting a new trial, we do not think that we would be able to escape the conclusion that the errors in the charge (when added to the first error) were together sufficiently serious to represent reversible error. The most serious of defendant's contentions about the charge are the following:\n \n \n 5\n The defendant is at present presumed innocent. The Government has the burden of proving him guilty beyond a reasonable doubt and if it fails to do so, you must acquit him. It is not required that the Government prove guilt beyond a reasonable doubt, all possible doubt. The test is one of reasonable doubt.\n \n \n 6\n * * *\n \n \n 7\n * * *\n \n \n 8\n .... It is sufficient if the evidence in the case establishes beyond a reasonable doubt that the offense was committed on a date reasonably near the date alleged. There are, generally speaking, two types of evidence from which a jury may properly find the truth as to the facts of a case. One is direct evidence such as this testimony of an eye witness. The other is indirect or circumstantial evidence, the proof of a chain of circumstances pointing to the existence or nonexistence of certain facts. As a general rule, the law makes no distinction between direct and circumstantial evidence, but simply requires that the jury find the facts in accordance with the preponderance of the evidence in the case, both direct and circumstantial. (emphasis added)\n \n \n 9\n T., September 14, 1982, pp. 133-34; pp. 139-40.\n \n \n 10\n We recognize, of course, that the standard and proper charge, \"The burden is all upon the prosecution to prove guilt beyond a reasonable doubt,\" was given and reiterated a number of times. Nonetheless, there is no way to be certain that the jurors did not have fixed in their minds the clearly erroneous instructions which we have quoted and underlined above.\n \n \n 11\n The government has evidence pointing toward Mr. Murray's guilt which may well convince another jury, not subject to the errors we have cited, that they should render the same verdict of guilty as did the jury in our instant case. We do not, however, find from this record available to us as a reviewing court the conviction that the errors recited above were harmless in the sense that they \"did not influence the jury\" or had \"but very slight effect.\"\n \n \n 12\n We believe that this standard for our review was established long ago in Kotteakos v. United States, 328 U.S. 750, 764-65, 66 S. Ct. 1239, 1248, 90 L. Ed. 1557 (1946), where the Supreme Court said:\n \n \n 13\n If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and judgment should stand, except perhaps where departure is from a constitutional norm or a specific command from Congress.... But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phrase affected by the error. It is rather, even so, whether the error itself had substantial influence.\n \n \n 14\n The judgment of the District Court is reversed and the case is remanded for new trial.\n \n \n 15\n KRUPANSKY, Circuit Judge, concurring in the result.\n \n \n 16\n While I concur in the result the majority reaches in this case in remanding the matter for a new trial, I am constrained to disagree with the majority on the significance of the polygraph remark by the FBI agent at trial. Rather, I would reverse solely on the basis of the trial judge's erroneous instructions to the jury.\n \n \n 17\n On appeal, appellant Bernard Murray challenged his jury conviction on five counts of mail fraud pursuant to 18 U.S.C. Sec. 1341. The indictment charged that appellant had committed mail fraud arising out of false insurance claims he had filed with the United States Aviation Insurance Group (USAIG) wherein he alleged the loss of expensive equipment from his aircraft, first by theft and next by fire.\n \n \n 18\n A brief review of the evidence presented at trial is appropriate. Subsequent to purchasing a Piper Arrow aircraft from Pontiac Piper, Inc., in September 1979, appellant directed Michigan Aviation, Inc., to install into the craft two radios, an audio panel, a transponder, and distance measuring equipment (DME). The serial numbers of the equipment were recorded by the seller, Pontiac Piper. Appellant insured the plane and equipment with USAIG through an intermediary agency.\n \n \n 19\n In March of 1980, appellant reported the theft of several items of the avionic equipment from his Piper Arrow aircraft. An investigating officer prepared a report from information supplied by appellant, which information incorporated the description and some serial numbers of the allegedly stolen equipment. On April 15, 1980, appellant obtained an estimate of the value of the stolen equipment from Michigan Aviation, which he forwarded to USAIG. USAIG thereafter honored appellant's claim in the amount of $9,719.03, which included payment for a stolen DME and audio panel.\n \n \n 20\n The replacement equipment purchased from Michigan Aviation was actually installed on April 3, 1980, antedating the estimate. The bill for the replacement equipment purchased from Michigan Aviation totalled $6,949.50. Neither a DME nor an audio panel were purchased at that time, although the price of these items was included in appellant's estimate dispatched to USAIG. A DME was, however, installed on that date by Michigan Aviation, but appellant himself supplied the equipment. No audio panel was installed because the aircraft already had one on the date the replacement equipment was installed.1 The employee of Michigan Aviation who installed the DME on April 3, 1980 observed that the plate on which the instrument serial number was stamped had been broken off at one end so as to eliminate the last digit of the number. The DME was the only item installed that was obviously not a new instrument.\n \n \n 21\n Appellant's aircraft was subsequently destroyed by fire on October 12, 1980. The Michigan State Police Crime Laboratory determined that gasoline detected at the scene was not aviation fuel but was similar to fuel used in motor vehicles. A partially burned newspaper near the site of the conflagration appeared to have been used to ignite the fire. All interior equipment was destroyed beyond repair. The locked aircraft contained no DME or fuel computer; charred surfaces on the inside of the slots accommodating that equipment indicated that the instruments had been removed prior to the fire. An investigation disclosed that the aircraft had been flown on October 8, 1980, four days before the fire, and that the instruments were intact and operational at the time of the flight.\n \n \n 22\n Appellant submitted a repair estimate of the burned equipment to Pontiac Piper which forwarded the completed estimate to USAIG. The estimate presented to USAIG by appellant through Pontiac Piper fixed repair costs at approximately $55,000. USAIG made payment to appellant in the amount of $68,513.10, the full value of the aircraft.\n \n \n 23\n FBI Agent William Sievers conducted an investigation of the fire with appellant's permission. He testified that the two radios that had been burned in the fire had the same serial numbers as the two originally installed by appellant in the aircraft at the time of purchase and which had been reported stolen in March of 1980. Additionally, the two legible digits of the serial number of the audio panel which had suffered fire damage corresponded to those of the equipment originally installed and reported stolen from the aircraft during March of 1980. Also, the four legible digits of the five digit serial number of the transponder which was also damaged during the fire corresponded to the original equipment reported stolen from the aircraft in March of 1980. In a subsequent interview with Sievers, appellant explained that he had removed the fuel computer to repair it prior to the fire. He denied any knowledge of the other missing equipment, specifically the DME.\n \n \n 24\n Appellant thereafter purchased a new Piper Dakota airplane in November of 1980 from another dealer, Grosse Ile Flying Service. He directed another company, Beacon Avionics, Inc., to wire the aircraft for a DME, although none was installed by Beacon Avionics, Inc., at that time inasmuch as appellant indicated that he already owned a DME which he would install. Another pilot stated that the aircraft was equipped with a DME in December of 1980 and January of 1981 when he flew it. Appellant explained that he had installed the DME.\n \n \n 25\n A later search of the Piper Dakota aircraft in January of 1981 produced a DME. The serial number plate of the DME was broken off at one end and the last digit of the number was missing corresponding to the DME serial number plate described by Michigan Aviation's employee on April 3, 1980 when he installed such an instrument in appellant's Piper Arrow aircraft subsequent to appellant's theft claim filed in March of 1980. Laboratory analysis disclosed that the serial number had been altered. In a subsequent interview, appellant claimed that he had purchased this DME for $1,200 cash from an individual named Lewandowski. He explained that he had broken off the end of the identification plate, including the final digit of the serial number, and had pencilled the serial number onto the tag because it was becoming dogearred.\n \n \n 26\n The evidence taken in its entirety was sufficient to sustain a jury conviction when construed most favorably on behalf of the Government. See Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 469, 86 L. Ed. 680 (1942); United States v. Orrico, 599 F.2d 113, 116-17 (6th Cir.1979). Moreover, contrary to appellant's contentions herein, this circuit has recently reaffirmed its position \"that our court on appeal will reverse a judgment for insufficiency of evidence only if this judgment is not supported by substantial and competent evidence upon the record as a whole, and that this rule applies whether the evidence is direct or wholly circumstantial. It is not necessary that circumstantial evidence remove every reasonable hypothesis except that of guilt.\" See United States v. Stone, 748 F.2d 361, 363 (6th Cir.1984).2\n \n \n 27\n On appeal appellant charged error arising from, first, the testimony of Agent Sievers wherein he made a passing reference to his request of the appellant to submit to a polygraph examination, and, second, from confusing instructions submitted to the jury.\n \n \n 28\n FBI Agent Sievers in the course of testifying inadvertently employed the phrase \"polygraph examination\" by relating the date on which a certain conversation had occurred with an event which was fixed in his memory.3 Defense counsel's immediate objection was sustained by the trial judge. After denying appellant's motion for mistrial, the trial judge admonished the jury to disregard the testimony with a cautionary instruction.4\n \n \n 29\n The majority opinion correctly concludes that inasmuch as the results of a polygraph examination are not competent evidence, no abuse of discretion occurs when a trial court excludes testimony that a polygraph test had been conducted. See United States v. Fife, 573 F.2d 369, 373 (6th Cir.1976), cert. denied, 430 U.S. 933, 97 S. Ct. 1555, 51 L. Ed. 2d 777 (1977). However, this court is not confronted with that issue in the case at bar. Rather, the issue joined herein is the effect upon the jury of Sievers' inadvertent reference to a request made of appellant to submit to a polygraph examination and whether such reference constituted reversible error. In my opinion the controversial testimony was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705 (1967). Appellant's contention that the FBI agent's statement was an intentional attempt to prejudice his case is unsupported in the record and derived solely from appellant's own speculation based on the fact that Sievers was an experienced law enforcement officer. In sum, since the remark was ambiguous, unprompted, and apparently inadvertent, and since the jury was immediately instructed to disregard it, and since the evidence against appellant was substantial, Siever's comment did not rise to the level of reversible error.5\n \n \n 30\n Appellant's second assignment of error concerning the jury instructions merits consideration. Appellant has directed this court's attention to two instances in the transcript wherein the jury instructions misstated the Government's reasonable doubt standard of proof. Initially, the instructions observed that it was \"not required that the Government prove guilt beyond a reasonable doubt, all possible doubt.\" Thereafter, in another section of the instruction, the court again misstated the Government's burden by instructing the jury that the law \"requires that the jury find the acts in accordance with the preponderance of the evidence in the case, both direct and circumstantial.\" (emphasis supplied).\n \n \n 31\n Individual jury instructions must be viewed in the context of the overall charge and may not be judged in artificial isolation. Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S. Ct. 396, 400, 38 L. Ed. 2d 368 (1973) (habeas review). Applying this standard of review to the matter at bar, it cannot be said with any degree of certainty that an ordinary layman would not have been confused by the patently erroneous and conflicting phrasings of the Government's burden of proof to such an extent as to substantially influence the jury's ultimate verdict. Accordingly, the court is constrained to reverse appellant's jury conviction on this ground. See Kotteakos v. United States, 328 U.S. 750, 764-65, 66 S. Ct. 1239, 1247-48, 90 L. Ed. 1557 (1946).\n \n \n 32\n Based on the foregoing, I concur in the majority's remand of the case for new trial. I write separately only to express my views that the witness' polygraph reference would not in itself have justified a reversal on this record.\n \n \n \n 1\n Appellant later explained that the audio panel had not in fact been stolen despite its presence on the USAIG claim application, but had been located under the seat after the insurance claim had been filed. Appellant justified his failure to report the discovery by rationalizing that the total damage to the aircraft, in reality, exceeded that which he had initially reported, consequently he was attempting to minimize his actual damages\n \n \n 2\n Appellant challenged on appeal, among other things, the sufficiency of the evidence to support the jury verdict\n \n \n 3\n The passage consisted of the following:\n Q. Did that occur on that particular day that he stopped by your office?\n A. No, when I asked him if he would submit to a polygraph examination--\n Mr. Howard [defense counsel]: Well, I'm going to object to that, your Honor.\n The Court: I will sustain it.\n \n \n 4\n The instruction stated:\n \"The jury will be instructed to completely wipe that statement out of your minds, ignore it completely.\"\n \n \n 5\n Appellant's related claims of governmental misconduct with respect to the obtaining of the testimony at trial of Michael Crabill, an employee at Michigan Aviation, Inc. and appellant's contention that the government's investigation of the case was one-sided are similarly without merit\n \n \n ",
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"opinion_text": "\nGEORGE CLIFTON EDWARDS, Jr., Senior Circuit Judge.\nAppellant Murray was indicted on five counts of mail fraud as a result of what a jury found to be fraudulent insurance claims. A jury found defendant guilty on all five counts and the District Judge sentenced Murray to a four-year probationary term and fined him $5,000. The facts available to the jury in this case on which it found defendant guilty were such as to constitute support for the conviction.\nNonetheless, issues of substance are present in this appeal. The first concerns whether or not a prosecution witness’s mention of the words “polygraph examination” before he was stopped by objection (promptly sustained by the court) constituted reversible error. The second concerns whether there was reversible error in the court’s charge.\nAs to the first of these asserted errors, mention of a polygraph test introduced serious error into this record. This Circuit holds any introduction of polygraph material to be error. United States v. Fife, 573 F.2d 369 (6th Cir.1976), cert. denied, 430 U.S. 933, 97 S.Ct. 1555, 51 L.Ed.2d 777 (1977). Our examination of this record does not allow us to agree with the government that the error was harmless beyond reasonable doubt. So far as can be determined from this record, the comment was introduced deliberately by an experienced FBI Agent. It was, of course, objected to immediately, and, out of the presence of the jury, the District Judge heard and sustained the objection and *189agreed to and did charge the jury to disregard it. Such an instruction, however, is very close to an instruction to unring a bell. We do not hold that under any and all circumstances in every case where the words “polygraph examination”, are mentioned, a grant of a new trial would be required. The proofs of guilt in this case are not, however, so overwhelming as to allow us to say the error complained of here was harmless beyond reasonable doubt.\nIf we did have doubt concerning whether the first issue we have discussed mandated vacating the judgment and sentence and granting a new trial, we do not think that we would be able to escape the conclusion that the errors in the charge (when added to the first error) were together sufficiently serious to represent reversible error. The most serious of defendant’s contentions about the charge are the following:\nThe defendant is at present presumed innocent. The Government has the burden of proving him guilty beyond a reasonable doubt and if it fails to do so, you must acquit him. It is not required that the Government prove guilt beyond a reasonable doubt, all possible doubt. The test is one of reasonable doubt.\nsjs * % * *\n____It is sufficient if the evidence in the case establishes beyond a reasonable doubt that the offense was committed on a date reasonably near the date alleged. There are, generally speaking, two types of evidence from which a jury may properly find the truth as to the facts of a case. One is direct evidence such as this testimony of an eye witness. The other is indirect or circumstantial evidence, the proof of a chain of circumstances pointing to the existence or nonexistence of certain facts. As a general rule, the law makes no distinction between direct and circumstantial evidence, but simply requires that the jury find the facts in accordance with the preponderance of the evidence in the case, both direct and circumstantial, (emphasis added)\nT., September 14, 1982, pp. 133-34; pp. 139-40.\nWe recognize, of course, that the standard and proper charge, “The burden is all upon the prosecution to prove guilt beyond a reasonable doubt,” was given and reiterated a number of times. Nonetheless, there is no way to be certain that the jurors did not have fixed in their minds the clearly erroneous instructions which we have quoted and underlined above.\nThe government has evidence pointing toward Mr. Murray’s guilt which may well convince another jury, not subject to the errors we have cited, that they should render the same verdict of guilty as did the jury in our instant case. We do not, however, find from this record available to us as a reviewing court the conviction that the errors recited above were harmless in the sense that they “did not influence the jury” or had “but very slight effect.”\nWe believe that this standard for our review was established long ago in Kotteakos v. United States, 328 U.S. 750, 764-65, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946), where the Supreme Court said:\nIf, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and judgment should stand, except perhaps where departure is from a constitutional norm or a specific command from Congress____ But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phrase affected by the error. It is rather, even so, whether the error itself had substantial influence.\nThe judgment of the District Court is reversed and the case is remanded for new trial.\n",
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"opinion_text": "\n*190KRUPANSKY, Circuit Judge,\nconcurring . in the result.\nWhile I concur in the result the majority reaches in this case in remanding the matter for a new trial, I am constrained to disagree with the majority on the significance of the polygraph remark by the FBI agent at trial. Rather, I would reverse solely on the basis of the trial judge’s erroneous instructions to the jury.\nOn appeal, appellant Bernard Murray challenged his jury conviction on five counts of mail fraud pursuant to 18 U.S.C. § 1341. The indictment charged that appellant had committed mail fraud arising out of false insurance claims he had filed with the United States Aviation Insurance Group (USAIG) wherein he alleged the loss of expensive equipment from his aircraft, first by theft and next by fire.\nA brief review of the evidence presented at trial is appropriate. Subsequent to purchasing a Piper Arrow aircraft from Pontiac Piper, Inc., in September 1979, appellant directed Michigan Aviation, Inc., to install into the craft two radios, an audio panel, a transponder, and distance measuring equipment (DME). The serial numbers of the equipment were recorded by the seller, Pontiac Piper. Appellant insured the plane and equipment with USAIG through an intermediary agency.\nIn March of 1980, appellant reported the theft of several items of the avionic equipment from his Piper Arrow aircraft. An investigating officer prepared a report from information supplied by appellant, which information incorporated the description and some serial numbers of the allegedly stolen equipment. On April 15, 1980, appellant obtained an estimate of the value of the stolen equipment from Michigan Aviation, which he forwarded to USAIG. USAIG thereafter honored appellant’s claim in the amount of $9,719.03, which included payment for a stolen DME and audio panel.\nThe replacement equipment purchased from Michigan Aviation was actually installed on April 3, 1980, antedating the estimate. The bill for the replacement equipment purchased from Michigan Aviation totalled $6,949.50. Neither a DME nor an audio panel were purchased at that time, although the price of these items was included in appellant’s estimate dispatched to USAIG. A DME was, however, installed on that date by Michigan Aviation, but appellant himself supplied the equipment. No audio panel was installed because the aircraft already had one on the date the replacement equipment was installed.1 The employee of Michigan Aviation who installed the DME on April 3, 1980 observed that the plate on which the instrument serial number was stamped had been broken off at one end so as to eliminate the last digit of the number. The DME was the only item installed that was obviously not a new instrument.\nAppellant’s aircraft was subsequently destroyed by fire on October 12, 1980. The Michigan State Police Crime Laboratory determined that gasoline detected at the scene was not aviation fuel but was similar to fuel used in motor vehicles. A partially burned newspaper near the site of the conflagration appeared to have been used to ignite the fire. All interior equipment was destroyed beyond repair. The locked aircraft contained no DME or fuel computer; charred surfaces on the inside of the slots accommodating that equipment indicated that the instruments had been removed pri- or to the fire. An investigation disclosed that the aircraft had been flown on October 8, 1980, four days before the fire, and that the instruments were intact and operational at the time of the flight.\nAppellant submitted a repair estimate of the burned equipment to Pontiac. Piper which forwarded the completed estimate to *191USAIG. The estimate presented to USAIG by appellant through Pontiac Piper fixed repair costs at approximately $55,000. USAIG made payment to appellant in the amount of $68,513.10, the full value of the aircraft.\nFBI Agent William Sievers conducted an investigation of the fire with appellant’s permission. He testified that the two radios that had been burned in the fire had the same serial numbers as the two originally installed by appellant in the aircraft at the time of purchase and which had been reported stolen in March of 1980. Additionally, the two legible digits of the serial number of the audio panel which had suffered fire damage corresponded to those of the equipment originally installed and reported stolen from the aircraft during March of 1980. Also, the four legible digits of the five digit serial number of the transponder which was also damaged during the fire corresponded to the original equipment reported stolen from the aircraft in March of 1980. In a subsequent interview with Sievers, appellant explained that he had removed the fuel computer to repair it prior to the fire. He denied any knowledge of the other missing equipment, specifically the DME.\nAppellant thereafter purchased a new Piper Dakota airplane in November of 1980 from another dealer, Grosse lie Flying Service. He directed another company, Beacon Avionics, Inc., to wire the aircraft for a DME, although none was installed by Beacon Avionics, Inc., at that time inasmuch as appellant indicated that he already owned a DME which he would install. Another pilot stated that the aircraft was equipped with a DME in December of 1980 and January of 1981 when he flew it. Appellant explained that he had installed the DME.\nA later search of the Piper Dakota aircraft in January of 1981 produced a DME. The serial number plate of the DME was broken off at one end and the last digit of the number was missing corresponding to the DME serial number plate described by Michigan Aviation’s employee on April 3, 1980 when he installed such an instrument in appellant’s Piper Arrow aircraft subsequent to appellant’s theft claim filed in March of 1980. Laboratory analysis disclosed that the serial number had been altered. In a subsequent interview, appellant claimed that he had. purchased this DME for $1,200 cash from an individual named Lewandowski. He explained that he had broken off the end of the identification plate, including the final digit of the serial number, and had pencilled the serial number onto the tag because it was becoming dogearred.\nThe evidence taken in its entirety was sufficient to sustain a jury conviction when construed most favorably on behalf of the Government. See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Orrico, 599 F.2d 113, 116-17 (6th Cir.1979). Moreover, contrary to appellant’s contentions herein, this circuit has recently reaffirmed its position “that our court on appeal will reverse a judgment for insufficiency of evidence only if this judgment is not supported by substantial and competent evidence upon the record as a whole, and that this rule applies whether the evidence is direct or wholly circumstantial. It is not necessary that circumstantial evidence remove every reasonable hypothesis except that of guilt.” See United States v. Stone, 748 F.2d 361, 363 (6th Cir.1984).2\nOn appeal appellant charged error arising from, first, the testimony of Agent Sievers wherein he made a passing reference to his request of the appellant to submit to a polygraph examination, and, second, from confusing instructions submitted to the jury.\nFBI Agent Sievers in the course of testifying inadvertently employed the phrase “polygraph examination” by relating the date on which a certain conversation had occurred with an event which was fixed in *192his memory.3 Defense counsel’s immediate objection was sustained by the trial judge. After denying appellant’s motion for mistrial, the trial judge admonished the jury to disregard the testimony with a cautionary instruction.4\nThe majority opinion correctly concludes that inasmuch as the results of a polygraph examination are not competent evidence, no abuse of discretion occurs when a trial court excludes testimony that a polygraph test had been conducted. See United States v. Fife, 573 F.2d 369, 373 (6th Cir. 1976), cert. denied, 430 U.S. 933, 97 S.Ct. 1555, 51 L.Ed.2d 777 (1977). However, this court is not confronted with that issue in the case at bar. Rather, the issue joined herein is the effect upon the jury of Sievers’ inadvertent reference to a request made of appellant to submit to a polygraph examination and whether such reference constituted reversible error. In my opinion the controversial testimony was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). Appellant’s contention that the FBI agent’s statement was an intentional attempt to prejudice his case is unsupported in the record and derived solely from appellant’s own speculation based on the fact that Sievers was an experienced law enforcement officer. In sum, since the remark was ambiguous, unprompted, and apparently inadvertent, and since the jury was immediately instructed to disregard it, and since the evidence against appellant was substantial, Siever’s comment did not rise to the level of reversible error.5\nAppellant’s second assignment of error concerning the jury instructions merits consideration. Appellant has directed this court’s attention to two instances in the transcript wherein the jury instructions misstated the Government’s reasonable doubt standard of proof. Initially, the instructions observed that it was “not required that the Government prove guilt beyond a reasonable doubt, all possible doubt.” Thereafter, in another section of the instruction, the court again misstated the Government’s burden by instructing the jury that the law “requires that the jury find the acts in accordance with the preponderance of the evidence in the case, both direct and circumstantial.” (emphasis supplied).\nIndividual jury instructions must be viewed in the context of the overall charge and may not be judged in artificial isolation. Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973) (habeas review). Applying this standard of review to the matter at bar, it cannot be said with any degree of certainty that an ordinary layman would not have been confused by the patently erroneous and conflicting phrasings of the Government’s burden of proof to such an extent as to substantially influence the jury’s ultimate verdict. Accordingly, the court is constrained to reverse appellant’s jury conviction on this ground. See Kotteakos v. United States, 328 U.S. 750, 764-65, 66 S.Ct. 1239, 1247-48, 90 L.Ed. 1557 (1946).\nBased on the foregoing, I concur in the majority’s remand of the case for new trial. I write separately only to express my views that the witness’ polygraph reference would not in itself have justified a reversal on this record.\n\n. Appellant later explained that the audio panel had not in fact been stolen despite its presence on the USAIG claim application, but had been located under the seat after the insurance claim had been filed. Appellant justified his failure to report the discovery by rationalizing that the total damage to the aircraft, in reality, exceeded that which he had initially reported, consequently he was attempting to minimize his actual damages.\n\n\n. Appellant challenged on appeal, among other things, the sufficiency of the evidence to support the jury verdict.\n\n\n. The passage consisted of the following:\nQ. Did that occur on that particular day that he stopped by your office?\nA. No, when I asked him if he would submit to a polygraph examination—\nMr. Howard [defense counsel]: Well, I’m going to object to that, your Honor.\nThe Court: I will sustain it.\n\n\n. The instruction stated:\n\"The jury will be instructed to completely wipe that statement out of your minds, ignore it completely.”\n\n\n. Appellant’s related claims of governmental misconduct with respect to the obtaining of the testimony at trial of Michael Crabill, an employee at Michigan Aviation, Inc. and appellant's contention that the government’s investigation of the case was one-sided are similarly without merit.\n\n",
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| Sixth Circuit | Court of Appeals for the Sixth Circuit | F | USA, Federal |
664,617 | Ginsburg, Hubert, Randolph, Will | 1994-03-18 | false | samuel-g-kooritzky-v-robert-b-reich-secretary-of-labor | null | Samuel G. Kooritzky v. Robert B. Reich, Secretary of Labor | Samuel G. KOORITZKY, Appellant, v. Robert B. REICH, Secretary of Labor, Appellee | Hugh Wade, Boston, MA, of the bar of the United States Court of Appeals for the First Circuit of Massachusetts, pro hac vice, by special leave of court, argued the cause for appellant. On the briefs was Samuel G. Kooritzky, Springfield, VA, Robert L. Shapiro, Assistant United States Attorney, Washington, DC, argued the cause for appellee. With him on the brief were Eric H. Holder, Jr., United States Attorney, John D. Bates and R. Craig Lawrence, Assistant United States Attorneys, Washington, DC., Denyse Sabagh, Washington, DC, was on the brief of amicus curiae American Immigration Lawyers Association. | null | null | null | null | null | null | null | Argued Dec. 13, 1993. | null | null | 36 | Published | null | <parties id="b1589-10">
Samuel G. KOORITZKY, Appellant, v. Robert B. REICH, Secretary of Labor, Appellee.
</parties><br><docketnumber id="b1589-13">
No. 92-5277.
</docketnumber><br><court id="b1589-14">
United States Court of Appeals, District of Columbia Circuit.
</court><br><otherdate id="b1589-15">
Argued Dec. 13, 1993.
</otherdate><br><decisiondate id="b1589-16">
Decided March 18, 1994.
</decisiondate><br><attorneys id="b1590-11">
<span citation-index="1" class="star-pagination" label="1510">
*1510
</span>
Hugh Wade, Boston, MA, of the bar of the United States Court of Appeals for the First Circuit of Massachusetts, pro hac vice, by special leave of court, argued the cause for appellant. On the briefs was Samuel G. Kooritzky, Springfield, VA
</attorneys><br><attorneys id="b1590-12">
Robert L. Shapiro, Assistant United States Attorney, Washington, DC, argued the cause for appellee. With him on the brief were Eric H. Holder, Jr., United States Attorney, John D. Bates and R. Craig Lawrence, Assistant United States Attorneys, Washington, DC.
</attorneys><br><attorneys id="b1590-14">
Denyse Sabagh, Washington, DC, was on the brief of amicus curiae American Immigration Lawyers Association.
</attorneys><br><judges id="b1590-15">
Before: GINSBURG and RANDOLPH, Circuit Judges, and HUBERT L. WILL,
<a class="footnote" href="#fn*" id="fn*_ref">
*
</a>
Senior District Judge.
</judges><div class="footnotes"><div class="footnote" id="fn*" label="*">
<a class="footnote" href="#fn*_ref">
*
</a>
<p id="b1590-13">
Of the United States District Court for the Northern District of Illinois, sitting by designation pursuant to 28 U.S.C. § 294(d).
</p>
</div></div> | [
"17 F.3d 1509",
"305 U.S. App. D.C. 156"
]
| [
{
"author_str": "Randolph",
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"type": "010combined",
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"author_id": null,
"opinion_text": "17 F.3d 1509\n 305 U.S.App.D.C. 156\n Samuel G. KOORITZKY, Appellant,v.Robert B. REICH, Secretary of Labor, Appellee.\n No. 92-5277.\n United States Court of Appeals,District of Columbia Circuit.\n Argued Dec. 13, 1993.Decided March 18, 1994.\n \n Appeal from the United States District Court for the District of Columbia (91cv3011).\n Hugh Wade, Boston, MA, of the bar of the United States Court of Appeals for the First Circuit of Massachusetts, pro hac vice, by special leave of court, argued the cause for appellant. On the briefs was Samuel G. Kooritzky, Springfield, VA.\n Robert L. Shapiro, Assistant United States Attorney, Washington, DC, argued the cause for appellee. With him on the brief were Eric H. Holder, Jr., United States Attorney, John D. Bates and R. Craig Lawrence, Assistant United States Attorneys, Washington, DC.\n Denyse Sabagh, Washington, DC, was on the brief of amicus curiae American Immigration Lawyers Association.\n Before: GINSBURG and RANDOLPH, Circuit Judges, and HUBERT L. WILL,* Senior District Judge.\n Opinion for the court filed by Circuit Judge RANDOLPH.\n RANDOLPH, Circuit Judge:\n \n \n 1\n United States employers wishing to hire alien workers must navigate a maze of statutory provisions and regulations administered by the Immigration and Naturalization Service and the Department of Labor. Samuel G. Kooritzky, an immigration lawyer and a prospective employer of an alien, filed an action to enjoin enforcement of one such regulation on the ground, among others, that the Department of Labor promulgated it without notice. The district court granted summary judgment in favor of the government and Kooritzky brought this appeal.\n \n \n 2\n * An alien seeking to emigrate from a foreign country to the United States may not legally enter without an immigrant visa issued by the United States Consul in his country. With exceptions not pertinent to this case, immigrant visas are subject to quotas. The Immigration Act of 1990 established initial annual immigration limits of 465,000 visas for family-sponsored immigrants, 140,000 visas for employment-based immigrants, and 55,000 visas for \"diversity\" immigrants. Pub.L. No. 101-649, tit. I, Sec. 101(a), 104 Stat. 4978 (1990), codified at 8 U.S.C. Sec. 1151. Two employment-based categories require, as a condition to the alien's obtaining an immigrant visa, that the alien not only present a petition approved by the Attorney General but also a labor certification issued by the Secretary of Labor. 8 U.S.C. Secs. 1153(b)(2) & (3), 1182(a)(5)(A) & (C).1\n \n \n 3\n A labor certification reflects the Secretary's determination that:\n \n \n 4\n (I) there are not sufficient workers who are able, willing, qualified ... and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and\n \n \n 5\n (II) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.\n \n \n 6\n 8 U.S.C. Sec. 1182(a)(5)(A)(i); see 20 C.F.R. Sec. 656.1(a)(1) & (2). For employers, obtaining a labor certification is the first step toward filling a job with an alien worker. The employer starts by completing an Application for Alien Employment Certification and filing it with the state employment service office.2 On the application, the employer provides the name of the particular alien the employer intends to employ; a description of the alien's qualifications and the job; and documentation of the employer's attempts to recruit American workers in compliance with Labor Department regulations. See 20 C.F.R. Sec. 656.21. According to appellant, processing the application may take from two months to two years, as the state agency seeks to determine that no American worker is available for the position.\n \n \n 7\n Within the preference categories, immigrant visas are issued on a first-come-first-served basis. An alien's place in line is determined by his or her \"priority date,\" that is, the date when the employer filed the application with the state agency. See 8 C.F.R. Sec. 204.5(d); 22 C.F.R. Secs. 42.53(a) & 42.42. When the state agency completes its investigation, the Labor Department reviews its report and the application. If satisfied that the statutory criteria have been met, the Department approves the application and issues the employer an Alien Employment Certification, or as it is commonly known, a labor certification. The certification is \"valid indefinitely.\" See 20 C.F.R. Sec. 656.30(a).\n \n \n 8\n The employer's next step is to submit the labor certification and a Petition for Immigrant Worker (Form I-140) to the Immigration and Naturalization Service. See 8 C.F.R. Sec. 204.5. If the Service approves the petition, it forwards it with the labor certification and the employer's priority date to the U.S. Consulate in the country from which the alien is being recruited. See id. Sec. 204.5(n)(1).3 Because of the heavy demand for the limited number of visas in the employment-based preference groups, the alien and his prospective employer often must wait several more years before the visa is issued. In the meantime the alien may become unable or unwilling to take the job. Rather than start all over again, employers naturally prefer to substitute another alien on the labor certification. Before Medellin v. Bustos, 854 F.2d 795 (5th Cir.1988), however, the Labor Department prohibited \"the substitution of one alien on a labor certification for another alien if more than six months [had] elapsed since the original date of certification.\" Id. at 797. Matters changed as a result of the Fifth Circuit's decision. Medellin held that the six-month limit on substitutions exceeded the Department's authority, in part because substituting one alien for another after six months could have no effect on the subject within the Department's regulatory ambit--the labor market. Thus, as things stood after Medellin, an employer could freely replace the original alien with another and still retain the priority date issued when the employer filed with the state employment agency.\n \n \n 9\n In 1991, in the wake of the 1990 Immigration Act's revisions of the immigration laws, the Department and the Service published separate notices of proposed rulemaking. The Service's proposed rule, 56 Fed.Reg. 30,703 (July 5, 1991), concerned new immigrant classifications and requirements established in the 1990 legislation. The Service also proposed amending regulations dealing with employment-based preferences so that the priority date would become the date on which the petition for classification of the alien is filed with the Service, rather than the date on which the employer files the application for labor certification with the state agency. See id. at 30,709.\n \n \n 10\n The Labor Department's proposed rule, 56 Fed.Reg. 32,244 (July 15, 1991), in its preamble, indicated that the Department would implement changes wrought by the 1990 Act and would make other technical modifications of its regulations. Id. at 32,245. In response to comments on its Advance Notice of Proposed Rule Making, 56 Fed.Reg. 11,705 (Mar. 20, 1991), and, apparently, in response to the Service's proposed rulemaking notice, the Department announced that it would not alter its existing rule that labor certifications were valid indefinitely, and that it would work closely with the Service to ensure that the Service's proposed change in the priority date system would apply only to applications filed after October 1, 1991. 56 Fed.Reg. at 32,246.\n \n \n 11\n On October 23, 1991, the Department promulgated what it called an \"interim final rule\" containing a significant new provision not mentioned in the notice of proposed rulemaking. See 56 Fed.Reg. 54,920 (1991). The new provision amended 20 C.F.R. Sec. 656.30(c)(2) to limit the validity of labor certifications to the alien named on the employer's application.4 See 56 Fed.Reg. at 54,930. This change eliminated the employer's freedom to substitute a new alien when the alien named in the application became unable or unwilling to accept the job. An employer in that predicament would have to begin anew; and the alien named in the new application would go to the end of the line for immigrant visas.\n \n \n 12\n The Department gave two explanations for ending substitution. It said first that it reached this decision after consulting the Service about its proposed change in the priority-date system; the Service indicated that if the Department would eliminate substitution, this would \"facilitate[ ]\" the Service's retaining its existing method of determining priority dates. 56 Fed.Reg. at 54,922.5 The Department also wrote that it had abolished substitution because of the \"innumerable operational problems\" this had caused the Service, including problems associated with a \"reputed secondary market involving the sale of labor certifications[;] the potential for abuse\"; unfairness to other aliens not benefiting from substitution and to American workers who might have become available for the job at the time of the substitution; and administrative burdens. 56 Fed.Reg. at 54,922, 54,926.\n \n \n 13\n In announcing the interim final rule and its effective date of November 22, 1991, the Department \"reopened\" the rulemaking comment period through November 30, 1991. 56 Fed.Reg. at 54,920. The Department received more than a hundred comments but it never responded to them and it has not promulgated a new rule.\n \n II\n \n 14\n One of Kooritzky's contentions, the only one we need consider because we agree with it, is that the Labor Department failed to comply with the notice and comment provisions of the Administrative Procedure Act, 5 U.S.C. Sec. 553(b) & (c). Agencies must include in their notice of proposed rulemaking \"either the terms or substance of the proposed rule or a description of the subjects and issues involved.\" 5 U.S.C. Sec. 553(b)(3). And they must give \"interested persons an opportunity to participate in the rulemaking through submission of written data, views, or arguments.\" 5 U.S.C. Sec. 553(c). The Labor Department did neither.\n \n \n 15\n The Department's notice of proposed rulemaking did not contain the terms of the no-substitution rule it later promulgated; it did not propose abolishing substitution; and it did not mention the issues involved in doing so. That is not, however, necessarily fatal. It is an elementary principle of rulemaking that a final rule need not match the rule proposed, indeed must not if the record demands a change. See, e.g., Fertilizer Inst. v. EPA, 935 F.2d 1303, 1311 (D.C.Cir.1991); Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 546-47 (D.C.Cir.1983); International Harvester Co. v. Ruckelshaus, 478 F.2d 615, 632 & n. 51 (D.C.Cir.1973). The reason is plain enough. Agencies should be free to adjust or abandon their proposals in light of public comments or internal agency reconsideration without having to start another round of rulemaking. International Harvester, 478 F.2d at 632 n. 51. The necessary predicate, however, is that the agency has alerted interested parties to the possibility of the agency's adopting a rule different than the one proposed. The adequacy of the notice depends, according to our precedent, on whether the final rule is a \"logical outgrowth\" of the proposed rule. Fertilizer Inst., 935 F.2d at 1311; see also AFL-CIO v. Donovan, 757 F.2d 330, 338 (D.C.Cir.1985). Because the \"logical outgrowth\" formulation may be merely another way of asking \"how much notice is enough,\" Small Refiner, 705 F.2d at 547, answering the question may prove difficult in some cases. This is not one of them.\n \n \n 16\n The Department's interim final rule does not even come close to complying with the notice requirement of Sec. 553. Something is not a logical outgrowth of nothing. The notice of proposed rulemaking contains nothing, not the merest hint, to suggest that the Department might tighten its existing practice of allowing substitution. Substitution is neither discussed nor mentioned. The subject is not touched upon in any of the rules proposed. Anyone reading those proposals would have assumed that 20 C.F.R. Sec. 656.30(c) would not be affected. The Department did publish a change it wanted to make in 20 C.F.R. Sec. 656.30, but the suggested amendment merely would have replaced the word \"job\" with the word \"employment\" in the phrase \"local job service office date stamped\" in subsection (b).\n \n \n 17\n The Federal Register Act, 44 U.S.C. Secs. 1501-1511, and the regulations thereunder, require agencies to include a preamble to their notice of proposed rulemaking \"which will inform the reader, who is not an expert in the subject area, of the basis and purpose for the ... proposal.\" 1 C.F.R. Sec. 18.12(a). To the nonexpert reader, the Department's preamble in July offered no clues of what was to come in October. To experts in the field, the preamble allayed any fears that the Department's substitution rule was on the table. The preamble stated that the Department had \"decided to limit [its] proposed rule to implementing the changes made to the permanent labor certification process by the [1990] Act and to minor technical changes.\" 56 Fed.Reg. at 32,245. Yet the final no-substitution rule implemented no changes made by the 1990 Act and it is not by any stretch a \"minor technical change.\" Furthermore, the notice announced that the proposed rules would not \"affect\" 20 C.F.R. Sec. 656.30, the section providing that a labor certification is valid indefinitely. 56 Fed.Reg. at 32,246. The interim final rule did more than simply \"affect\" Sec. 656.30. It prohibited what the rule had permitted. 56 Fed.Reg. at 54,925, 54,930.\n \n \n 18\n The Department's preamble did mention the Service's proposed change in its designation of priority dates. But in this respect the Department said only that it would work with the Service \"in an effort to insure that any new regulations apply only to applications filed after October 1, 1991.\" 56 Fed.Reg. at 32,246. No one could have suspected from this brief reference regarding retroactivity that the Department not only would work with the Service, but also would lay down its substitution rule as a bargaining chip for the Service's retaining its existing rule on priority dates. An article in an immigration law journal, published shortly after the Department promulgated its interim final rule, reported that a leading member of the immigration bar approved the trade-off. DOL's Final Rules Issued; Employers' Concerns Allayed, IMMIG. POL'Y & L., Nov. 1, 1991, at 1. The district court treated this as evidence \"that the integral nature of the trade-off between priority dates and substitution was a well-known and much debated issue among the organized immigration bar.\" Kooritzky v. Martin, No. 91-3011-LFO, 1992 WL 172572, at * 5, 1992 U.S.Dist.LEXIS 9401, at * 13-* 14 (D.D.C. July 1, 1992). The immigration lawyer submitted an affidavit to the district court stating that he was never \"apprised that the regulations governing substitution of aliens in the labor certification process were about to change,\" and that he simply intended to indicate that the anti-substitution rule was not a \"major blow\" to his practice. Apart from the affidavit, we do not believe the article leads to the district court's conclusion. That some members of the interested public approved of the final rule hardly demonstrates that they and others had reason to anticipate it. If it were proper to look beyond the terms of the Department's notice of proposed rulemaking, but cf. AFL-CIO v. Donovan, 757 F.2d at 340, far more compelling evidence tells a different story. The Department received more than one hundred comments regarding the interim final rule's elimination of substitution, each highly critical of the change. The Department had received no comments on the subject in response to its notice of proposed rulemaking.\n \n \n 19\n It may well be, as the district court stated, that the substitution rule and priority dates are interrelated, even though substitution is within the Department's jurisdiction while priority dates are within the Service's. But the question is not whether a proposal of one agency is logically related to the proposal of another agency. The Department offered no proposal on substitution despite its awareness of the Service's intentions. Interested persons, including Kooritzky, therefore had no opportunity to present their views on the matter before the Department acted. The Department gave them no reason to believe substitution would be a subject of its final rulemaking.\n \n \n 20\n We therefore hold that the Department of Labor promulgated its 1991 amendment to 20 C.F.R. Sec. 656.30(c) in violation of 5 U.S.C. Sec. 553. A \"reviewing court shall,\" the APA instructs, \"set aside agency action\" when the agency has acted arbitrarily or \"without observance of procedure required by law,\" 5 U.S.C. Sec. 706(2)(D). See, e.g., American Petroleum Inst. v. EPA, 906 F.2d 729, 742 (D.C.Cir.1990); Advanced Micro Devices v. CAB, 742 F.2d 1520, 1542-43, 1544 (D.C.Cir.1984). The judgment of the district court is therefore reversed and the case is remanded. We leave it to the district court to fashion appropriate relief in accordance with this opinion.\n \n \n 21\n So Ordered.\n \n \n \n *\n Of the United States District Court for the Northern District of Illinois, sitting by designation pursuant to 28 U.S.C. Sec. 294(d)\n \n \n 1\n Category 2 consists of aliens who are members of professions and who hold advanced degrees; and aliens who have exceptional ability in the sciences, arts or business. With respect to this category, the Attorney General may waive the requirement that the alien's services are sought by an employer in the United States. 8 U.S.C. Sec. 1153(b)(2)(A) & (B). Category 3 consists of skilled workers, members of professions who hold baccalaureate degrees, and aliens capable of performing unskilled labor not of a temporary or seasonal nature. 8 U.S.C. Sec. 1153(b)(3)(A)\n \n \n 2\n The basic requirements vary according to the nature of the job for which the alien is being recruited. See, e.g., 20 C.F.R. Sec. 656.21a. The procedure, for example, is different for nurses and physical therapists. But the differences are unrelated to the issue presented here. 2 CHARLES GORDON & STANLEY MAILMAN, IMMIGRATION LAW AND PROCEDURE Sec. 44.02, at 44-9 to -10 (1993)\n \n \n 3\n The petition, like the labor certification, is valid indefinitely. See 8 C.F.R. Sec. 204.5(n)(3)\n \n \n 4\n A labor certification involving a specific job offer is valid only for the particular job opportunity, the alien for whom certification was granted, and for the area of intended employment stated on the Application for Alien Employment Certification form\n \n \n 20\n C.F.R. Sec. 656.30(c)(2) (the interim final rule added the underlined language)\n \n \n 5\n The Service's final rule dropped the proposal to change the date on which priority is established. See 56 Fed.Reg. 60,897 (Nov. 29, 1991)\n \n \n ",
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| D.C. Circuit | Court of Appeals for the D.C. Circuit | F | USA, Federal |
664,623 | Easterbrook, Ripple, Wood | 1994-03-16 | false | ronald-d-lunsford-jr-hazen-e-upham-and-david-gary-v-timothy-bennett | null | Ronald D. Lunsford, Jr., Hazen E. Upham, and David Gary v. Timothy Bennett, Donald Jarrett, Laura Perry | Ronald D. LUNSFORD, Jr., Hazen E. Upham, and David Gary, Plaintiffs-Appellants, v. Timothy BENNETT, Donald Jarrett, Laura Perry, Et Al., Defendants-Appellees | Richard A. Waples (argued), Indianapolis, IN, John Emry, Franklin, IN, for plaintiffs-appellants., John D. Ulmer, Michael F. DeBoni (argued), Yoder, Ainlay, Ulmer & Buckingham, Goshen, IN, for defendants-appellees. | null | null | null | null | null | null | null | Argued Dec. 1, 1993. | null | null | 76 | Published | null | <parties id="b1654-10">
Ronald D. LUNSFORD, Jr., Hazen E. Upham, and David Gary, Plaintiffs-Appellants, v. Timothy BENNETT, Donald Jarrett, Laura Perry, et al., Defendants-Appellees.
</parties><br><docketnumber id="b1654-14">
No. 93-1763.
</docketnumber><br><court id="b1654-15">
United States Court of Appeals, Seventh Circuit.
</court><br><otherdate id="b1654-16">
Argued Dec. 1, 1993.
</otherdate><br><decisiondate id="b1654-17">
Decided March 16, 1994.
</decisiondate><br><attorneys id="b1657-10">
<span citation-index="1" class="star-pagination" label="1577">
*1577
</span>
Richard A. Waples (argued), Indianapolis, IN, John Emry, Franklin, IN, for plaintiffs-appellants.
</attorneys><br><attorneys id="b1657-11">
John D. Ulmer, Michael F. DeBoni (argued), Yoder, Ainlay, Ulmer & Buckingham, Goshen, IN, for defendants-appellees.
</attorneys><br><judges id="b1657-12">
Before WOOD, Jr., EASTERBROOK, and RIPPLE, Circuit Judges.
</judges> | [
"17 F.3d 1574"
]
| [
{
"author_str": "Wood",
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"type": "010combined",
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"opinion_text": "17 F.3d 1574\n Ronald D. LUNSFORD, Jr., Hazen E. Upham, and David Gary,Plaintiffs-Appellants,v.Timothy BENNETT, Donald Jarrett, Laura Perry, et al.,Defendants-Appellees.\n No. 93-1763.\n United States Court of Appeals,Seventh Circuit.\n Argued Dec. 1, 1993.Decided March 16, 1994.\n \n Richard A. Waples (argued), Indianapolis, IN, John Emry, Franklin, IN, for plaintiffs-appellants.\n John D. Ulmer, Michael F. DeBoni (argued), Yoder, Ainlay, Ulmer & Buckingham, Goshen, IN, for defendants-appellees.\n Before WOOD, Jr., EASTERBROOK, and RIPPLE, Circuit Judges.\n HARLINGTON WOOD, Jr., Circuit Judge.\n \n \n 1\n Ronald D. Lunsford, Hazen E. Upham, and David Gary brought this civil rights action against several Indiana prison and county officials under 42 U.S.C. Sec. 1983 alleging that the defendants (1) violated the plaintiffs' rights under the Eighth and Fourteenth Amendments to the United States Constitution, (2) violated the plaintiffs' Fifth Amendment Due Process rights, and (3) assaulted and battered the plaintiffs in violation of the Indiana Constitution, Article I, Sec. 15.1 The complaint names Timothy Bennett, Donald Jarrett, Laura Perry, and Richard Truex as defendants in their individual capacities, and Randall Yohn in his capacity as Sheriff of Elkhart County, Indiana.\n \n \n 2\n Plaintiffs appeal from the district court's order granting summary judgment for the defendants. The district court dismissed with prejudice the plaintiffs' federal law claims, and declined to exercise pendant jurisdiction over the plaintiffs' state law claims. For the reasons discussed below, we affirm.\n \n I. BACKGROUND\n \n 3\n The events that form the basis of plaintiffs' complaint occurred over a three day period in late December, 1989. Lunsford, Upham, and Gary were convicted prisoners being held in Ward 9, a ward used for disciplinary segregation, of the Elkhart County Security Center. Plaintiffs complain that during this three day period they were deprived of basic hygiene items, subjected to loud noises over the intercom, served poorly-prepared food, and verbally and physically abused by defendants.\n \n \n 4\n Tension in the jail began to build on December 24, 1989, when plaintiffs were denied toilet paper, personal hygiene items, and cleaning supplies. Lunsford and Gary testified that this continued for approximately a twenty-four hour period between the 24th and 25th, while Upham states that he did not receive any hygiene items for a twenty-four hour period between December 25 and 26. Plaintiffs also complain that they were forced to listen to sporadic loud noises over the intercom.2 The source for these noises was the third floor control room allegedly under the defendants' control. Plaintiffs' repeated requests to use a telephone and to speak with higher ranking prison officials about the problem were denied.\n \n \n 5\n At lunch on December 26, plaintiffs were served as part of their meal cold, poorly-prepared beans. Upset with this course of treatment, the prisoners (including plaintiffs) threw their trays, dishes, and eating utensils to the floor of the catwalk outside of their cells.\n \n \n 6\n When a new shift of guards came on duty at 3:00 in the afternoon, they were advised by Officer Snyder about the lunch incident. Officers Snyder, Truex, Perry, and Bennett then did a \"shakedown\" search in Ward 9 to determine if any items had been kept by the prisoners. During the search the guards and prisoners were verbally abusive to one another, and some of the prisoners threatened to flood the ward.\n \n \n 7\n Dinner was again unsatisfactory to the prisoners prompting them to throw their plates and utensils to the floor. Later, after being subjected to more loud noises over the intercom, all of these events culminated in an act of protest by the prisoners: they flooded Ward 9. The plaintiffs, along with the other prisoners, placed styrofoam cups in their individual toilets and began flushing. Continuing this action for approximately twenty minutes caused the toilets to overflow and flood the ward with several inches of water. Although the water emanated from the toilets, the water was clean and did not contain any sewage particles.\n \n \n 8\n Laura Perry, the officer in charge, contacted Sergeant Marks, her immediate supervisor, to discuss the situation. Marks instructed Perry to remove the prisoners from their cells, secure them to the \"catwalk\" immediately adjacent to the cells, and clean up the water. Officer Marks was concerned about property damage being caused by prolonged flooding.\n \n \n 9\n Acting on Perry's instruction, Officers Bennett, Perry, Truex, Jarrett, and other jail officers, removed the prisoners from their cells and shackled them to the bars of the flooded cells rather than placing them in any of several open detention units. Specifically, plaintiffs were shackled by their hands and feet to their cells standing ankle-deep in water while the water was cleaned up. Lunsford testified in his deposition that he was facing the bars with his hands shackled above his head, but his arms were not completely stretched out, and that Gary and Upham were bound in the same position. Upham testified, however, that his arms were stretched out straight above his head.\n \n \n 10\n During the cleanup Lunsford spit at Officer Truex, and Truex returned fire. Lunsford also spit at Officer Perry and other officers. While the officers cleaned up the water, the inmates (including plaintiffs) and officers talked \"trash\" to one another, and splashed water on one another using their feet. Officer Jarrett allegedly called Gary a black SOB. Lunsford testified that Upham splashed and kicked water on the officers, although Upham denies participating in this exchange. Officers Truex and Bennett responded by picking up a bucket of water and pouring it over Upham. Upham claims that when the water was poured on him he was hit in the head twice by the bucket, once as the water was dumped on his head and once as the bucket was removed. Since being hit in the head with the bucket, Upham claims that he gets daily headaches though he is still able to work.\n \n \n 11\n Approximately two hours after the flooding began both Lunsford and Upham discovered that the shackles were loose enough to allow them to remove their hands. When the officers noticed Lunsford and Upham with their hands free, they tried to reshackle both individuals. Upham did not resist the officers' actions and suffered no injuries. Lunsford, however, refused to be reshackled or cuffed in front, so Officers Bennett, Truex, and Jarrett struggled with Lunsford and forcefully reshackled him to the bars. The officers did not hit or beat Lunsford, but Officer Jarrett is alleged to have used excessive force when resecuring Lunsford. Lunsford continued to struggle after being returned to the handcuffs. An hour later prison officials released the prisoners and returned them to their cells. At this time Lunsford complained about pain in his left arm and shoulder, and bleeding from his right wrist. Prison officials took Lunsford to Goshen General Hospital for treatment. Hospital personnel diagnosed his injuries to be minor abrasions to the wrists and a pull or muscle strain in his shoulder.\n \n \n 12\n Plaintiffs complain that this series of abuses, when viewed in their totality, constitute cruel and unusual punishment in violation of the Eighth Amendment. Plaintiffs also argue that by inflicting punishment without any form of notice or hearing, the defendants violated their Fifth Amendment Due Process rights. We find these arguments to be without merit.\n \n II. ANALYSIS\n \n 13\n We review the district court's order granting summary judgment de novo, viewing all facts in favor of the plaintiffs. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). Summary judgment is appropriate \"if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.\" Fed.R.Civ.P. 56(c). No material facts exist here so as to preclude us from affirming the district court's decision.\n \n \n 14\n The central claim alleged in plaintiffs' complaint concerns violations of the Eighth Amendment. \"Cruel and unusual punishment\" of individuals convicted of crimes is prohibited by the Eighth Amendment and applies to the states through the Due Process Clause of the Fourteenth Amendment. Robinson v. California, 370 U.S. 660, 666, 82 S.Ct. 1417, 1420, 8 L.Ed.2d 758 (1962). For plaintiffs to show that the prison officers' conduct over the three day period violated the Eighth Amendment, they must satisfy a test that involves both a subjective and objective component. Wilson v. Seiter, 501 U.S. 294, ---, 111 S.Ct. 2321, 2324, 115 L.Ed.2d 271 (1991). The objective analysis focuses on the nature of the defendants' acts, and whether the conditions they were forced to endure exceeded contemporary bounds of decency of a mature, civilized society. Jackson v. Duckworth, 955 F.2d 21, 22 (7th Cir.1992). This is necessarily a difficult and imprecise contextual inquiry. Hudson v. McMillian, --- U.S. ----, ----, 112 S.Ct. 995, 1000, 117 L.Ed.2d 156 (1992); Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981); Trop v. Dulles, 356 U.S. 86, 100-101, 78 S.Ct. 590, 597-98, 2 L.Ed.2d 630 (1958). The subjective component, really an inquiry into intent, requires us to ask whether the prison officials acted wantonly and with a sufficiently culpable state of mind. Wilson, 501 U.S. at ----, 111 S.Ct. at 2326. \"Wanton\" has a different meaning depending on the category of the alleged constitutional violation. For instance, in a prison disturbance situation, Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) held that wantonness consisted of acting \" 'maliciously and sadistically for the very purpose of causing harm.' \" Whitley, 475 U.S. at 320-21, 106 S.Ct. at 1085 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.1973). This high state of mind threshold is different in cases alleging inadequate conditions of confinement where a \"deliberate indifference\" standard is used. Wilson, 501 U.S. at ----, 111 S.Ct. at 2326-27; Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976). Also, determining \"whether [conduct] can be characterized as 'wanton' depends upon the constraints facing the official.\" Wilson, 501 U.S. at ----, 111 S.Ct. at 2326. If either the objective or subjective portion is not satisfied, plaintiffs cannot make out an Eighth Amendment claim. We examine the essential facts under both parts of this test. Where we find that plaintiffs cannot meet the subjective component, we do not address the objective component.\n \n A. Conditions of Confinement\n \n 15\n The initial complaints lodged by plaintiffs concern the conditions imposed on their confinement. In this regard the Eighth Amendment is implicated only in those cases where a prisoner is deprived of the \"minimal civilized measure of life's necessities.\" Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981). Plaintiffs claim that they were denied basic hygiene items, subjected to loud noises over the intercom, and served poorly-prepared food. Neither the objective nor subjective parts of the test are satisfied for these claims.\n \n \n 16\n Here the delay in providing plaintiffs with requested hygiene supplies is not the type of extreme deprivation required to establish an objective violation. Compare Harris v. Fleming, 839 F.2d 1232 (7th Cir.1988), with Jackson, 955 F.2d at 22. At most this can be argued to be negligence by prison officials. Lunsford and Gary did not receive personal hygiene items for approximately a twenty-four hour period between December 24th and 25th. Upham claims that he did not receive hygiene or cleaning supplies for a twenty-four hour period between December 25 and 26. This temporary discomfort affecting only a few prisoners hardly violates common notions of decency. See Harris, 839 F.2d at 1234-36. The record contains no evidence indicating that plaintiffs' cells were unusually dirty or unhealthy, or that health hazards existed. Moreover, the guards were not deliberately indifferent to the plaintiffs' requests as they provided each of the plaintiffs with the requested materials after twenty-four hours. See Hudson, --- U.S. at ----, 112 S.Ct. at 1001. Regarding the subjective component, Duckworth v. Franzen, 780 F.2d 645 (7th Cir.1985), is the law in this circuit regarding the minimum intent requirement. The prison officials must have \"actual knowledge of impending harm easily preventable.\" Id. at 653. See also McGill v. Duckworth, 944 F.2d 344, 348-49 (7th Cir.1991) (discussing Seventh Circuit case law on the subjective component of Eighth Amendment analysis). Even accepting the plaintiffs' story that their requests for personal hygiene items were refused by defendants does not meet the minimal intent standard stated in Franzen. The chance of harm resulting from the temporary failure to provide personal hygiene items is too remote for plaintiffs to meet this subjective requirement, and thus this claim must fail. See Wilson, 501 U.S. at ----, 111 S.Ct. at 2326; Jackson, 955 F.2d at 22.3\n \n \n 17\n Neither the loud noises nor the poorly-prepared food claims satisfy the subjective component. Mere negligence does not satisfy the deliberate indifference standard. Rather, plaintiffs must demonstrate \"something approaching a total unconcern for [his] welfare in the face of serious risks, or a conscious, culpable refusal to prevent harm.\" Duane v. Lane, 959 F.2d 673, 677 (7th Cir.1992), citing McGill v. Duckworth, 944 F.2d 344, 347 (7th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1265, 117 L.Ed.2d 493 (1992) and Franzen, 780 F.2d at 653. The record contains no evidence that the noise levels posed a serious risk of injury to the plaintiffs. Subjecting a prisoner to a few hours of periodic loud noises that merely annoy, rather than injure the prisoner does not demonstrate a disregard for the prisoner's welfare. Similarly, the plaintiffs' complaints about cold and poorly-prepared food must fall. The affidavit of Nancy Truex, Food Services Director of the Elkhart County jail, states that the prisoners received three square meals a day in compliance with nutritional guidelines set by a Goshen Hospital dietician. See Smith v. Sullivan, 553 F.2d 373, 380 (5th Cir.1977) (\"A well-balanced meal, containing sufficient nutritional value to preserve health, is all that is required.\"). The record contains no evidence contradicting this fact or demonstrating deliberate indifference by prison officials. See Hoitt v. Vitek, 497 F.2d 598, 601 (1st Cir.1974). Additionally, we find that these food and noise claims do not satisfy the objective portion of the analysis as neither can be found to offend contemporary standards of decency.\n \n \n 18\n Perhaps realizing that their individual complaints about food, noise, and hygiene do not implicate the Eighth Amendment, they assert that we must view this case in the totality rather than as separate claims. In this regard our work is easy for the Wilson Court has already set the standard. \"Some conditions of confinement may establish an Eighth Amendment violation 'in combination' when each would not do so alone, but only when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise--for example, a low cell temperature at night combined with a failure to issue blankets.\" Wilson, 501 U.S. at ----, 111 S.Ct. at 2327. Here the cumulative effect of plaintiffs' complaints do not add up to the deprivation of a single human need. They received food in accordance with prison and constitutional guidelines; hygiene items were provided within a constitutionally permissible time frame; and the loud noises did not deprive the prisoners of rest or other necessity. We find no threat to human health or safety posed by any of plaintiffs' complaints about the conditions imposed during their stay at the Elkhart County Security Center. The Constitution does not require prison officials to provide the equivalent of hotel accommodations or even comfortable prisons. Occasional discomfort is \"part of the penalty that criminal offenders pay for their offenses against society.\" Rhodes, 452 U.S. at 347, 101 S.Ct. at 2399.\n \n \n 19\n In summary, the conditions of plaintiffs' confinement, either when viewed separately or in their totality, were not noisome or offensive enough to violate common standards of decency, did not implicate the Eighth Amendment, and the issues were ready to be decided on summary judgment. In reaching this conclusion we realize the judiciary's important role in protecting prisoners from unmindful prison officials, see, e.g., Lightfoot v. Walker, 486 F.Supp. 504 (S.D.Ill.1980), and the importance of providing at least a minimal level of cleanliness and sanitation for the health and safety of the prisoners. Minimal standards were clearly met here.\n \n B. The Flood\n \n 20\n We are left with the December 26 incident as the basis of the plaintiffs' complaint. Focusing on the subjective part of the analysis, our task is to determine \" 'whether force was applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.' \" Whitley, 475 U.S. at 320-21, 106 S.Ct. at 1085, citing Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973); Hudson, --- U.S. at ----, 112 S.Ct. at 999. Measuring prison officials' conduct under this standard applies in situations where the prisoners have rioted, or when corrections officers are merely attempting to maintain order. Hudson, --- U.S. at ----, 112 S.Ct. at 999. Whether the defendants' actions were done in a malicious and sadistic manner to cause harm is a strict and fairly high threshold. Factors relevant to our inquiry include the nature and extent of the harm, the need for force, the threat to the safety of staff and inmates, and the extent of the injury inflicted on the prisoner. Hudson, --- U.S. at ----, 112 S.Ct. at 999; Whitley, 475 U.S. at 321, 106 S.Ct. at 1085.\n \n \n 21\n Once the prisoners flooded the cell block, the guards had to secure the prisoners so that the trustees could mop up the water and prevent physical damage to the prison facility. This required that the prisoners be removed from the cells and restrained appropriately. The guards opened the cells and shackled each prisoner to their cell. Being restrained in this manner for three hours, although uncomfortable, does not seem unreasonable given the circumstances.4 It allowed the guards to quickly and efficiently restrain the prisoners so that the trustees could immediately begin to cure the problem. Simply because, in retrospect, there was another location that the prisoners could have been placed while the water was removed, does not violate any constitutional right.\n \n \n 22\n Lunsford complains that Officers Bennett, Truex, and Jarrett physically abused him when they reshackled him to the cell. During the three hour cleanup process Lunsford and Upham were able to remove their hands from the shackles. After the guards noticed the two inmates standing with their hands free, they attempted to correct the situation. Upham voluntarily allowed the guards to replace his hands in the shackles and was not injured. Lunsford, however, forcefully resisted attempts to return him to the shackles and was injured during the scuffle. Lunsford admits that he refused to be reshackled and received injuries as a result of his resistance. The officers did not strike or beat Lunsford, using only the amount of force necessary to reshackle him. This course of conduct does not evince any malicious or sadistic infliction of harm by defendants. Accordingly, Lunsford cannot sustain a claim for this harm under the Eighth Amendment.\n \n \n 23\n Upham contends that he was subjected to cruel and unusual punishment when Officers Truex and Bennett poured a bucket of water over his head. But not every touch that an inmate finds offensive rises to the level of a constitutional violation. \"The Eighth Amendment's prohibition of cruel and unusual punishment necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort 'repugnant to the conscience of mankind.' \" Hudson, --- U.S. at ----, 112 S.Ct. at 1000, quoting Whitley, 475 U.S. at 327, 106 S.Ct. at 1088. The prisoners, including plaintiffs, had flooded the ward forcing prison officials to clean up the water to prevent water damage. Prisoners and guards were talking \"trash\" to one another and some prisoners were splashing the guards with water. Institutional security certainly was threatened by this disturbance and prison officials are obliged to restore order and control in these tumultuous situations. Pouring a bucket of water over the head of a prisoner who is already standing ankle-deep in water, while it may be seen as unnecessary in retrospect, is a minor use of force that does not offend the conscience. We do not advocate or condone the officers' conduct in this situation, but find that it does not rise to the level of a constitutional violation. The evidence, when viewed in the light most favorable to the plaintiff, does not support a finding of action repugnant to the conscience of mankind.\n \n \n 24\n Moreover, we question whether Upham suffered any harm as a result of this incident. Though a significant injury is not required to establish cruel and unusual punishment, the degree of injury is relevant to determining \" 'whether the use of force could plausibly have been thought necessary' in a particular situation, 'or instead evinced such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur.' \" Hudson, --- U.S. at ----, 112 S.Ct. at 999-1000. Upham claims he was hit in the head twice by the bucket. Since the incident occurred, he gets daily headaches, though these do not prevent him from working. He has not seen a doctor or received any medical attention for these pains. This type of minor injury further supports our conclusion that at most this incident was a de minimis use of force not intended to cause pain or injury to the inmate.\n \n \n 25\n Finally plaintiffs argue that all of defendants' actions discussed above, including the conditions of confinement claims and the incidents that occurred during the flood, when viewed as a course of conduct over this three day period, establish subjective bad faith on the part of the officers and thus demonstrate a cognizable claim for Eighth Amendment violations. Reply Brief at 5. We find no merit in this argument. First, bad faith is not the standard for the subjective component of the test. Depending on the situation, \"wanton\" is defined using either a deliberate indifference or a malicious and sadistic standard. Second, this argument totally ignores the objective portion of Eighth Amendment analysis. For these reasons we dismiss this argument under the reasoning discussed above.\n \n C. Due Process Claims\n \n 26\n Stemming from the defendants' use of force against Lunsford and Upham on December 26, 1989, plaintiffs allege that the defendants' \"intentional, unjustified, and excessive use of force constituted a deprivation of the plaintiffs' liberty without due process of law in violation of the Fourteenth Amendment.\" This allegation raises two possible deprivations: substantive due process rights and procedural due process rights. To the extent defendants could have violated plaintiffs' substantive due process rights, these rights are essentially coextensive with Eighth Amendment prohibitions against cruel and unusual punishment, and \"where the deliberate use of force is challenged as excessive and unjustified,\" the Eighth Amendment serves as the primary source of protection for convicted prisoners. Whitley, 475 U.S. at 326-27, 106 S.Ct. at 1087-88. Because we find no cruel and unusual punishment in this case, there can similarly be no deprivation of substantive due process rights.\n \n \n 27\n In Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the Supreme Court recognized several procedural safeguards applicable to individuals being held in correctional institutions. The Court held that the Due Process Clause of the Fourteenth Amendment entitled state prisoners to notice and some kind of hearing in connection with discipline determinations involving serious misconduct. But these pre-deprivation protections could not reasonably be applied to a prison disturbance situation where institutional security is threatened. Prison officials must be free to take appropriate action to maintain internal order and protect the safety of inmates and guards. See Pell v. Procunier, 417 U.S. 817, 823, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974); Bell v. Wolfish, 441 U.S. 520, 546-47, 99 S.Ct. 1861, 1877-78, 60 L.Ed.2d 447 (1979) (\"Prison administrators ... should be accorded a wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security\"),5 and due process does not require that a hearing be held before applying necessary and justifiable force in a prison disturbance situation. Plaintiffs do not present any serious argument against this conclusion and we find that this claim is essentially just a recharacterization of the Eighth Amendment arguments we discounted above.\n \n D. State Constitution Violations\n \n 28\n Because we find that the district court properly granted summary judgment in defendants' favor on both the Eighth and Fourteenth Amendment claims, we also affirm its decision to decline jurisdiction over plaintiffs' state law claims.\n \n \n 29\n We find that there are insufficient facts in the record for the plaintiffs to maintain a cognizable claim under 42 U.S.C. Sec. 1983, and, accordingly, the district court's judgment is\n \n \n 30\n AFFIRMED.\n \n \n \n 1\n Because Upham and Gary failed to file tort claim notices in compliance with Ind.Code Sec. 34-4-16-1 et seq., the district court held that they are barred from proceeding on the Indiana Constitution claim. Upham and Gary do not appeal this decision\n \n \n 2\n Lunsford states that this occurred between four to eight p.m. on December 24, 25, and 26. Lunsford dep. at 21-22. He described these noises as music and loud talking. Gary described the sounds as an \"eerie siren-type noise ... sort of a noise like scratching on a car or cardboard and different verbal things that was being said that sounded like when you're pushing a buzzer and it's just going 'ehn-n-n-n-n-n,' \" and stated that they occurred over a twenty-four hour period between December 25 and 26. Gary dep. at 41\n \n \n 3\n Lunsford also individually claims that he was denied the use of a telephone for a twenty-four hour period preceding December 26. For the same reasons discussed above, this claim does not meet either the objective or subjective tests for cruel and unusual punishment\n \n \n 4\n Plaintiffs complain that it took the trustees only forty-six minutes to clean up the water, yet the prisoners were locked to their cells for approximately three hours. The authority they cite in support, however, is unclear if not contradictory to this assertion\n An \"Officer's Job Assignment\" sheet, Jarrett dep. Exhibit 3, indicates that the flooding began at 6:30 p.m., the trustees began cleanup at 7:20 p.m., and that the prisoners were unlocked at 10:16 p.m. The exhibit does not clearly indicate when the trustees completed the cleanup. The best indication is contained in Lunsford's deposition testimony:\n Q: Now, after you were shackled initially, what happened next?\n A: Well, we stood there; we hung there for approximately two hours....\n Q: Okay. Now, during this two-hour period, what was going on in the jail cell?\n A: [The trustees] was trying to clean the water up around us.\n Lunsford dep. at 35-36.\n Because plaintiffs have failed to establish sufficient facts in the record indicating when the trustees completed the cleanup, we do not address the implications of this argument.\n \n \n 5\n Here we note that, in what was otherwise a well-reasoned opinion, the district court correctly concluded that no procedural due process right was violated, but for the wrong reasoning. The district court explained,\n [i]f procedural due process notions were viable in these situations, those procedures would certainly have to be post-deprivation procedures such as those enunciated in Parratt v. Taylor, 451 U.S. 527 [101 S.Ct. 1908, 68 L.Ed.2d 420] (1981), and Hudson v. Palmer, 468 U.S. 517 [104 S.Ct. 3194, 82 L.Ed.2d 393] (1984). While the post-deprivation remedies outlined in Parratt, Palmer, and progeny provide the only basis for procedures in these situations, it is well-established that Parratt does not apply to violations of substantive constitutional guarantees. See Guenther v. Homgreen [Holmgreen], 738 F.2d 879, 882 (7th Cir.1984), cert. denied, 469 U.S. 1212 [105 S.Ct. 1182, 84 L.Ed.2d 329] (1985). Therefore, since the plaintiffs have obviously asserted Eighth Amendment claims, there is no basis for consideration of a procedural due process claim.\n Mem. op. at 25-26.\n The district court misread Guenther. Parratt recognized two different types of claims under Sec. 1983: substantive constitutional violations and procedural due process violations. The Court held that available state law remedies provided adequate relief for the alleged due process violation from the negligent loss of property by state officials such that plaintiffs had no cognizable Sec. 1983 action. Parratt, 451 U.S. at 543-44, 101 S.Ct. at 1916-17. As recognized by this court in Guenther, Parratt does not apply to substantive due process violations. This does not mean, as the district court mistakenly concluded, that where a plaintiff asserts a substantive constitutional violation, they cannot also assert a procedural due process violation. A plaintiff may assert both claims, but Parratt only applies to the procedural due process claim.\n \n \n ",
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| Seventh Circuit | Court of Appeals for the Seventh Circuit | F | USA, Federal |
1,758,999 | Per Curiam | 1979-11-02 | false | ex-parte-williams | null | Ex Parte Williams | null | null | null | null | null | null | null | null | null | null | null | null | 50 | Published | null | null | [
"375 So. 2d 1271"
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"opinion_text": "\n375 So.2d 1271 (1979)\nEx parte James Ceefers WILLIAMS.\n(Re: James Ceefers Williams v. State of Alabama).\nNo. 79-63.\nSupreme Court of Alabama.\nNovember 2, 1979.\nPER CURIAM.\nWrit denied.\nTORBERT, C. J., and BLOODWORTH, FAULKNER, ALMON and EMBRY, JJ., concur.\n",
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| Supreme Court of Alabama | Supreme Court of Alabama | S | Alabama, AL |
2,593,392 | Armstrong | 2009-05-27 | false | state-v-allen | Allen | State v. Allen | null | null | null | null | null | null | null | null | null | null | null | null | 19 | Published | null | null | [
"207 P.3d 483"
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"opinion_text": "\n207 P.3d 483 (2009)\nSTATE of Washington, Respondent,\nv.\nLeif ALLEN, Appellant.\nNo. 36868-4-II.\nCourt of Appeals of Washington, Division 2.\nMay 27, 2009.\n*485 Thomas Edward Doyle, Attorney at Law, Hansville, WA, for Appellant.\nCarol L. La Verne, Thurston County Prosecutor's Office, Olympia, WA, for Respondent.\nARMSTRONG, J.\n¶ 1 Leif Allen appeals his two convictions of violating a no-contact order, arguing that reversal is required because his offenses did not include acts or threats of violence and because his two convictions violated his double jeopardy rights. He also argues that the trial court miscalculated his offender score and sentenced him beyond the statutory maximum. We affirm Allen's convictions but remand for resentencing.\n\nFacts\n¶ 2 On March 4, 2007, Aletta Foley checked her e-mail for the first time in about three weeks and found two messages from Allen. One was sent on February 12 and was the return of an e-mail she had sent him while they were dating, and the other was sent on February 14 and was an invitation to join a social networking website. At the time, there was a court order in place prohibiting Allen from having direct or indirect contact with Foley.\n¶ 3 After Foley reported these contacts to the police, the State charged Allen by amended information with two counts of violating a no-contact order (domestic violence). These were felony charges due to Allen's prior no-contact order violations. Before trial, Allen stipulated that he had two prior convictions for violating a no-contact order.\n¶ 4 Allen admitted at trial that he had sent the February 12 e-mail but explained that he had inadvertently clicked the reply or forward button instead of deleting Foley's prior e-mail to him. With reference to the February 14 e-mail, Allen said that he had nothing to do with the invitation that Foley received.\nI'd gone throughthere's a portion that you can go through your contact list at the Yahoo account and send an invitation to each member on there, not realizing that I still had Ms. Foley's contact information in there. Several other people also received the same message.\nReport of Proceedings (RP) at 46. Allen admitted sending an e-mail on February 17 to Foley's current boyfriend in which he wrote, \"Never turn your back on a Foley.\" Ex. 7; RP at 41. He explained that he sent this message because he was upset with Foley's family.\n¶ 5 After the jury found Allen guilty as charged, the State submitted a statement of criminal history showing that he had five prior Thurston County felony convictions. The State also filed a sentencing manual worksheet showing the sentencing range that corresponded with Allen's offender score. Based on Allen's sentencing range of 41 to 54 months, and the prior offenses that the prosecuting attorney described to the court, the State recommended a 54-month sentence. Defense counsel recognized that a low-end sentence of 41 months would be inappropriate and noted that \"with Mr. Allen's criminal history, it would be real easy for the Court to say 54 months,\" but requested a sentence somewhere between 41 months and the middle of the sentencing range. RP at 80-81. The court found Allen's criminal history \"kind of shocking,\" especially in terms of his three prior convictions of violating protection orders, and imposed concurrent sentences of 50 months in prison and 9 to 18 months of community custody. RP at 81-82; Clerk's Papers (CP) at 52.\n¶ 6 Allen now appeals both his convictions and his sentences.\n\nAnalysis\n\nI. Interpretation of Former RCW 26.50.110(1) (2006)\n¶ 7 Allen first contends that his convictions should be reversed because they did *486 not include acts or threats of violence, which he argues are required for a criminal conviction under the version of RCW 26.50.110(1) in effect when he committed his offenses. If Allen is correct, he was sentenced unlawfully. Hence, this issue may be raised for the first time on appeal. State v. Ford, 137 Wash.2d 472, 477, 973 P.2d 452 (1999). We review questions of statutory interpretation de novo. State v. Bright, 129 Wash.2d 257, 265, 916 P.2d 922 (1996).\n¶ 8 Allen contends that former RCW 26.50.110(1) is ambiguous and that under the rule of lenity, such ambiguity must be resolved in his favor. See State v. Spandel, 107 Wash.App. 352, 358, 27 P.3d 613 (2001). The State agrees that the former statute is ambiguous but urges us to resolve that ambiguity by looking at its recent amendment, as we did in State v. Wofford, 148 Wash.App. 870, 201 P.3d 389 (2009).\n¶ 9 Former RCW 26.50.110(1) was not a \"virtuosic specimen\" of legislative drafting. Wofford, 201 P.3d at 392 (citing State v. Bunker, 144 Wash.App. 407, 413, 183 P.3d 1086, review granted, 165 Wash.2d 1003, 198 P.3d 512 (2008)). The provision stated as follows:\nWhenever an order is granted under this chapter, chapter 7.90, 10.99, 26.09, 26.10, 26.26, or 74.34 RCW, or there is a valid foreign protection order as defined in RCW 26.52.020, and the respondent or person to be restrained knows of the order, a violation of the restraint provisions, or of a provision excluding the person from a residence, workplace, school, or day care, or of a provision prohibiting a person from knowingly coming within, or knowingly remaining within, a specified distance of a location, or of a provision of a foreign protection order specifically indicating that a violation will be a crime, for which an arrest is required under RCW 10.31.100(2)(a) or (b), is a gross misdemeanor except as provided in subsections (4) and (5) of this section.\nFormer RCW 26.50.110(1). If a violation involves assaultive contact, it is a felony. RCW 26.50.110(4). And, if the offender has two previous convictions for violating a no-contact order, a third conviction is a felony. RCW 26.50.110(5). Violating a no-contact order is also punishable as contempt of court under RCW 26.50.110(3).\n¶ 10 RCW 10.31.100(2)(a), in turn, mandates that the police must arrest any person suspected of violating a Washington domestic violence or no-contact order, but only if they have probable cause to believe that the restrained person has threatened or performed acts of violence, or has entered a prohibited area. Wofford, 201 P.3d at 391; Bunker, 144 Wash.App. at 414, 183 P.3d 1086. RCW 10.31.100(2)(b) requires arrest under similar circumstances for foreign protection orders. Wofford, 201 P.3d at 391. Allen argues, therefore, that for a violation of former RCW 26.50.110(1) to be a criminal offense, the violation must be one that mandates arrest; i.e., one that involves an act or threat of violence.\n¶ 11 As we recognized in Wofford, it is unclear which provision of former RCW 26.50.110(1) the final phrase \"for which an arrest is required under RCW 10.31.100(2)(a) or (b)\" is intended to modify. Wofford, 201 P.3d at 391. Our goal in applying a statute is to carry out the legislature's intent, and if a statute is ambiguous, we may look to principles of statutory construction and legislative history to discern the legislature's intent. State ex rel. Citizens Against Tolls v. Murphy, 151 Wash.2d 226, 242-43, 88 P.3d 375 (2004); Cockle v. Dep't of Labor & Indus., 142 Wash.2d 801, 808, 16 P.3d 583 (2001).[1] The legislature's intent as to the elements of the crime of violating a no-contact order is plainly evidenced in the 2000 and 2007 amendments to RCW 26.50.110(1). Wofford, 201 P.3d at 392. These amendments show that the legislature always intended criminal penalties for any no-contact order violation.\n¶ 12 In 2000, the legislature added the RCW 10.31.100(2) cross reference to former RCW 26.50.110(1). Laws of 2000, ch. 119, *487 § 24. The legislative history confirms that \"[a] violation of a no-contact order, foreign protection order or restraining order that does not constitute a class C felony is a gross misdemeanor.\" 2000 Final Legislative Report, 56th Wash. Leg., at 131. The House of Representatives further summarized the bill, stating that \"a police officer shall arrest any person who violates the restraint or exclusion provision of a court order relating to domestic violence.\" H.B. Rep. on Engrossed Second Substitute S.B. 6400, 56th Leg., Reg. Sess. (Wash.2000) (E2 SSHBR 6400). The policy behind the 2000 amendment was to strengthen domestic violence laws, and the legislature plainly intended that a person commits a crime if he or she violates any no-contact order and that the violation need not involve an act or threat of violence or presence within a specified distance of a location to be criminal. Wofford, 201 P.3d at 393.\n¶ 13 The legislature amended RCW 26.50.110 again in 2007. Subsection (1)(a) now provides as follows:\nWhenever an order is granted under this chapter, chapter 7.90, 10.99, 26.09, 26.10, 26.26, or 74.34 RCW, or there is a valid foreign protection order as defined in RCW 26.52.020, and the respondent or person to be restrained knows of the order, a violation of any of the following provisions of the order is a gross misdemeanor, except as provided in subsections (4) and (5) of this section:\n(i) The restraint provisions prohibiting acts or threats of violence against, or stalking of, a protected party, or restraint provisions prohibiting contact with a protected party;\n(ii) A provision excluding the person from a residence, workplace, school, or day care;\n(iii) A provision excluding a person from knowingly coming within, or knowingly remaining within, a specified distance of a location; or\n(iv) A provision of a foreign protection order specifically indicating that a violation will be a crime.\nRCW 26.50.110(1)(a). The legislature specifically stated in the text of the bill that it was not intended to change the substantive law or broaden the scope of law enforcement, and that the reason for the amendment was to make clear the legislature's intent that a willful violation of a no-contact provision of a court order is a criminal offense. Laws of 2007, ch. 173, § 1. The 2007 amendments did not result in a substantive change in the law but clarified that a gross misdemeanor results when the restrained person knows of the order and violates a provision prohibiting acts or threats of violence against, or stalking of, a protected party, or a restraint provision prohibiting contact with a protected party. 2007 Final Legislative Report, at 138. As we stated in Wofford, the subsequent history of a statute may clarify its original legislative intent. Wofford, 201 P.3d at 392. The 2007 amendment clarifies that Allen's interpretation of former RCW 26.50.110(1) is, and has always been, erroneous. Wofford, 201 P.3d at 393.\n¶ 14 As we further explained in Wofford, principles of statutory construction also show that conduct for which an arrest is required is not necessary to sustain a conviction under former RCW 26.50.110(1). Wofford, 201 P.3d at 393. Both Madrid and Hogan relied on the last antecedent rule to conclude that former RCW 26.50.110(1) was not ambiguous and that the final clause referring to RCW 10.31.100 modified each preceding clause. Madrid, 145 Wash.App. at 115, 192 P.3d 909; Hogan, 145 Wash.App. at 217-18, 192 P.3d 915; see also In re Sehome Park Care Ctr., Inc., 127 Wash.2d 774, 781-82, 903 P.2d 443 (1995) (last antecedent rule provides that unless contrary intent appears in the statute, a qualifying phrase refers to the last antecedent, and a comma before the qualifying phrase is evidence that the phrase applies to all antecedents). But the last antecedent rule applies only if a statute is ambiguous and should not be read as inflexible or universally binding. In re Pers. Restraint of Smith, 139 Wash.2d 199, 205, 986 P.2d 131 (1999). The last antecedent rule does not control here, because it would render related statutory provisions meaningless. Wofford, 201 P.3d at 394; Bunker, 144 Wash.App. at 418-19, 183 P.3d 1086. For example, RCW 10.99.040 requires that all no-contact orders state that a violation of the order is a crime. *488 This requirement would be meaningless and superfluous if only certain no-contact order violations were criminal. Wofford, 201 P.3d at 394.\n¶ 15 Furthermore, RCW 26.50.110(3) provides that \"violation of an order issued under this chapter, chapter 7.90, 10.99, 26.09, 26.10, 26.26, or 74.34 . . . shall also constitute contempt of court.\" (Emphasis added.) Thus, contempt is an additional remedy available to the victim of a no-contact order violation under the plain language of RCW 26.50.110(3). Allen's interpretation would leave the victim with only a contempt remedy; thus, his interpretation would render the \"also\" in RCW 26.50.110(3) meaningless. Wofford, 201 P.3d at 394.\n¶ 16 Allen's interpretation also would lead to illogical results, as we explained in Wofford:\nWofford maintains that a no-contact order violation is criminal only when RCW 10.31.100 requires arrest because of an act or threat of violence or an intrusion into a prohibited location. Under RCW 10.31.100(2)(a), an arrest is required if the restrained person commits acts or threats of violence or enters a residence or other place from which he or she is restrained. But an arrest is not required if the restrained person physically contacts a protected person who is outside the protected area. Thus, if Wofford's interpretation is correct, a restrained person who enters a prohibited place but has no contact with the victim commits a crime, but a person who has nonviolent contact with a protected person outside the protected place does not. The legislature could not have intended such an anomalous result.\nWofford, 201 P.3d at 394-95.\n¶ 17 Finally, we reject Allen's request to apply the rule of lenity to reach his interpretation of former RCW 26.50.110(1). The rule of lenity does not apply where statutes can be reconciled in a way that reflects the legislature's clear intent. Wofford, 201 P.3d at 395. Here, the legislature has stated that former RCW 26.50.110(1) was awkwardly drafted and that it has always intended to criminalize violation of domestic violence no-contact orders. Wofford, 201 P.3d at 395. To apply the rule of lenity would frustrate the legislature's intent, and we decline such application in this instance.\n¶ 18 The legislature amended RCW 26.50.110 to clarify that Allen's construction of the statute is incorrect. Even without that amendment, Allen's interpretation of the statute is implausible. He was properly convicted of violating a no-contact order.\n\nII. Double Jeopardy\n¶ 19 Allen next argues that his two convictions violate double jeopardy. Allen did not raise this argument at trial, but he may raise it for the first time on appeal because it implicates a manifest error affecting a constitutional right. State v. Turner, 102 Wash. App. 202, 206, 6 P.3d 1226 (2000).\n¶ 20 The double jeopardy provisions of the state and federal constitutions protect a defendant from being punished multiple times for the same offense. State v. Adel, 136 Wash.2d 629, 632, 965 P.2d 1072 (1998); U.S. Const. amend. V; Wash. Const. art. I, § 9. If Allen's two e-mails to Foley constitute just one criminal act, his two convictions violate double jeopardy by punishing him twice for the same offense.\n¶ 21 If a defendant is charged with violating the same statutory provision more than once, multiple convictions can withstand a double jeopardy challenge only if each is a separate \"unit of prosecution.\" Turner, 102 Wash.App. at 206, 6 P.3d 1226. The unit of prosecution for a crime may be an act or a course of conduct. State v. Root, 141 Wash.2d 701, 710, 9 P.3d 214 (2000). The first step in the unit of prosecution inquiry is to analyze the criminal statute. In re Pers. Restraint of Davis, 142 Wash.2d 165, 172, 12 P.3d 603 (2000). We review statutory construction de novo. State v. Berry, 129 Wash. App. 59, 69, 117 P.3d 1162 (2005).\n¶ 22 Both the former and current versions of RCW 26.50.110(1) make it unlawful for a person to violate any restraint provision contained in a no-contact order. See State v. Snapp, 119 Wash.App. 614, 625, 82 P.3d 252 (2004) (must prove a knowing violation of restraint provisions in no-contact order to *489 convict under RCW 26.50.110(1)). Thus, a violation constitutes a crime. The order in place here prohibited Allen from having either direct or indirect contact with Foley. Allen argues that the statute makes it unclear whether e-mails sent on different dates but read on the same date constitute two violations of that order, and he maintains that the rule of lenity requires this ambiguity to be resolved in his favor. Allen maintains that the only violation punishable under RCW 26.50.110(1) occurred when Foley read his e-mail messages.\n¶ 23 The State responds that a knowing violation under the statute rests on the defendant's rather than the victim's actions. We agree, noting that a defendant's three charges for violating a no-contact order were based on three different letters to the victim in State v. Parmelee, 108 Wash.App. 702, 705-06, 32 P.3d 1029 (2001). When the victim received or read the letters was not at issue; the facts showed that she did not even open some of them. Parmelee, 108 Wash. App. at 705, 32 P.3d 1029. Under less analogous facts, the defendant's action in setting a fire, rather than the damage that resulted, formed the unit of prosecution in State v. Westling, 145 Wash.2d 607, 612, 40 P.3d 669 (2002). \"Because he set only one fire that damaged three vehicles, there is factually only one unit of prosecution.\" Westling, 145 Wash.2d at 612, 40 P.3d 669; see also Davis, 142 Wash.2d at 174, 12 P.3d 603 (when defendant's two drug manufacturing operations were differentiated by time, location, or intended purpose, defendant could be convicted twice for possession with intent to manufacture without violating double jeopardy).\n¶ 24 Here, Allen sent Foley different e-mail messages on different days. The no-contact order prohibited him from contacting her in this manner, and his punishment for those violations should not depend on when Foley happened to read her e-mail. Allen's two convictions for violating a domestic violence no-contact order did not violate double jeopardy.\n\nIII. Offender Score\n¶ 25 Allen raises two challenges to his offender score. He contends that the trial court erred in including three of his five prior convictions in his offender score because the State provided insufficient proof of those prior convictions, and he also argues that the trial court erred in counting his two current offenses separately.[2]\n\nA. Prior Convictions\n\n¶ 26 Allen may raise this offender score challenge for the first time on appeal. Ford, 137 Wash.2d at 477-78, 973 P.2d 452. We review a sentencing court's calculation of an offender score de novo. State v. Bergstrom, 162 Wash.2d 87, 92, 169 P.3d 816 (2007). Generally, the trial court calculates an offender score by adding together the current offenses and the prior convictions. RCW 9.94A.589(1)(a). The State bears the burden of proving the existence of prior convictions by a preponderance of the evidence. In re Pers. Restraint of Cadwallader, 155 Wash.2d 867, 876, 123 P.3d 456 (2005). The best evidence to establish prior convictions is the production of a certified copy of the prior judgment and sentence. Bergstrom, 162 Wash.2d at 93, 169 P.3d 816. In determining a sentence, the trial court may rely on information that is admitted, acknowledged, or proved in a trial or at the time of sentencing. RCW 9.94A.530(2).\n¶ 27 Allen argues that the State failed to offer any proof of the three prior convictions at issue, and that his failure to object to the offender score it submitted did not constitute acknowledgement on his part. See Ford, 137 Wash.2d at 483, 973 P.2d 452 (acknowledgement does not encompass bare assertions by the State unsupported by the evidence). The State responds that Allen acknowledged his criminal history by failing to object to the statement of criminal history and sentencing manual worksheet it filed with the court, and by failing to object when the prosecuting attorney described his criminal history to the court at sentencing. See Former RCW 9.94A.530(2) (2007) (acknowledgement includes not objecting to information included in presentencing reports). Furthermore, Allen *490 did not object when both the State and the court referred to the 41- to 54-month sentencing range based on that history, and defense counsel implicitly accepted that range in arguing that even if Allen did not deserve a low-end sentence of 41 months, he should be considered a mid-range offender rather than one who deserved a 54-month sentence.\n¶ 28 The Washington Supreme Court recently decided, however, that a defendant's tacit acceptance of his criminal history does not constitute the acknowledgement needed to relieve the State of its obligation to establish criminal history by a preponderance of the evidence. State v. Mendoza, ___ Wash. ___, 205 P.3d 113, 120 (2009). If a defendant does not affirmatively acknowledge his criminal history and the State does not provide facts or information establishing that history, resentencing is required. Mendoza, 205 P.3d at 120.\n¶ 29 Here, Allen did not affirmatively acknowledge his criminal history and the State did not provide sufficient evidence to establish that its description of that history was accurate. See Mendoza, 205 P.3d at 120 (bare assertions as to criminal history do not substitute for the facts and information a sentencing court requires). Consequently, we must remand for resentencing, during which the State may submit additional evidence to prove Allen's criminal history. See Mendoza, 205 P.3d at 120 (where the defendant does not object at sentencing and the State has not had the opportunity to put on its evidence, it is appropriate to allow additional evidence at resentencing).\n\nB. Current Convictions\n\n¶ 30 Allen also argues that his offender score is incorrect because his two current offenses should have counted as one under the same criminal conduct rule. Allen's acceptance of the sentencing range based on the separate scoring of his offenses waives this argument on appeal. See State v. Nitsch, 100 Wash.App. 512, 519, 997 P.2d 1000 (2000). But, because he argues in the alternative that he received ineffective assistance of counsel when his attorney failed to raise the same criminal conduct issue during sentencing, we address the relevant law. See State v. Thomas, 109 Wash.2d 222, 225, 743 P.2d 816 (1987) (to prove ineffective assistance of counsel, defendant must show that his attorney's performance was deficient and that the deficiency prejudiced him).\n¶ 31 If two current offenses encompass the same criminal conduct, they count as one point in calculating the defendant's offender score. RCW 9.94A.589(1)(a); State v. Haddock, 141 Wash.2d 103, 108, 3 P.3d 733 (2000). The same criminal conduct rule requires two or more crimes to involve the same criminal intent, the same time and place, and the same victim. RCW 9.94A.589(1)(a). If one of these elements is missing, the offenses must be counted individually toward the offender score. Haddock, 141 Wash.2d at 110, 3 P.3d 733.\n¶ 32 Allen's two convictions for violating a no-contact order involved the same criminal intent and the same victim. He contends that because Foley opened his e-mail messages at the same time and place, the third element of the same criminal conduct rule is satisfied as well.\n¶ 33 But, having already held that Allen's offenses occurred when he sent the e-mails on different dates, we reject his current argument that they occurred when Foley read her e-mail. Consequently, Allen's two offenses did not involve the same time and place and do not constitute the same criminal conduct. He did not receive ineffective assistance when his attorney failed to raise this argument during sentencing.[3]\n\nIV. Statutory Maximum Sentence\n¶ 34 Allen argues here that the trial court unlawfully sentenced him beyond the statutory maximum when it imposed sentences of 50 months plus 9 to 18 months of community custody for each of his convictions. Because Mendoza requires us to remand for resentencing, we do not address this issue.\n*491 We affirm the defendant's convictions but remand for resentencing.\nHOUGHTON, P.J.\n¶ 35 I concur but write separately to explain my departure from my agreement with State v. Madrid, 145 Wash.App. 106, 192 P.3d 909 (2008). As the majority notes, \"different panels of our court have held that former RCW 26.50.110(1) [2000] is unambiguous and that a no-contact order violation is not a criminal offense unless the violation was one for which an arrest is required under RCW 10.31.100(2).\" Majority, at 486 n. 1. I served on one of those panels, concurring in Madrid. In State v. Wofford, 148 Wash. App. 870, 201 P.3d 389 (2009), I wrote a separate concurrence explaining my reconsideration of Madrid. For the reasons set forth here and in Wofford, I find no reversible error here and I affirm.\nHUNT, J. (concurring).\n¶ 36 I concur. But I write separately to explain my departure from my previous concurrences with contrary holdings in State v. Madrid, 145 Wash.App. 106, 192 P.3d 909 (2008), and State v. Hogan, 145 Wash.App. 210, 192 P.3d 915 (2008). Unlike Judge Houghton, also writing a separate concurrence, I did not sit on the panel that recently decided State v. Wofford, 148 Wash.App. 870, 201 P.3d 389 (2009), in which she similarly departed from her previous contrary position in Madrid.\n¶ 37 Judge Armstrong's majority opinions in both Wofford and the instant case, Allen, together with Division One's decision in Bunker,[4] persuade me (1) to consider the effect of the legislature's 2007 amendment and its accompanying findings on the meaning of former RCW 26.50.110(1) (2006)[5] as it applies here; and (2) to reconsider our earlier interpretation of this statute in Madrid and Hogan. Although I believe our \"corollary to the last antecedent rule\" analysis in Madrid and Hogan was grammatically correct, I also believe that Wofford and Bunker are jurisprudentially correct in relying on the 2007 amendment to former RCW 26.50.110(1) (2006), removing the cross reference to RCW 10.31.100(2), as indicative of the legislature's intent that all violations of no contact orders are gross misdemeanors.\n\nI. Madrid\n\n¶ 38 Unlike the panels in Wofford and Allen, the panel in Madrid did not consider whether the 2007 amendment shed light on the legislature's intent for former RCW 26.50.110(1) (2000), primarily because the issue was not before us.[6] Neither party in Madrid addressed whether the legislature's 2007 amendment had any effect on former RCW 26.50.110(1) (2000).[7] Thus, we focused our analysis on \"the criminal statutes in effect at time the crime was committed,\" i.e. the 2000 amendment's inclusion of the cross-reference to RCW 10.31.100(2). Madrid, 145 Wash.App. at 113, 192 P.3d 909. We noted the 2007 legislature's \"findings that it meant `to restore and make clear its intent that a willful violation of a no-contact provision of a court order is a criminal offense and shall be enforced accordingly to preserve the integrity and intent of the domestic violence act.' Laws of 2007, ch. 173, § 1.\" Id.\n¶ 39 But neither party argued, nor did we consider, that these 2007 amendment findings were an expression of the legislature's intent to depart from the general rule of applying the criminal statute in effect at the *492 time the crime was committed. Thus, we followed RCW 10.01.040.[8] and focused on\nwhether the legislature's addition of the cross reference to RCW 10.31.100(2) in 2000 made RCW 26.50.110(1) ambiguous such that we should (1) apply the rule of lenity, or (2) look outside the statute's plain meaning for legislative intent.\nMadrid, 145 Wash.App. at 114, 192 P.3d 909. Although both parties in Madrid argued that former RCW 26.50.110(1) was ambiguous, we held that the statute was not ambiguous. Therefore, we did not apply the rule of lenity or look \"look outside the statute's plain meaning for contrary legislative intent.\" Id.\n¶ 40 We then held:\nA careful reading of former RCW 26.50.110(1) shows that it is not ambiguous. According to the amended statute's plain language, the State could not convict an individual of a gross misdemeanor violation of a protection order under chapter 26.50 RCW unless the violation warranted an arrest under RCW 10.31.100(2)(a) or (b).\nMadrid, 145 Wash.App. at 114, 192 P.3d 909. As I have already noted, however, we did not address in Madrid the pivotal issue that undergirds the contrary holdings in Wofford, Bunker, and Allen.\n\nII. Hogan\n\n¶ 41 In Hogan, decided about the same time as Madrid, we focused on the \"corollary to the last antecedent rule\" of statutory construction based on Hogan's following argument:\n[F]ormer RCW 26.50.110(1) criminalized only violations \"for which an arrest is required under RCW 10.31.100(2)(a) or (b).\" CP at 30. Hogan based his argument on the legislature's placement of the comma immediately preceding this phrase. Referencing the corollary to the last antecedent rule and legislative history, Hogan convinced the trial court that the State failed to prove his violations were crimes under former RCW 26.50.110(1).\nHogan, 145 Wash.App. at 214, 192 P.3d 915. Hogan persuaded us, too.\n¶ 42 Both parties in Hogan filed their briefs before the effective date of the 2007 amendment. Thus, as in Madrid, in Hogan the State did not argue that the legislature's 2007 amendment shed light on its intended meaning of the interplay between former RCW 26.50.110(1) and RCW 10.31.100(2)(a) or (b). And, as in Madrid, our analysis in Hogan did not address this point. Instead, we focused on the history of former RCW 26.50.110(1) and the legislature's 2000 amendment, which added the cross-reference to RCW 10.31.100(2)(a) or (b), apparently in response to a 1996 Washington Supreme Court case, for which the United States Supreme Court denied certiorari in 2000.[9]\n\nIII. Bunker and Wofford\n\n¶ 43 Like Judge Quinn-Brintnall, who expressly agreed with Bunker in her dissent in Hogan, 145 Wash.App. at 221, 223, 192 P.3d 915,[10] I now also find persuasive the following *493 analysis in Bunker,[11] which Division One of our court filed several weeks before we filed Madrid and Hogan:\n[T]raditional principles of statutory construction also demonstrate that the legislature always intended to criminalize violations of domestic violence no-contact orders. Contending that this is not the case, Bunker and Williams make much of the \"last antecedent rule\" and the rule of lenity (albeit without ever articulating precisely how those rules apply to former RCW 26.50.110). In basing their statutory interpretation argument solely on these rules, however, Bunker and Williams ignore more fundamental principles of statutory construction.\nThe last antecedent rule states that \"unless a contrary intention appears in the statute, qualifying words and phrases refer to the last antecedent. . . . Yet the presence of a comma before the qualifying phrase is evidence the qualifier is intended to apply to all antecedents instead of only the immediately preceding one.\" City of Spokane v. Spokane County, 158 Wash.2d 661, 673, 146 P.3d 893 (2006) (internal citations and quotation marks omitted) (quoting Berrocal v. Fernandez, 155 Wash.2d 585, 593, 121 P.3d 82 (2005)). Thus, as applied to former RCW 26.50.110, this rule would appear to support Bunker's and Williams's contention that the phrase \"for which an arrest is required under RCW 10.31.100(2)(a) or (b)\" modifies every preceding clause, up to and including the phrase \"violation of the restraint provisions.\" Moreover, if the last antecedent rule were the sole principle of statutory construction[[12]] applicable to former RCW 26.50.110, the statute would indeed appear to allow the imposition of criminal penalties for only those no-contact order violations for which the legislature has made arrest mandatory.\nBy urging us to rely exclusively on the last antecedent rule, however, Bunker and Williams effectively encourage us to disregard the principle that \"[a]n act must be construed as a whole, considering all provisions in relation to one another and harmonizing all rather than rendering any superfluous.\" State v. George, 160 Wash.2d 727, 738, 158 P.3d 1169 (2007). This we will not do.\nEven a cursory examination of former RCW 26.50.110's other subsections reveals that the legislature did not intend for contempt of court sanctions to be the primary penalty for domestic violence no-contact order violations. See former RCW 26.50.110(3)[2000] (\"violation of an order issued under this chapter, chapter 7.90, 10.99, 26.09, 26.10, 26.26, or 74.34 RCW, or of a valid foreign protection order as defined in RCW 26.52.020, shall also constitute contempt of court\") (emphasis added). Moreover, Bunker and Williams fail to explain why, if the legislature had not intended to impose criminal penalties for violations of domestic violence no-contact orders, it has required that each and every no-contact order issued by a court proclaim that \"[v]iolation of this order is a criminal offense.\" RCW 10.99.040(4)(b). An appellate court \"may not interpret any part of a statute as meaningless or superfluous.\" State v. Lilyblad, 163 Wash.2d 1, 11, 177 P.3d 686 (2008). To give RCW 26.50.110(1) the construction that Bunker and Williams seek would be to do precisely that with respect to these provisions. Notwithstanding the last antecedent rule, the structure of the statute as a whole indicates that the legislature intended the phrase \"for which an arrest is required under RCW 10.31.100(2)(a) or (b)\" to modify the previous two complete clauses, respectively. That is, \"RCW 10.31.100(2)(a)\" refers to the clause \"or of a provision excluding the person from a residence, *494 workplace, school, or day care, or of a provision prohibiting a person from knowingly coming within, or knowingly remaining within, a specified distance of a location,\" while \"RCW 10.31.100(2) . . . (b)\" refers to \"or of a provision of a foreign protection order specifically indicating that a violation will be a crime.\" Former RCW 26.50.110 [2000].[[13]]\n. . . .\nThe legislature has amended RCW 26.50.110 explicitly to clarify that the construction of the statute that Bunker and Williams seek is incorrect. That amendment applies retroactively to Bunker and Williams because it was for the sole purpose of removing a statutory ambiguity, and changed no substantive law.\nBunker, 144 Wash.App. at 418-420, 183 P.3d 1086.[14] In Wofford, we relied heavily on the above analysis in Bunker. In turn, we rely heavily on Wofford here in Allen.\n\nIV. 2007 Amendment\n¶ 44 As we noted in Wofford, as long as there has not been an intervening contradictory judicial construction of a statute, we may look to a statute's subsequent history to help determine the legislature's intent where, as here, the legislature has indicated in the subsequent legislation that the new legislation was intended to clarify the previous version of the statute. Wofford, 148 Wash. App. at 879, 201 P.3d 389 (citing Woods v. Bailet, 116 Wash.App. 658, 665, 67 P.3d 511 (2003)); see also Rozner v. City of Bellevue, 116 Wash.2d 342, 349, 804 P.2d 24 (1991); State v. Posey, 130 Wash.App. 262, 274, 122 P.3d 914 (2005), aff'd in relevant part, reversed in part on other grounds, 161 Wash.2d 638, 167 P.3d 560 (2007); Littlejohn Constr. Co. v. Dep't of Labor & Indus., 74 Wash.App. 420, 427, 873 P.2d 583 (1994).\n¶ 45 We filed our decisions in Madrid and Hogan after, not before, the 2007 amendments; thus, the 2007 amendments did not contravene any appellate decisions of which I am aware. Therefore, under Posey, (1) in Madrid, we should have considered the legislature's 2007 amendment to the statute if the parties had asserted its removal of the cross-reference to RCW 10.31.100(2) as controlling; and (2) in Hogan, instead of relying on the legislature's 2000 amendment, which added the cross-reference to RCW 10.31.100(2), we should have considered the 2007 amendment, which removed the cross-reference in order to \"restore and make clear its intent that a willful violation of a no-contact provision of a court order is a criminal offense.\" Madrid, 145 Wash.App. at 113, 192 P.3d 909.\n¶ 46 Accordingly, I now depart from Madrid and Hogan, concur in Judge Armstrong's analysis here, join him in holding that under RCW 26.50.110(1) any willful violation of a no-contact provision of a court order is a criminal offense, and affirm.[15]\nNOTES\n[1] We recognize that different panels of our court have held that former RCW 26.50.110(1) is unambiguous and that a no-contact order violation is not a criminal offense unless the violation was one for which an arrest is required under RCW 10.31.100(2). See State v. Madrid, 145 Wash. App. 106, 108, 192 P.3d 909 (2008); State v. Hogan, 145 Wash.App. 210, 212, 192 P.3d 915 (2008). For the reasons stated herein, we disagree with the analysis in those cases.\n[2] Allen stipulated to the remaining two prior convictions.\n[3] Having addressed Allen's earlier issues on the merits, we need not consider his alternative claim that he received ineffective assistance of counsel when his attorney failed to raise these issues below.\n[4] State v. Bunker, 144 Wash.App. 407, 418-20, 183 P.3d 1086 (2008).\n[5] We note that the legislature also amended this statute in 2006. See Laws of 2006, ch. 138 § 25. The amendments are not relevant here.\n[6] We noted only that the 2007 legislature \"removed the cross-reference to RCW 10.31.100(2), which Madrid relies upon here. See Laws of 2007, ch. 173, § 2.\" Madrid, 145 Wash.App. at 113, 192 P.3d 909.\n[7] See Madrid, 145 Wash.App. at 113, n. 10, 192 P.3d 909. Instead, Madrid focused on the rule of lenity. And the State argued that \"the legislature created an unintended statutory ambiguity when it amended several domestic violence statutes in 2000, including adding the cross reference in former RCW 26.50.110(1) to RCW 10.31.100(2).\" Madrid, 145 Wash.App. at 113, 192 P.3d 909.\n[8] Madrid, 145 Wash.App. at 113, 192 P.3d 909.\n[9] We noted in Hogan:\n\nOur Supreme Court interpreted an even earlier version of RCW 26.50.110 (1996) in State v. Chapman, 140 Wash.2d 436, 448, 998 P.2d 282, cert. denied, 531 U.S. 984, 121 S. Ct. 438, 148 L. Ed. 2d 444 (2000); but the legislature amended RCW 25.50.110 in 2000. Before this amendment, violation of a domestic violence no-contact order under former RCW 10.99.050(2) (1997) was a gross misdemeanor and a third violation was a felony. But in 2000, the legislature amended the statute, moving most of the language to RCW 26.50.110 and adding the \"for which an arrest is required under RCW 10.31.100(2)(a) or (b)\" language at issue in this case. Laws of 2000, ch. 119 § 24. Accordingly, Chapman, is no longer binding precedent on this court.\nBefore we continue our analysis, we note that the legislature unanimously amended RCW 26.50.110(1) during the 2007 session. See Laws of 2007, ch. 173. The legislature removed the cross-reference to RCW 10.31.100(2), which Hogan relies on here. See Laws of 2007, ch. 173, § 2. The legislature also stated in its findings that it meant \"to restore and make clear its intent that a willful violation of a no-contact provision of a court order is a criminal offense and should be enforced accordingly to preserve the integrity and intent of the domestic violence act.\" Laws of 2007, ch. 173, § 1.\nHogan, 145 Wash.App. at 215, 192 P.3d 915 (footnote omitted).\n[10] Because the Hogan majority found the statute unambiguous, we did not address Bunker or its analysis. Hogan, 145 Wash.App. at 218 n. 4, 192 P.3d 915. Nor did we address Bunker in Madrid.\n[11] The Washington Supreme Court recently granted review of Bunker. 165 Wash.2d 1003, 198 P.3d 512 (2008). As of the date we filed this opinion, we are unaware of whether Bunker has been set for oral argument.\n[12] I acknowledge that Division One's characterization of the \"last antecedent rule\" as a principle of statutory construction differs somewhat from my characterization of the rule as a \"grammatical rule.\" This difference in characterization does not affect my analysis and agreement with Division One that we must look to the legislature's express intent that its 2007 amendment \"clarify\" RCW 26.50.110.\n[13] Holding that the rule of lenity did not apply, the Bunker court ruled:\n\nThe rule of lenity is similarly unavailing to the argument advanced by Bunker and Williams. \"[U]nder the rule of lenity, where two possible statutory constructions are permissible, we construe the statute strictly against the State in favor of a criminal defendant.\" State v. B.E.K., 141 Wash.App. 742, 745, 172 P.3d 365 (2007) (citing State v. Gore, 101 Wash.2d 481, 485-86, 681 P.2d 227 (1984)). \"But the rule of lenity does not apply where statutes can be reconciled in a way that reflects the legislature's clear intent.\" State v. R.J., 121 Wash. App. 215, 217 n. 2, 88 P.3d 411 (2004). Here, every indication is that former RCW 26.50.110 was merely awkwardly drafted, and that the legislature always intended to criminalize violations of domestic violence no-contact orders. This being the case, we will not apply the rule of lenity in frustration of the legislature's intent.\n144 Wash.App. at 420, 183 P.3d 1086.\n[14] I have included this extensive quotation from Bunker because I could not improve its persuasive value by trying to paraphrase it or by including shorter excerpts.\n[15] As Judge Quinn-Brintnall noted in her dissent in Hogan, it is difficult to imagine that the legislature intended former RCW 26.50.110(1) to criminalize an inmate's contact through a glass partition with the party protected by the no-contact order, who came to visit him in jail. Here, it is difficult to imagine that the legislature intended two allegedly inadvertent emails to the protected party to trigger 52 months imprisonment for Allen. Nevertheless, these choices are for the legislature to make, not the courts; and the legislature has spoken in its 2007 amendment, before we rendered our decisions on this issue.\n\n",
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| Court of Appeals of Washington | Court of Appeals of Washington | SA | Washington, WA |
248,365 | Enoch, Hastings, Major | 1959-07-22 | false | national-labor-relations-board-v-local-135-international-brotherhood-of | null | National Labor Relations Board v. Local 135, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Afl-Cio | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL 135, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL-CIO, Respondent | Thomas J. McDermott, Associate Gen. Counsel, Melvin Pollack, Atty., Jerome D. Fenton, Gen. Counsel, Marcel MalletPrevost, Asst. Gen. Counsel, Norton J. Come, Deputy Asst. Gen. Counsel, N. L. R. B., Washington, D. C., for petitioner., Edward J. Fillenwarth, Indianapolis, Ind., Gregg, Fillion, Fillenwarth & Hughes, Indianapolis, Ind., of counsel, for respondent. | null | null | null | null | null | null | null | Rehearing Denied July 22, 1959. | null | null | 11 | Published | null | <parties data-order="0" data-type="parties" id="b918-6">
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL 135, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL-CIO, Respondent.
</parties><br><docketnumber data-order="1" data-type="docketnumber" id="b918-8">
No. 12541.
</docketnumber><br><court data-order="2" data-type="court" id="b918-9">
United States Court of Appeals Seventh Circuit.
</court><br><decisiondate data-order="3" data-type="decisiondate" id="b918-10">
June 17, 1959.
</decisiondate><br><otherdate data-order="4" data-type="otherdate" id="b918-11">
Rehearing Denied July 22, 1959.
</otherdate><br><attorneys data-order="5" data-type="attorneys" id="b919-4">
<span citation-index="1" class="star-pagination" label="871">
*871
</span>
Thomas J. McDermott, Associate Gen. Counsel, Melvin Pollack, Atty., Jerome D. Fenton, Gen. Counsel, Marcel MalletPrevost, Asst. Gen. Counsel, Norton J. Come, Deputy Asst. Gen. Counsel, N. L. R. B., Washington, D. C., for petitioner.
</attorneys><br><attorneys data-order="6" data-type="attorneys" id="b919-5">
Edward J. Fillenwarth, Indianapolis, Ind., Gregg, Fillion, Fillenwarth & Hughes, Indianapolis, Ind., of counsel, for respondent.
</attorneys><br><p data-order="7" data-type="judges" id="b919-6">
Before MAJOR, HASTINGS and ENOCH, Circuit Judges.
</p> | [
"267 F.2d 870"
]
| [
{
"author_str": "Major",
"per_curiam": false,
"type": "010combined",
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"download_url": "http://bulk.resource.org/courts.gov/c/F2/267/267.F2d.870.12541_1.html",
"author_id": null,
"opinion_text": "267 F.2d 870\n NATIONAL LABOR RELATIONS BOARD, Petitioner,v.LOCAL 135, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL-CIO, Respondent.\n No. 12541.\n United States Court of Appeals Seventh Circuit.\n June 17, 1959.\n Rehearing Denied July 22, 1959.\n \n Thomas J. McDermott, Associate Gen. Counsel, Melvin Pollack, Atty., Jerome D. Fenton, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Norton J. Come, Deputy Asst. Gen. Counsel, N. L. R. B., Washington, D. C., for petitioner.\n Edward J. Fillenwarth, Indianapolis, Ind., Gregg, Fillion, Fillenwarth & Hughes, Indianapolis, Ind., of counsel, for respondent.\n Before MAJOR, HASTINGS and KNOCH, Circuit Judges.\n MAJOR, Circuit Judge.\n \n \n 1\n This case is here upon the petition of the National Labor Relations Board for enforcement of its order issued against respondent Union on March 14, 1957, pursuant to Sec. 10(c) of the National Labor Relations Act as amended (61 Stat. 136, 29 U.S.C.A. § 151 et seq.). This court has jurisdiction under Sec. 10 (e) of the Act, the unfair labor practices found by the Board having occurred in Indianapolis, Indiana, within this judicial circuit. The Board's findings of fact, conclusions of law and order are reported at 117 N.L.R.B. 635. The Board found that the Union violated Sec. 8(b) (4) (A) and (B) of the Act by inducing and encouraging the employees of concerns doing business with Capital Paper Company and Consolidated Sales, Inc. (herein jointly referred to as Capital), not to handle Capital freight, with the objective of disrupting Capital's business relations with these concerns and of forcing Capital to deal with the Union as the collective bargaining representative of its employees, even though it had not been certified by the Board.\n \n \n 2\n The two concerns jointly referred to as Capital constitute a unified enterprise engaged in the wholesale distribution of paper products, building materials, appliances and other items. Their purchases and sales in interstate commerce are substantial. Thus, no jurisdictional issue is presented.\n \n \n 3\n The contested issues are two: (1) whether the Board properly found that the Union was responsible for stewards as agents of the Union, and (2) whether the Board's order properly enjoins the Union from violating Sec. 8(b) (4) (A) and (B), not only as to Capital but as to all other employers. Relative to the first issue, respondent urges that the stewards were not its agents, that it was not responsible for their conduct and activities and, predicated upon this contention, that testimony of statements made by such stewards was hearsay and therefore improperly admitted by the Trial Examiner.\n \n \n 4\n A detailed statement or analysis of the evidentiary facts relied upon by the Board in support of its decision would unduly prolong this opinion and, in our judgment, would serve no useful purpose. A careful study of the evidence, oral and documentary, is convincing that the Board's findings are supported and that its order is proper and should be enforced. We shall, therefore, attempt to limit our discussion to some of the more salient aspects of the situation.\n \n \n 5\n In December, 1955, respondent began an organizational campaign among the employees of Capital. On December 16, it requested recognition. This was denied by Capital and, on December 19, the Union filed a representation petition with the Board on which a hearing was held January 10, 1956. On February 13, the Union established a picket line at the premises of Capital. On the following day, the Board issued its Decision and Direction of Election in the representation case. On February 23, respondent sought to withdraw its representation petition, which request the Board denied by an order dated February 29. On the same day, Capital filed the charge upon which the complaint in the present proceeding is based. On April 13, the United States District Court for the Southern District of Indiana entered an order enjoining respondent from engaging in conduct violative of Sec. 8(a) (4) (A) and (B) of the Act, pending adjudication before the Board. At the time of the hearing before the Trial Examiner, respondent was still picketing the premises of Capital.1\n \n \n 6\n Swiftly following the establishment of the picket line at the premises of Capital, a series of events occurred which in the main constitute the basis for the unfair labor practices with which respondent is charged. In summary, these events consisted of a refusal on the part of the stewards and other employees of five named secondary employers, all customers of Capital, to accept or unload goods and merchandise consigned to such secondary employers by Capital. The five named secondary employers are Allied Grocers, Southern Motor Express, Inc., McDaniel Freight Lines, Inc., Motor Freight Corporation and R. D. Motor Express Company. The employees of all of these secondary employers were members of respondent Union. Refusals to receive freight from Capital at the premises of each followed a same or similar pattern. They were made or participated in by stewards, assistant stewards and other employees. The reasons generally assigned for such refusals were that the shipments from Capital \"had come through a picket line,\" were \"unfair freight\" and \"hot goods.\" On several occasions a driver of a Capital truck would insist that the shipment should be accepted because there was no legal strike at Capital. Thereupon, a steward would telephone the Union hall (respondent's), where he was told that there was a strike and picket line at Capital. The refusal to accept a shipment followed. There was testimony by one witness that he was told by the dock employees at McDaniel Freight Lines that they refused to handle the freight \"because the Union had advised them not to.\" On cross-examination, however, this witness explained this testimony with the statement, \"Being a former Union member I knew that in the contract there is a `hot goods' clause that declares that `unfair goods' does not have to be handled by the Union member.\"\n \n \n 7\n A revealing incident is shown in connection with the refusal to receive Capital freight at the premises of R. D. Motor Express Company. There, employee Ervin called the Union hall to ascertain if there was a strike at Capital. Immediately afterward he stated, \"I can't handle that. * * * I might get hell if I did or if I don't.\" In response to an inquiry by a representative of management as to why the shipment would not be accepted, Ervin stated, \"Well, I just called the hall, and he said it was `hot goods.'\" At that time Ervin signed the following statement, \"This is to certify that Capital Paper Co. offered shipments this date for transport to Muncie and Anderson, Indiana and shipments were refused at this dock due to the fact that Capital Paper is on strike. Union Hall was called and approval given to refusal.\" Respondent's officials, including its president, when advised of the written statement which Ervin had made, became much concerned. They demanded its return and in order to obtain same went so far as to cause a work stoppage at the employer's plant.\n \n \n 8\n From the circumstances related and others shown by the record, the Trial Examiner concluded that the stewards \"were acting within the scope of their authority and that their conduct was likewise binding upon the Union.\" This conclusion of the Trial Examiner and his findings in its support were approved by the Board, and we think properly so.\n \n \n 9\n Respondent, in contending that the stewards were not its agents or that it was not responsible for their activities, relies, erroneously we think, upon common law principles. Section 2(13) of the Act provides: \"In determining whether any person is acting as an `agent' of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling.\"\n \n \n 10\n In N. L. R. B. v. International Brotherhood of Teamsters, etc., 2 Cir., 228 F.2d 83, 84, the court in discussing a similar situation stated:\n \n \n 11\n \"* * * there is substantial evidence to support the findings of the Board, [citing case] that Parks was acting with the knowledge and acquiescence of the Union and that he had implied authority to do what he did.\"\n \n \n 12\n See also N. L. R. B. v. Acme Mattress Co., Inc., 7 Cir., 192 F.2d 524, 528, and N. L. R. B. v. International Brotherhood of Teamsters, etc., 3 Cir., 249 F.2d 292.\n \n \n 13\n Respondent, in denying responsibility for the acts of the stewards, places great reliance upon a decision of this court in N. L. R. B. v. P. R. Mallory & Co., Inc., et al., 7 Cir., 237 F.2d 437. It is true in that case we held that a minor group of stewards who led a movement to compel the discharge of an employee because of non-membership in the Union were not acting on behalf of the Union. Our conclusion was based largely on the undisputed fact that the stewards were acting contrary to Union policy and to the express directions which they had received from the Union. In contrast, the stewards in the instant situation were acting in conformity with the policy fixed and established by the Union.\n \n \n 14\n Respondent Union had a contract with each of the secondary employers2 which contained a so-called \"hot cargo\" clause. These agreements provided in part:\n \n \n 15\n \"It shall not be a violation of this Agreement and it shall not be cause for discharge if any employee or employees refuse to go through the picket line of a Union or refuse to handle unfair goods. * * * The Union and its members, individually and collectively, reserve the right to refuse to handle goods from or to any firm, or truck which is engaged or involved in any controversy with this or any other Union; and reserve the right to refuse to accept freight from, or to make pickups from, or deliveries to establishments where picket lines, strikes, walkouts or lockouts exist.\"\n \n \n 16\n Thus it appears that the Union by these agreements negotiated by it on behalf of its members definitely established a policy against the acceptance of \"hot cargo\" shipments. More than that, it seems that the Union is in a poor position to disclaim responsibility for the acts of its members authorized by an employment agreement entered into at the behest of the Union.\n \n \n 17\n In the hearing before the Trial Examiner, these \"hot cargo\" agreements which the Union had with the secondary employers were strongly relied upon in defense of the unfair labor practices charged. In this connection it is significant that Board member Murdock dissented from the Decision and Order of the Board, not because respondent was not responsible for the acts of the stewards in refusing to accept shipments from Capital but solely on the ground that it was protected by reason of the \"hot cargo\" agreements with the secondary employers. He stated, \"I believe that the Respondent could lawfully instruct its members to refrain from handling the Charging Party's freight.\" This defense, however, is no longer available to respondent by reason of the recent decision of the Supreme Court in Local 1976, United Brotherhood of Carpenters, etc. v. N. L. R. B., 357 U.S. 93, 78 S. Ct. 1011, 2 L. Ed. 2d 1186. In connection with this decision, it should be noted that in the instant case none of the secondary employers consented to the refusal of the stewards and other Union members to accept shipments from Capital. On the other hand, they urged, without success, that the employees receive such shipments.\n \n \n 18\n Our agreement with the Trial Examiner and the Board, that the stewards and other Union members in refusing to accept shipments from Capital were acting in conformity with Union policy and for and on its behalf, dissipates respondent's contention relative to the admission of hearsay testimony.\n \n \n 19\n We agree with the Board's decision that the objective of respondent's conduct was to force the various secondary employers to cease doing business with Capital. More than that, in view of the circumstances relative to the representation proceedings initiated before the Board by respondent and the occurrences at the premises of Capital as heretofore set forth, we agree with the Board that another objective of respondent was to force Capital to recognize respondent as the bargaining agent for Capital's employees. This conclusion is a reasonable if not an inescapable inference from the circumstances related.\n \n \n 20\n The Board directed respondent to cease and desist its unfair labor practices not only as to the employers directly involved in the instant proceeding but as to \"any other employer.\" Respondent insists that such order is too broad and should be modified, based upon the premise that there was no proof of any unfair labor practice as to any other employer and that it offered to prove that many secondary employers continued doing business with Capital.\n \n \n 21\n The Board's order followed the recommendations of the Trial Examiner. The latter in his report stated:\n \n \n 22\n \"Having found that the Respondent has violated Section 8(b) (4) (A) and (B) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. In determining the scope of the recommended order it is relevant to note that in three other cases within the recent past the Board found that the Respondent here involved violated Section 8 (b) (4). Local Union No. 135, affiliated with International Brotherhood of Teamsters (Irvin J. Cooper, et al.), 101 N.L.R.B. 1284; Local Union No. 135, affiliated with International Brotherhood of Teamsters (Hoosier Petroleum Company, Inc.), 106 N.L.R.B. 629, enfd., 7 Cir., 212 F.2d 216 (C.A.7); Local Union No. 135, affiliated with International Brotherhood of Teamsters (Marsh Foodliners Inc.), 114 NLRB No. 108.\"\n \n \n 23\n In N. L. R. B. v. Mackay Radio & Telegraph Co., 304 U.S. 333, 348, 58 S. Ct. 904, 912, 82 L. Ed. 1381, the court stated:\n \n \n 24\n \"* * * the relief which the statute empowers the Board to grant is to be adapted to the situation which calls for redress.\"\n \n \n 25\n In N. L. R. B. v. Express Publishing Co., 312 U.S. 426, 436, 61 S. Ct. 693, 700, 85 L. Ed. 930, the court stated:\n \n \n 26\n \"Having found the acts which constitute the unfair labor practice the Board is free to restrain the practice and other like or related unlawful acts.\"\n \n \n 27\n The Board is authorized to restrain other violations, the danger of whose commission in the future is to be anticipated from conduct in the past. N. L. R. B. v. United Mine Workers, 6 Cir., 195 F.2d 961, 963, and cases therein cited.\n \n \n 28\n As pointed out by the Trial Examiner, this is not an isolated case so far as the Board is concerned. It has previously considered and decided that respondent committed the same or similar unfair labor practices. Respondent's request that the order be modified is denied.\n \n \n 29\n The Board's petition for enforcement of its order is granted and a decree will be entered accordingly.\n \n \n \n Notes:\n \n \n 1\n Only 17 of the 67 employees of Capital joined in the strike called by respondent and, in an election subsequently held by the Board, respondent lost by a vote of 4 to 39\n \n \n 2\n Respondent's agreement with Allied Grocers was not offered in evidence\n \n \n ",
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| Seventh Circuit | Court of Appeals for the Seventh Circuit | F | USA, Federal |
161,664 | Brown, Kelly, McKay | 2001-10-24 | false | burlington-northern-santa-fe-railway-co-v-burton | Burton | Burlington Northern & Santa Fe Railway Co. v. Burton | BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY; Union Pacific Railroad Company, Plaintiffs—Appellees, and United States of America, Plaintiff-Intervenor-Appellee, v. R.M. “Johnnie” BURTON, in Her Official Capacity as Director, Wyoming Department of Revenue, Defendant-Appellant. Burlington Northern and Santa Fe Railway Company; Union Pacific Railroad Company, Plaintiffs-Appellees, and United States of America, Plaintiff-Intervenor-Appellee, v. Sleeter Dover, in His Official Capacity as Director of the Wyoming Department of Transportation, Defendant-Appellant | Submitted on the briefs.*, James W. McBride and Anne M. Stolee, Baker, Donelson, Bearman & Caidwell, Washington, D.C. and W. Perry Dray, Dray, Thompson & Dyekman, P.C., Cheyenne, Wyoming, for Plaintiffs-Appellees., Stuart E. Schiffer, Acting Assistant Attorney General, David D. Freudenthal, United States Attorney, Mark B. Stern and Stephanie R. Marcus, Department of Justice, Washington, D.C., for Plaintiff-Intervenor-Appellee., Gay Woodhouse, Attorney General, Vicci M. Colgan, Chief Deputy Attorney General, Michael Dinnerstein and Harold E. Meier, Cheyenne, Wyoming, for Defendants-Appellants. | null | null | null | null | null | null | null | null | null | null | 12 | Published | null | <parties id="b966-11">
BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY; Union Pacific Railroad Company, Plaintiffs—Appellees, and United States of America, Plaintiff-Intervenor-Appellee, v. R.M. “Johnnie” BURTON, in her official capacity as Director, Wyoming Department of Revenue, Defendant-Appellant.
<span citation-index="1" class="star-pagination" label="943">
*943
</span>
Burlington Northern and Santa Fe Railway Company; Union Pacific Railroad Company, Plaintiffs-Appellees, and United States of America, Plaintiff-Intervenor-Appellee, v. Sleeter Dover, in his official capacity as Director of the Wyoming Department of Transportation, Defendant-Appellant.
</parties><br><docketnumber id="b967-8">
No. 00-8087, 00-8088.
</docketnumber><br><court id="b967-9">
United States Court of Appeals, Tenth Circuit.
</court><br><decisiondate id="b967-10">
Oct. 24, 2001.
</decisiondate><br><attorneys id="b968-3">
<span citation-index="1" class="star-pagination" label="944">
*944
</span>
Submitted on the briefs.
<a class="footnote" href="#fn*" id="fn*_ref">
*
</a>
</attorneys><attorneys id="AvS">
James W. McBride and Anne M. Stolee, Baker, Donelson, Bearman & Caidwell, Washington, D.C. and W. Perry Dray, Dray, Thompson & Dyekman, P.C., Cheyenne, Wyoming, for Plaintiffs-Appellees.
</attorneys><attorneys id="Av50">
Stuart E. Schiffer, Acting Assistant Attorney General, David D. Freudenthal, United States Attorney, Mark B. Stern and Stephanie R. Marcus, Department of Justice, Washington, D.C., for Plaintiff-Intervenor-Appellee.
</attorneys><attorneys id="AFo5">
Gay Woodhouse, Attorney General, Vicci M. Colgan, Chief Deputy Attorney General, Michael Dinnerstein and Harold E. Meier, Cheyenne, Wyoming, for Defendants-Appellants.
</attorneys><judges id="Atd">
Before, KELLY, Circuit Judge, MCKAY, Senior Circuit Judge, and BROWN, Senior District Judge.
<a class="footnote" href="#fn**" id="fn**_ref">
**
</a>
</judges><div class="footnotes"><div class="footnote" id="fn*" label="*">
<a class="footnote" href="#fn*_ref">
*
</a>
<p id="Aav">
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1(G). The cause therefore is ordered submitted without oral argument.
</p>
</div><div class="footnote" id="fn**" label="**">
<a class="footnote" href="#fn**_ref">
**
</a>
<p id="AQlu">
The Honorable Wesley E. Brown, Sr., Senior District Judge, United States District Court-District of Kansas, sitting by designation.
</p>
</div></div> | [
"270 F.3d 942"
]
| [
{
"author_str": "Kelly",
"per_curiam": false,
"type": "010combined",
"page_count": 11,
"download_url": "http://www.ca10.uscourts.gov/opinions/00/00-8087.pdf",
"author_id": null,
"opinion_text": "270 F.3d 942 (10th Cir. 2001)\n BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY; UNION PACIFIC RAILROAD COMPANY, Plaintiffs - Appellees,andUNITED STATES OF AMERICA, Plaintiff-Intervenor - Appellee,vs.R.M. \"JOHNNIE\" BURTON, in her official capacity as Director, Wyoming Department of Revenue, Defendant - Appellant.BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY; UNION PACIFIC RAILROAD COMPANY, Plaintiffs - Appellees,andUNITED STATES OF AMERICA, Plaintiff-Intervenor - Appellee,vs.SLEETER DOVER, in his official capacity as Director of the Wyoming Department of Transportation, Defendant - Appellant.\n Nos. 00-8087 and 00-8088\n UNITED STATES COURT OF APPEALS TENTH CIRCUIT\n October 24, 2001\n \n APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING (D.C. Nos. 00-CV-108-J and 00-CV-109-J)Submitted on the briefs:*\n James W. McBride and Anne M. Stolee, Baker, Donelson, Bearman & Caldwell, Washington, D.C. and W. Perry Dray, Dray, Thompson & Dyekman, P.C., Cheyenne, Wyoming, for Plaintiffs - Appellees.\n Stuart E. Schiffer, Acting Assistant Attorney General, David D. Freudenthal, United States Attorney, Mark B. Stern and Stephanie R. Marcus, Department of Justice, Washington, D.C., for Plaintiff-Intervenor - Appellee.\n Gay Woodhouse, Attorney General, Vicci M. Colgan, Chief Deputy Attorney General, Michael Dinnerstein and Harold E. Meier, Cheyenne,Wyoming, for Defendants - Appellants.\n Before, KELLY, Circuit Judge, MCKAY, Senior Circuit Judge, and BROWN, Senior District Judge.**\n KELLY, Circuit Judge.\n \n \n 1\n Defendants-Appellants R.M. \"Johnnie\" Burton, Director, Wyoming Department of Revenue, and Sleeter Dover, Director, Wyoming Department of Transportation, (\"the State\") appeal from the district court's order denying their motions to dismiss. We have jurisdiction over these interlocutory appeals pursuant to 28 U.S.C. 1291 and the collateral order doctrine. Innes v. Kan. State Univ., 184 F.3d 1275, 1277 (10th Cir. 1999)(citing Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 147 (1993)(holding that states may take advantage of the collateral order doctrine to appeal district court orders denying claims of Eleventh Amendment immunity)).\n \n \n 2\n Because \"we are bound by the precedent of prior panels absent en banc reconsideration or a superseding contrary decision by the Supreme Court,\" United States v. Morris, 247 F.3d 1080, 1085 (10th Cir. 2001)(quoting In re Smith, 10 F.3d 723, 724 (10th Cir. 1993)), we find Union Pacific Railroad Co. v. Utah, 198 F.3d 1201 (10th Cir. 1999) to be controlling and affirm the district court's order denying the motions to dismiss.\n \n Background\n \n 3\n Plaintiffs-Appellees Burlington Northern and Santa Fe Railway Company and Union Pacific Railroad Co. (\"the Railroads\") filed two separate complaints challenging the imposition by the State of Wyoming, through Ms. Burton, of a tax on the transportation of coal (No. 00-8087) and, through Mr. Dover, of a tax on railroad train miles and grade crossings (No. 00-8088).1 Wyo. Stat. Ann. 39-21-103 (Michie 2001)(coal transportation tax); Wyo. Stat. Ann. 39-20-104 (Michie 2001)(train mile tax). The Railroads based their challenge on Section 306 of the Railroad Revitalization and Regulatory Reform Act of 1976 (\"the 4-R Act\"). See 49 U.S.C. 11501. The 4-R Act prohibits states from discriminating by more than 5% in taxing rail transportation property and rail carriers. It also gives federal courts concurrent jurisdiction to hear 4-R Act cases and power to grant injunctive relief. The State moved to dismiss the complaints for lack of subject matter jurisdiction claiming that the 4-R Act is an invalid attempt by Congress to abrogate state sovereign immunity under the Eleventh Amendment. The State argues that this court's precedent in Union Pacific Railroad Co. v. Utah, 198 F.3d 1201 (10th Cir. 1999), is not controlling because of changes made in Eleventh Amendment jurisprudence by the United States Supreme Court in its subsequent cases Kimel v. Florida Board of Regents, 528 U.S. 62 (2000), and Univ. of Alabama v. Garrett, 531 U.S. 356, 121 S. Ct. 955 (2001). We review the denial of a state's claim of Eleventh Amendment immunity from suit in federal court de novo. Innes v. Kansas State Univ., 184 F.3d 1275, 1277 (10th Cir. 1999).\n \n Discussion\n \n 4\n In Union Pacific Railroad Co. v. Utah, 198 F.3d 1201 (10th Cir. 1999), the Union Pacific Railroad Company and the Utah Railway Company both sought relief against the State of Utah from an allegedly discriminatory property tax under the 4-R Act. The State moved to dismiss on the basis of Eleventh Amendment immunity and the district court granted the motion. The plaintiffs appealed and this court reversed the dismissal holding that the 4-R Act was a valid abrogation of Eleventh Amendment immunity. In reaching its decision in Union Pacific, this court relied on Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996), City of Boerne v. Flores, 521 U.S. 507 (1997), and Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 527 U.S. 627 (1999). Subsequent to the issuance of Union Pacific, the Supreme Court decided Kimel v. Florida Board of Regents, 528 U.S. 62 (2000), and Univ. of Alabama v. Garrett, 531 U.S. 356, 121 S. Ct. 955 (2001). Unless the Supreme Court has changed the appropriate test for determining what is a valid abrogation of Eleventh Amendment immunity in Kimel or Garrett, Union Pacific is controlling precedent and the denial of the motions to dismiss must be affirmed. See United States v. Morris, 247 F.3d 1080, 1085 (10th Cir. 2001)(quoting In re Smith, 10 F.3d 723, 724 (10th Cir. 1993)).\n \n \n 5\n First, relying on Florida Prepaid, this court reiterated in Union Pacific that Congress must make an \"unmistakably clear expression of congressional intent to abrogate state immunity,\" Union Pacific, 198 F.3d at 1206, and found that Congress had done so in the language of the 4-R Act. Id. at 1205-06. Kimel and Garrett applied this same standard. See Kimel, 528 U.S. at 73; Garrett, 531 U.S. at 363, 121 S. Ct. at 962. In this action, neither party has argued that Congress did not express its intention to abrogate state immunity.\n \n \n 6\n Second, relying on Seminole Tribe, this court noted that \"Congress may only abrogate state immunity when it acts pursuant to the legislative authority granted to it by section 5 of the Fourteenth Amendment.\" Union Pacific, 198 F.3d at 1203. Pointing out that the Supreme Court had \"left undisturbed the principle that congressional action may be upheld under 5 even when Congress does not expressly rely on that provision as the source of its abrogation power,\" this court concluded that the 4-R Act was a valid exercise of congressional authority pursuant to 5 of the Fourteenth Amendment despite Congress' failure to expressly rely on it. Id. at 1203-04. In this action, the State argues that the 4-R Act is not a valid abrogation of sovereign immunity because it was enacted pursuant to Article I's Commerce Clause and not expressly pursuant to section 5. Aplt. Br. at 5. While Kimel and Garrett do reaffirm that Congress only has the power to abrogate under the Fourteenth Amendment and does not have the power under Article I, neither Kimel nor Garrett require that Congress expressly rely on section 5. Kimel, 528 U.S. at 78-82; Garret, 531 U.S. at 361-62, 121 S. Ct. at 961-63. This court's conclusion that the 4-R Act was a valid exercise of Congress' power to enforce the Equal Protection Clause is not, therefore, called into question by Congress's failure to rely expressly on the Fourteenth Amendment. Union Pacific, 198 F.3d at 1208.\n \n \n 7\n Third, relying on City of Boerne, this court stated that \"congressional power under 5 is remedial in nature, and confers the authority to enforce the Fourteenth Amendment rather than to define its parameters as a matter of substantive law\" and that the Supreme Court has established several factors to guide us in determining whether a law enforces or defines. Id. at 1204. These factors include: (1) whether the legislative record before Congress indicates that the congressional action taken was necessary and appropriate, (2) whether Congress identified conduct transgressing the Fourteenth Amendment's substantive provision, and (3) whether the remedy is proportional and congruent to the unconstitutional conduct it was enacted to curtail. Id. at 1204-05 (citing City of Boerne and Florida Prepaid). Our \"review of the legislative history convince[d the court] that in passing the 4-R Act, Congress was responding to evidence of a pattern of unconstitutional taxation,\" id. at 1206, and \"a substantial history of state discrimination in the taxation of railroad property.\" Id. at 1207. This court held that the state conduct identified by Congress was unconstitutional because it violated the Equal Protection Clause. Id. at 1208 (citing Metro Life Ins. Co. v. Ward, 470 U.S. 869 (1985)). Taking into consideration that only injunctive relief is available and the 5% threshold, we held that the remedy is \"congruent with and in proportion to the Equal Protection violation.\" Id. at 1208.\n \n \n 8\n In this action, the State argues that the R-4 Act is not a valid abrogation of sovereign immunity because it redefines rather than enforces the Fourteenth Amendment. Aplt. Br. at 6. In support of this assertion, the State claims that in Kimel the Supreme Court identified two new factors for determining if a statute permissibly enforces or impermissibly defines the Fourteenth Amendment. Aplt. Br. at 4. These factors are: whether the legislation prohibits substantially more practices than the Fourteenth Amendment does, and whether the history of the legislation reflects a pattern of activity by the states that violates the Fourteenth Amendment. Id.\n \n \n 9\n As to the substantially more practices factor, the State claims that the R-4 Act prohibits all discrimination against railroads while the Equal Protection Clause either does not prohibit discrimination or prohibits only irrational discrimination. Aplt. Br. at 11. Assuming for the sake of argument that the Supreme Court did establish a new \"substantially more practices\" factor for consideration in Kimel,2 it does not follow that the State would then prevail. First, the State has overlooked the fact that the R-4 Act prohibits only discrimination that rises above the 5% threshold. 48 U.S.C. 11501(c). Second, this court in Union Pacific already established that discriminatory taxation of railroads violates the Equal Protection Clause. Union Pacific, 198 F.3d at 1206-08. Third, even if the R-4 Act does prohibit some rational discrimination against railroads which the Equal Protection Clause might not prohibit, the Supreme Court has \"never held that 5 precludes Congress from enacting reasonably prophylactic legislation.\" Kimel, 528 U.S. at 88.\n \n \n 10\n Congress is not limited to mere legislative repetition of this Court's constitutional jurisprudence. \"Rather, Congress' power 'to enforce' the Amendment includes the authority both to remedy and to deter violation of rights guaranteed thereunder by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment's text.\"\n \n \n 11\n Garrett, 531 U.S. at 365, 121 S. Ct. at 963 (quoting Kimel, 528 U.S. at 81). Finally, it is clear that this alleged \"substantially more practices\" factor is not determinative. Kimel, 528 U.S. at 88 (\"That the ADEA prohibits very little conduct to be held unconstitutional, while significant, does not alone provide the answer to our 5 inquiry.\"); id. at 91. It is merely another factor to be considered along with other factors.\n \n \n 12\n As to whether the history of the legislation reflects a pattern of activity by the states that violates the Fourteenth Amendment, this factor was also addressed in Union Pacific. This court's \"review of the legislative history convince[d the court] that in passing the 4-R Act, Congress was responding to evidence of a pattern of unconstitutional taxation,\" Union Pacific, 198 F.3d at 1207, and \"a substantial history of state discrimination in the taxation of railroad property.\" Id. at 1206. Although the State repeatedly cites to the congressional record, we reviewed that record in Union Pacific. As stated above, we cannot overrule the judgement of another panel of this court absent en banc reconsideration or a superseding contrary decision by the Supreme Court. United States v. Morris, 247 F.3d 1080, 1085 (10th Cir. 2001) (quoting In re Smith, 10 F.3d 723, 724 (10th Cir. 1993)). Because we hold that Union Pacific survives Kimel and Garrett, no further review of the congressional record is necessary. See Kimel, 528 U.S. at 89; Garrett, 531 U.S. at 372, 121 S. Ct. at 967.\n \n \n 13\n In sum, we conclude that the Supreme Court's recent decisions did not contradict Union Pacific, it remains controlling precedent, and the 4-R Act is a valid congressional abrogation of state immunity. We, therefore, AFFIRM the district court's denial of the motions to dismiss but express no opinion on the merits of the Railroads' claims.\n \n \n \n NOTES:\n \n \n *\n After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1 (G). The cause therefore is ordered submitted without oral argument.\n \n \n **\n The Honorable Wesley E. Brown, Sr., Senior District Judge, United States District Court - District of Kansas, sitting by designation.\n \n \n 1\n Because of the similarity of facts and common question of law, we will consolidate the two appeals together in this order and judgement.\n \n \n 2\n This seems unlikely because, in Kimel, the Supreme Court describes its decisions in City of Boerne and Florida Prepaid with approval and states that it is applying the same test for congruence and proportionality. Kimel, 528 U.S. at 80-83. Likewise, Garrett quoted City of Boerne when it stated \" 5 legislation reaching beyond the scope of 1's actual guarantees must exhibit 'congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.'\" Garrett, 531 U.S. at 365, 121 S. Ct. at 963. Given these statements by the Supreme Court, this court is inclined to agree with the Railroads' suggestion that \"substantially more practices\" is merely a new descriptive phrase. Aplee. Br. at 13.\n \n \n ",
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| Tenth Circuit | Court of Appeals for the Tenth Circuit | F | USA, Federal |
161,890 | Ebel, Garth, Tacha | 2002-01-10 | false | united-states-v-16328-south-43rd-east-avenue | null | United States v. 16328 South 43rd East Avenue | UNITED STATES of America, Plaintiff-Appellee, v. 16328 SOUTH 43RD EAST AVENUE, BIXBY, TULSA COUNTY, OKLAHOMA, Sued As: One Parcel of Real Property Known As: 16328 South 43rd Avenue, Bixby, Tulsa County, Oklahoma, and All Buildings, Appurtenances, and Improvements Thereon, Defendant. Ozella Scott, Claimant-Appellant | James C. Linger, Butler & Linger, Tulsa, OK, appearing for Appellant., Catherine J. Depew, Assistant United States Attorney (Thomas Scott Woodward, United States Attorney, with her on the brief), Office of the United States Attorney, Tulsa, OK, appearing for Appellee. | null | null | null | null | null | null | null | null | null | null | 9 | Published | null | <parties id="b1345-4">
UNITED STATES of America, Plaintiff-Appellee, v. 16328 SOUTH 43RD EAST AVENUE, BIXBY, TULSA COUNTY, OKLAHOMA, sued as: one parcel of real property known as: 16328 South 43rd Avenue, Bixby, Tulsa County, Oklahoma, and all buildings, appurtenances, and improvements thereon, Defendant. Ozella Scott, Claimant-Appellant.
</parties><br><docketnumber id="b1345-8">
No. 00-5117.
</docketnumber><br><court id="b1345-9">
United States Court of Appeals, Tenth Circuit.
</court><br><decisiondate id="b1345-11">
Jan. 10, 2002.
</decisiondate><br><attorneys id="b1346-8">
<span citation-index="1" class="star-pagination" label="1282">
*1282
</span>
James C. Linger, Butler & Linger, Tulsa, OK, appearing for Appellant.
</attorneys><br><attorneys id="b1346-10">
Catherine J. Depew, Assistant United States Attorney (Thomas Scott Woodward, United States Attorney, with her on the brief), Office of the United States Attorney, Tulsa, OK, appearing for Appellee.
</attorneys><br><judges id="b1346-11">
Before TACHA, Chief Judge, GARTH
<a class="footnote" href="#fn*" id="fn*_ref">
*
</a>
, and EBEL, Circuit Judges.
</judges><div class="footnotes"><div class="footnote" id="fn*" label="*">
<a class="footnote" href="#fn*_ref">
*
</a>
<p id="b1346-9">
The Honorable Leonard I. Garth, Senior Circuit Judge, United States Court of Appeals for the Third Circuit, sitting by designation.
</p>
</div></div> | [
"275 F.3d 1281"
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"opinion_text": "275 F.3d 1281 (10th Cir. 2001)\n UNITED STATES OF AMERICA, Plaintiff - Appellee,v.16328 SOUTH 43RD EAST AVENUE, BIXBY, TULSA COUNTY, OKLAHOMA, sued as: one parcel of real property known as: 16328 South 43rd Avenue, Bixby, Tulsa County, Oklahoma, and all buildings, appurtenances, and improvements thereon, Defendant.\n OZELLA SCOTT, Claimant - Appellant,\n No. 00-5117\n UNITED STATES COURT OF APPEALS TENTH CIRCUIT\n January 10, 2002,\n \n APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA (D. Ct. No. 96-CV-758-E)James C. Linger, Butler & Linger, Tulsa, Oklahoma, appearing for Appellant.\n Catherine J. Depew, Assistant United States Attorney (Thomas Scott Woodward, United States Attorney, with her on the brief), Office of the United States Attorney, Tulsa, Oklahoma, appearing for Appellee.\n Before TACHA, Chief Judge, GARTH*, and EBEL, Circuit Judges.\n TACHA, Chief Circuit Judge.\n \n \n 1\n Ozella Scott appeals the forfeiture of her property under 21 U.S.C. 881(a)(7). Ms. Scott argues that the district court erred in interpreting and applying the innocent owner defense under 881(a)(7). We exercise jurisdiction pursuant to 28 U.S.C. 1291 and AFFIRM.\n \n I. Background\n \n 2\n Police conducted a raid on appellant Ozella Scott's real property on August 28, 1995. During the course of this raid, police caught Ms. Scott's son, Mark Scott, with five marijuana plants that he had pulled from the ground as he fled. They also found two plants still growing on the property. Police executed a search warrant and found 1.4 pounds of marijuana in a mobile home on the property, along with various firearms. Police also found two \"portable outbuildings\" containing lights, insulation, and a total of 37 pots. Some of the pots contained remnants of marijuana plants. Mark Scott pleaded guilty to various drug-related offenses stemming from this raid. On August 19, 1996, the United States began forfeiture proceedings against the property used by Mark Scott to grow and store the marijuana.\n \n \n 3\n In an affidavit dated February 19, 1997, Ms. Scott wrote the following: My name is Ozella Eunice Scott. I was borned [sic] 8-22-33 Present age 63. I live at 5905 N. Lewis, Tulsa, OK. Today I voluntarily came to F.B.I. office in tulsa [sic] to take a polygraph test after taking the test I was told I had problems with question, before Mark's arrest did I know he was growing marijuana on property in Bixby.\n \n \n 4\n I did know he grew one plant in old toilet by shop the plant was 12\" to 15\" high, this was before his arrest at least two years. I sprayed it with weed killer & killed it. About week later he told me it was his. I let him know how angry I was. About a year before arrest I found seeds I believe were marijuana, wife & daughter were there, I said I hope you two aren't smoking in front of daughter, I was very angry with them.\n \n \n 5\n I know Mark smoked marijuana, I didn't know how much, since arrest I heard he smoked quite a lot. His lawyer told me, he said Mark told him.\n \n \n 6\n I found roach (marijuana cig.) in trailer in kitchen in last [sic] 80, ask Mark if it was his, his friend Pete said it was his. Also in late 80 my nephew Rusty Chenault had a trailer parked on property with Mark, one day when I was there I saw one marijuana plant through [sic] back window of Rusty trailer, I didn't say anything to them this time. Had told both of them not to grow marijuana on my property. I had been told they had grown marijuana other places.\n \n \n 7\n Before Mark got divorce from Laura, they would get in fights & she would tell me Mark was growing marijuana on my property & smoking it. I never saw it & I never went looking for it.\n \n \n 8\n Ms. Scott stated in her deposition that Laura Scott only made one statement regarding marijuana growth on the property, and that Laura Scott was inebriated and had been fighting with Mark Scott at the time of her statement. In response to her daughter-in-law's report that Mark Scott was growing drugs on the property, Ms. Scott drove around the property looking for drugs. She apparently did not investigate any of the buildings or the back of the property. She then informed her son that she hoped he was not growing drugs on the property \"because you know how I feel about it. I don't want it on my property and I don't even want you using it.\" Ms. Scott further stated that she rarely visited the property and never went there during the summer. She did not receive any mail at the property.\n \n \n 9\n Mark Scott testified in a deposition that his mother bought the property with the survival benefits paid out after his father was classified Missing in Action in Vietnam. Mark Scott further testified that he had lived on the property since 1981, had taken care of it for his mother, and had purchased half of the trailer on the property with some of his share of the survival benefits. He stated that he had purposely allowed the grass in the backyard to grow high so that Ms. Scott would not venture into the back yard. It also appears from the record that barbed wire was erected to prevent Ms. Scott from venturing into the back yard. When asked what steps his mother had taken to prevent him from growing marijuana on her property, Mark Scott replied \"Told me not to be growing it . . . If I ever catch you doing it or anything else, I'm going to kick you off of here. The only reason she's letting me stay there now is because of the kids.\"\n \n \n 10\n Mark Scott stipulated to forfeiture of his interest in the property. Ms. Scott conceded that probable cause existed for forfeiture. However, Ms. Scott claimed that she was an innocent owner and was therefore entitled to retain the property. On April 5, 2000, the District Court for the Northern District of Oklahoma granted the United States' motion for summary judgment, finding no facts that could lead a reasonable jury to believe that Ms. Scott was an innocent owner. On April 18, 2000, the district court entered a judgment of forfeiture. Ms. Scott appealed, and we now affirm.\n \n II. Discussion\n \n 11\n We review de novo the district court's grant of summary judgment. Phelan v. Laramie County Cmty. Coll. Bd. of Trs., 235 F.3d 1243, 1246 (10th Cir. 2000). Summary judgment is appropriate \"if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.\" Fed. R. Civ. P. 56(c). When we apply this standard, we examine the record and any reasonable inferences drawn therefrom in the light most favorable to the nonmoving party. 19 Solid Waste Dep't Mechs. v. City of Albuquerque, 156 F.3d 1068, 1071 (10th Cir. 1998).\n \n \n 12\n Title 21 of the United States Code authorizes forfeiture of \"[a]ll real property . . . which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of this subchapter punishable by more than one year's imprisonment.\" 21 U.S.C. 881(a)(7). However, the statute provides for an affirmative defense, which has come to be known as the \"innocent owner defense.\" Ms. Scott concedes that the property was used in violation of federal drug laws. The only question on appeal is whether Ms. Scott presented sufficient evidence of innocent ownership to survive summary judgment.\n \n \n 13\n At the time that these proceedings commenced, the statute required an owner who invoked the affirmative defense to prove by a preponderance of the evidence that the illegal acts were committed \"without the knowledge or consent of that owner.\" 21 U.S.C. 881(a)(7)1; United States v. 9844 S. Titan Court, Unit 9, 75 F.3d 1470, 1477 (10th Cir. 1996), overruled on other grounds, United States v. Ursery, 518 U.S. 267 (1996). The circuits are split as to whether the statute requires an innocent owner to prove both a lack of knowledge and a lack of consent, or either a lack of knowledge or a lack of consent. Compare United States v. One Single Family Residence Located at 6960 Miraflores Ave., 995 F.2d 1558, 1561 (11th Cir. 1993) (adopting the conjunctive approach), with United States v. 141st St. Corp., 911 F.2d 870, 877-78 (2d Cir. 1990) (adopting the disjunctive approach). Both parties urge us to address this question. Ms. Scott argues that the statute is to be read disjunctively, requiring an innocent owner to prove a lack of either knowledge or consent. The United States disagrees, arguing that the statute should be read conjunctively. However, because we hold that Ms. Scott both knew of and consented to the drug activity on her property, we need not address the disjunctive/conjunctive debate.\n \n A. Knowledge\n \n 14\n Because the innocent owner defense is an affirmative defense, it is not incumbent upon the government to prove that the owner had knowledge of the illegal activity. Rather, \"it is the claimant's responsibility to prove the absence of actual knowledge.\" United States v. Four Million, Two Hundred Fifty- Five Thousand, Six Hundred & Twenty-five Dollars & Thirty-Nine Cents, 762 F.2d 895, 907 (11th Cir. 1985). Moreover, we are not constrained to accept denials supported by a mere scintilla of evidence. Such bare denials for example, where the defendant's alleged ignorance amounts to willful blindness, or where the owner's claims of ignorance are \"inconsistent with the uncontested facts\" are insufficient to create a genuine triable issue. United States v. One Parcel of Prop., Located at 755 Forrest Rd., 985 F.2d 70, 72-73 (2d Cir. 1993); see also United States v. Parcel of Land & Residence at 5 Bell Rock Rd., 896 F.2d 605, 611 (1st Cir. 1990) (a \"merely colorable\" affidavit is insufficient as a matter of law to avoid summary judgment).\n \n \n 15\n Here, the record establishes that no issue of material fact exists as to whether Ms. Scott knew of drug activity occurring on her property. Her testimony shows that she had found marijuana growing in a toilet on her property, that she had found seeds that she believed were marijuana, that she was aware her son smoked marijuana, that she had been told that he grew marijuana in other places, and that she had been told by her son's estranged wife that he was growing marijuana on the property. Admittedly, Ms. Scott killed the marijuana plant in the toilet, associated the seeds with smoking rather than growing marijuana, stated that she did not believe that her son knew how to grow marijuana, \"never saw [marijuana],\" and inspected the property after being told that her son was growing marijuana. However, she admitted that her search was limited, stating that \"[p]hysically I was not able to go out and basically search everything.\" Ms. Scott never sought help searching the property despite being told that her son was growing marijuana. These facts establish that Ms. Scott was at best willfully blind to her son's activities. Thus, even indulging all inferences in Ms. Scott's favor, there is no issue of triable fact as to whether Ms. Scott knew of the illegal activity on her property. The district court was correct in determining that, as a matter of law, Ms. Scott could not establish that she did not know of her son's illegal activities.\n \n B. Consent\n \n 16\n In United States v. Lot Numbered One (1) of the Lavaland Annex, this court applied a broad definition of consent, under which an owner consents to drug use on her property if she fails \"'to take all reasonable steps to prevent illicit use of [the] premises once [she] acquires knowledge of that use.'\" 256 F.3d 949, 953-54 (10th Cir. 2001) (quoting 141st St., 911 F.2d at 879). Although we applied this broad definition in Lavaland without explicitly adopting it as the standard of this circuit, we do so now. In determining what would constitute \"reasonable steps\" under particular circumstances, we have held that a modified objective standard should be utilized. Id. at 955. While we rejected a purely subjective test, we acknowledged that a property owner \"should not be required to take 'heroic or vigilante measures to rid his or her property of narcotics activity.'\" Id. (quoting United States v. All Right, Title & Interest in Prop. & Premises Known as 710 Main St., 753 F. Supp. 121, 125 (S.D.N.Y. 1990)). Thus, we set out an objective test with a limited subjective component: \"[T]he question is what measures were reasonable under the particular circumstances confronted by the property owner in question. Those circumstances may include the property owner's reasonable fears and concerns, its degree of familiarity with crime prevention, and its economic resources.\" Lavaland, 256 F.3d at 955 (citing 710 Main St., 753 F. Supp. at 125) (internal citations and quotation marks omitted).\n \n \n 17\n While we reversed and remanded for trial in Lavaland, we did so because the record there did not contain facts regarding the reasonableness of potential actions by the property owner. Also, the district court had heard no argument regarding potential reasonable measures. We are confronted with very different circumstances here. The record clearly shows that Ms. Scott did little to deter her son from growing drugs on her land. She killed one of the marijuana plants with weed killer, confiscated and disposed of the marijuana seeds she had found, and threatened her son with eventual eviction if he did not desist. However, these steps fall short of what any reasonable land owner would undertake given such knowledge of drug use and cultivation. For example, she could have given notice to appropriate law enforcement officials, and she could have evicted her son upon the information she received from her daughter-in-law. At the very least, Ms. Scott could have investigated the property more thoroughly to determine whether marijuana was in fact growing there. While we understand that Ms. Scott might have had difficulty investigating the property on her own, nothing prevented her from having some third party such as the police investigate the property for her. Instead she largely ignored obvious signs that her property was being used to grow marijuana plants.2\n \n \n 18\n The fact that the occupant was Ms. Scott's son does not relieve her of her duties as a landowner to take all reasonable steps to keep her property free of illegal activities. Such a bond certainly does not automatically entitle her to a jury trial on the question of the reasonableness of her actions. Denying the innocent owner defense to a landowner who failed to investigate thoroughly claims that her son grew drugs on the property, evict her son upon confirmation of those claims, or report such activities to police would be less harsh than what other courts have required of landowners. See, e.g., United States v. Two Parcels of Prop. Located at 19 & 25 Castle St., 31 F.3d 35, 40 (2d Cir. 1994) (holding that parents who feared drug lord retaliation, notified police, and pressed their children to enter rehabilitation consented as a matter of law to their children's drug activity because they did not search the premises for drugs and did not evict their children); United States v. Sixty Acres in Etowah County, 930 F.2d 857, 860-61 (11th Cir. 1991) (holding that a woman did not escape the consequences of consent to husband's illegal acts even though she presented evidence that her husband had beaten his previous wife to death, had beaten her, and owned several guns).\n \n \n 19\n Congress has placed strict duties upon landowners to rid their property of drug activity. Ms. Scott's decision not to investigate the property thoroughly when all signs indicated that it was being used to grow marijuana, her decision not to alert the police, her decision not to evict her son upon continued evidence of his illegal activities, and her failure to take any comparable steps make it impossible for her to show by a preponderance of the evidence that she took all reasonable steps to prevent the illegal activities from occurring. Thus, we hold that Ms. Scott cannot show lack of consent.\n \n III. Conclusion\n \n 20\n The facts on the record are insufficient as a matter of law to prove that Ms. Scott did not know of or consent to the use of her property for the cultivation of marijuana. Thus, the district court was correct in refusing to try the innocent owner defense to a jury. The judgment of the district court is therefore AFFIRMED.\n \n \n \n NOTES:\n \n \n *\n The Honorable Leonard I. Garth, Senior Circuit Judge, United States Court of Appeals for the Third Circuit, sitting by designation.\n \n \n 1\n This language has since been repealed. Civil Asset Forfeiture Reform Act, Pub. L. No. 106-185, 2(c)(2), 114 Stat. 202 (2000) (codified for relevant purposes at 18 U.S.C. 983) (striking the exception clause). The innocent owner defense now applies to those who \"(i) did not know of the conduct giving rise to forfeiture; or (ii) upon learning of the conduct giving rise to the forfeiture, did all that reasonably could be expected under the circumstances to terminate such use of the property.\" 18 U.S.C. 983 (d)(2)(A).\n \n \n 2\n We do not hold that these options are an exhaustive list of things that a landowner in Ms. Scott's shoes must do to act reasonably. There may well be other alternatives we have not considered that might warrant empaneling a jury. Nor do we hold that a claimant-owner who takes such steps is automatically entitled to have a jury empaneled. The list of options is simply intended to illustrate that there were at least some reasonable options Ms. Scott could have chosen to maintain a drug-free property.\n \n \n Garth, J., dissenting:\n \n 21\n I part company with my colleagues in the majority respecting only one aspect of Chief Judge Tacha's exemplary opinion. In my view, under the consent prong of the innocent owner defense, the issue of whether Ozella Scott's actions were \"reasonable under the particular circumstances,\" see maj. op. at 1286, is a question for the jury and not the Court. I adhere to the principle that it is the jury which is the better arbiter of what is reasonable or unreasonable here, given the nature of this mother-son relationship, Ozella Scott's infrequent visits to the property at issue, and the length of time between her son's drug-related incidents known to Ozella Scott. Consequently, I would reverse the District Court's judgment and remand for trial on the sole issue of consent.\n \n I.\n \n 22\n I do not recite the facts again here, except to reiterate that in each of the instances where Ozella Scott was made aware of marijuana growing on her property, she made some effort to prevent the illegal activity. For example, with regard to finding marijuana in the old toilet (which, according to Ozella Scott's February 19, 1997 affidavit, was more than two years prior to her son's arrest in 1995), there is no dispute that she immediately killed the plant by spraying it with weed killer and then threatened to evict her son if he ever grew it again. When Ozella Scott found what she thought could be marijuana seeds (about one year prior to Mark Scott's arrest), she again repeated her warning to both her son and his wife. After catching her nephew growing a marijuana plant in the late 1980s, Ozella Scott made him get rid of the plant and then evicted him from her property.\n \n \n 23\n I would also note that when Ozella Scott reprimanded her son, he, Mark Scott, promised her that he would discontinue his drug activity. Though his promises were unfulfilled and turned out to be lies, Mark Scott adopted measures to discourage and prevent Ozella Scott from inspecting the property in the back yard where the marijuana was growing. Knowing his mother did not like insects and ticks, evidence in the record demonstrates that Mark Scott purposefully did not cut the grass so that it grew high, knowing this would keep his mother from investigating. Indeed, the record indicates that Mark Scott erected barbed wire to prevent his mother from checking in the back yard. See maj. op. at 1283. Further, there is no dispute that Ozella Scott did not live on the property, that she visited the property maybe three times a year, and that she consistently communicated her disapproval of any drug use let alone drug distribution and cultivation on her property to her son. There is no evidence in the record to suggest that Ozella Scott was aware of the true extent of her son's extensive drug activities.\n \n II.\n \n 24\n I agree with the majority's conclusion that the record conclusively establishes that no issue of material fact exists as to whether Ozella Scott knew of some drug activity occurring on her property. See maj. op. at 1285. The sole remaining issue, therefore, is whether Ozella Scott consented to the activity.1 In defining \"consent,\" the majority has adopted the \"broad\" approach applied in United States v. Lot Numbered One (1) of the Lavaland Annex, 256 F.3d 949 (10th Cir. 2001), which I agree is the proper definition that should be used. Accordingly, the question that must be asked here is: whether those remedial actions taken by Ozella Scott (described in Section I, supra) in response to her son's activities were \"reasonable under the particular circumstances confronted by [Ozella Scott].\" Id. at 955; see maj. op. at 1286. My answer to that question is: a jury must decide.\n \n III.\n \n 25\n While Ozella Scott's actions in hindsight may not have been the best response or the most effective response, and while there may have been other, more dramatic, actions which Ozella Scott could have taken, whether her actions were \"reasonable under the particular circumstances\" so as to demonstrate consent to her son's illegal activities is in my view and in light of the limited guidance set forth by this Court in Lavaland a question best answered by the jury, the finder of fact.\n \n \n 26\n In Lavaland, the government brought forfeiture proceedings under 881(a)(7) against a hotel in which drug trafficking had been on-going. The owners of the hotel claimed to be innocent owners, despite having been previously informed of illegal drug activities there by law enforcement and despite the existence of obvious drug activity. Pursuant to its Findings of Fact and Conclusions of Law, the district court ruled that the owners were not innocent because they could have taken but did not several reasonable steps to prevent the illegal use of the property.\n \n \n 27\n On appeal, this Court reversed the district court and remanded for a new trial. In so holding, we noted:\n \n \n 28\n [T]he court's own sense of what would have been reasonable provides an insufficient basis to reject the innocent owner defense. The question of whether the measures taken by the property owner to prevent illegal drug trafficking were reasonable under the circumstances is a factual one to be resolved by evaluating the evidence and arguments in the record not by speculating about what could have been done.\n \n \n 29\n Lavaland, 256 F.3d at 955. Although Lavaland presented a different set of factual circumstances and a different procedural posture than what is presented here, see maj. op. at 1286, I believe that the Lavaland ruling is consonant with the principle I advance here namely, that a jury should be the body determining \"reasonableness\" as to Ozella Scott's remedial actions.\n \n \n 30\n A decision to leave this question for the jury is further supported by the Second Circuit decision in United States v. One Parcel of Property Located at 121 Allen Place, Hartford, Connecticut, 75 F.3d 118 (2d Cir. 1996). That case involved the seizure of a building owned by Stanley Tucker, who rented apartments to residential tenants. Over a span of two and half years, police responded to over 360 calls to the building relating to illegal activities, and confidential informants made no less than three controlled purchases of cocaine on the property. At least sixteen people had been arrested in Tucker's building, and the local police department sent a letter to Tucker informing him of at least two of the arrests made on his property. Tucker claimed that he was an \"innocent owner\" under 881.\n \n \n 31\n On summary judgment, the district court ruled that there was no issue of fact as to whether Tucker \"knew\" of the illegal narcotics activity, but it did find material issues as to whether Tucker \"consented\" to it. After a trial on the \"consent\" issue, the jury returned a verdict in Tucker's favor. However, the presiding Magistrate Judge finding that Tucker \"took virtually no reasonable steps at all\" to prevent the illegal activity granted the government's Rule 50 motion, and ordered forfeiture of Tucker's property.\n \n \n 32\n In reversing the Magistrate Judge's ruling, the Second Circuit, applying essentially the same \"reasonableness\" standard which the majority has applied here, held that the determination of the \"reasonableness\" of the property owner's action was within in the domain of the jury rather than the court. While the case was decided in the context of a Rule 50 motion, the principles articulated therein apply equally well in a summary judgment context. I refer to the Second Circuit's admonition that:\n \n \n 33\n Although a court might disagree with the jury's conclusions, it cannot substitute its view of the evidence for that of the jury when there is evidence of substantial efforts by an owner of property to prevent its use for drug trafficking. The existence of those efforts, and their reasonableness, is for the trier of fact to determine in considering whether the owner proved a lack of consent to the narcotics activity. We therefore reverse.\n \n \n 34\n 121 Allen Place, 75 F.3d at 122-23 (emphasis added).\n \n \n 35\n I concede that it is a close call as to whether Ozella Scott's efforts were sufficiently \"substantial\" to warrant a continuation of these proceedings below. However, given the facts particular to her situation, all of which must be viewed in her favor including her age, her infrequent visits, her relationship with her son, the small number of illegal incidents actually known to Ozella Scott, the length of time that lapsed between learning of each of her son's drug-related incidents, her son's attempts to prevent Ozella Scott from investigating the property, and her son's lies promising that he had ceased all drug activities the District Court's ruling that Ozella Scott's actions (e.g., killing the marijuana plant, reprimanding and threatening her son, demanding assurances that her son cease drug activities, and evicting her nephew) were not sufficiently \"reasonable\" to demonstrate her lack of consent to Mark Scott's drug activities is, for the reasons I expressed above, inappropriate and, I believe, in error. Such a determination is one better suited for the jury.\n \n \n 36\n For the foregoing reasons, I respectfully dissent.\n \n \n \n Notes:\n \n \n 1\n Consequently, I would hold unlike the majority, which by its decision has no need to resolve the issue, see maj. op. at 1284-85 that the innocent owner defense under 21 U.S.C. 881(a)(7), as it existed at the time these proceedings began, requires only a lack of knowledge or a lack of consent to be established by the property owner (the disjunctive approach). While the majority very correctly notes that the circuits are split on this issue, see maj. op. at 1284, an examination of the language of 881(a)(7) demonstrates to me that the lack-of-knowledge and lack-of-consent requirements should be read disjunctively, as they are connected by an \"or\" and not an \"and.\" See 21 U.S.C. 881(a)(7) (\"no property shall be forfeited . . . by reason of any [illegal] act . . . established by that owner to have been committed . . . without the knowledge or consent of that owner.\") (emphasis added); see also United States v. Parcel of Real Property Known as 6109 Grubb Road, 886 F.2d 618, 623-27 (3d Cir. 1989) (citing Reiter v. Sonotone Corp., 442 U.S. 330 339 (1979) (\"canons of construction ordinarily suggest that terms connected by a disjunctive be given separate meanings unless the context dictates otherwise.\")).\n \n \n ",
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"opinion_text": "\nTACHA, Chief Circuit Judge.\nOzella Scott appeals the forfeiture of her property under 21 U.S.C. § 881(a)(7). Ms. Scott argues that the district court erred in interpreting and applying the innocent owner defense under § 881(a)(7). We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM.\n\nI. Background\n\nPolice conducted a raid on appellant Ozella Scott’s real property on August 28, 1995. During the course of this raid, police caught Ms. Scott’s son, Mark Scott, with five marijuana plants that he had pulled from the ground as he fled. They also found two plants still growing on the property. Police executed a search warrant and found 1.4 pounds of marijuana in a mobile home on the property, along with various firearms. Police also found two “portable outbuildings” containing lights, insulation, and a total of 37 pots. Some of the pots contained remnants of marijuana plants. Mark Scott pleaded guilty to various drug-related offenses stemming from this raid. On August 19, 1996, the United States began forfeiture proceedings against the property used by Mark Scott to grow and store the marijuana.\nIn an affidavit dated February 19, 1997, Ms. Scott wrote the following:\n*1283My name is Ozella Eunice Scott. I was borned [sic] 8-22-33 Present age 63. I live at 5905 N. Lewis, Tulsa, OK. Today I voluntarily came to F.B.I. office in tulsa [sic] to take a polygraph test after taking the test I was told I had problems with question, before Mark’s arrest did I know he was growing marijuana on property in Bixby.\nI did know he grew one plant in old toilet by shop the plant was 12\" to 15\" high, this was before his arrest at least two years. I sprayed it with weed killer & killed it. About week later he told me it was his. I let him know how angry I was. About a year before arrest I found seeds I believe were marijuana, wife & daughter were there, I said I hope you two aren’t smoking in front of daughter, I was very angry with them.\nI know Mark smoked marijuana, I didn’t know how much, since arrest I heard he smoked quite a lot. His lawyer told me, he said Mark told him.\nI found roach (marijuana cig.) in trailer in kitchen in last [sic] 80, ask Mark if it was his, his friend Pete said it was his. Also in late 80 my nephew Rusty Che-nault had a trailer parked on property with Mark, one day when I was there I saw one marijuana plant through [sic] back window of Rusty trailer, I didn’t say anything to them this time. Had told both of them not to grow marijuana on my property. I had been told they had grown marijuana other places.\nBefore Mark got divorce from Laura, they would get in fights & she would tell me Mark was growing marijuana on my property & smoking it. I never saw it & I never went looking for it.\nMs. Scott stated in her deposition that Laura Scott only made one statement regarding marijuana growth on the property, and that Laura Scott was inebriated and had been fighting with Mark Scott at the time of her statement. In response to her daughter-in-law’s report that Mark Scott was growing drugs on the property, Ms. Scott drove around the property looking for drugs. She apparently did not investigate any of the buildings or the back of the property. She then informed her son that she hoped he was not growing drugs on the property “because you know how I feel about it. I don’t want it on my property and I don’t even want you using it.” Ms. Scott further stated that she rarely visited the property and never went there during the summer. She did not receive any mail at the property.\nMark Scott testified in a deposition that his mother bought the property with the survival benefits paid out after his father was classified Missing in Action in Vietnam. Mark Scott further testified that he had lived on the property since 1981, had taken care of it for his mother, and had purchased half of the trailer on the property with some of his share of the survival benefits. He stated that he had purposely allowed the grass in the backyard to grow high so that Ms. Scott would not venture into the back yard. It also appears from the record that barbed wire was erected to prevent Ms. Scott from venturing into the back yard. When asked what steps his mother had taken to prevent him from growing marijuana on her property, Mark Scott replied “Told me not to be growing it ... If I ever catch you doing it or anything else, I’m going to kick you off of here. The only reason she’s letting me stay there now is because of the kids.”\nMark Scott stipulated to forfeiture of his interest in the property. Ms. Scott conceded that probable cause existed for forfeiture. However, Ms. Scott claimed that she was an innocent owner and was therefore entitled to retain the property. On April 5, 2000, the District Court for the Northern District of Oklahoma granted *1284the United States’ motion for summary judgment, finding no facts that could lead a reasonable jury to believe that Ms. Scott was an innocent owner. On April 18, 2000, the district court entered a judgment of forfeiture. Ms. Scott appealed, and we now affirm.\n\nII. Discussion\n\nWe review de novo the district court’s grant of summary judgment. Phelan v. Laramie County Cmty. Coll. Bd. of Trs., 235 F.3d 1243, 1246 (10th Cir.2000). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(c). When we apply this standard, we examine the record and any reasonable inferences drawn therefrom in the light most favorable to the nonmoving party. 19 Solid Waste Dep’t Mechs. v. City of Albuquerque, 156 F.3d 1068, 1071 (10th Cir.1998).\nTitle 21 of the United States Code authorizes forfeiture of “[a]ll real property ... which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of this subchapter punishable by more than one year’s imprisonment.” 21 U.S.C. § 881(a)(7). However, the statute provides for an affirmative defense, which has come to be known as the “innocent owner defense.” Ms. Scott concedes that the property was used in violation of federal drug laws. The only question on appeal is whether Ms. Scott presented sufficient evidence of innocent ownership to survive summary judgment.\nAt the time that these proceedings commenced, the statute required an owner who invoked the affirmative defense to prove by a preponderance of the evidence that the illegal acts were committed “without the knowledge or consent of that owner.” 21 U.S.C. § 881(a)(7)1; United States v. 9844 S. Titan Court, Unit 9, 75 F.3d 1470, 1477 (10th Cir.1996), overruled on other grounds, United States v. Ursery, 518 U.S. 267, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996). The circuits are split as to whether the statute requires an innocent owner to prove both a lack of knowledge and a lack of consent, or either a lack of knowledge or a lack of consent. Compare United States v. One Single Family Residence Located at 6960 Miraflores Ave., 995 F.2d 1558, 1561 (11th Cir.1993) (adopting the conjunctive approach), with United States v. Hist St. Corp., 911 F.2d 870, 877-78 (2d Cir.1990) (adopting the disjunctive approach). Both parties urge us to address this question. Ms. Scott argues that the statute is to be read disjunctively, requiring an innocent owner to prove a lack of either knowledge or consent. The United States disagrees, arguing that the statute should be read conjunctively. However, because we hold that Ms. Scott both knew of and consented to the drug activity on her property, we need not address the disjunctive/conjunctive debate.\n\nA. Knowledge\n\nBecause the innocent owner defense is an affirmative defense, it is not incumbent upon the government to prove *1285that the owner had knowledge of the illegal activity. Rather, “it is the claimant’s responsibility to prove the absence of actual knowledge.” United States v. Four Million, Two Hundred Fifty-Five Thousand, 762 F.2d 895, 907 (11th Cir.1985). Moreover, we are not constrained to accept denials supported by a mere scintilla of evidence. Such bare denials — for example, where the defendant’s alleged ignorance amounts to willful blindness, or where the owner’s claims of ignorance are “inconsistent with the uncontested facts”— are insufficient to create a genuine triable issue. United States v. One Parcel of Prop., Located at 755 Forest Rd., 985 F.2d 70, 72-73 (2d Cir.1993); see also United States v. Parcel of Land & Residence at 5 Bell Rock Rd., 896 F.2d 605, 611 (1st Cir. 1990) (a “merely colorable” affidavit is insufficient as a matter of law to avoid summary judgment).\nHere, the record establishes that no issue of material fact exists as to whether Ms. Scott knew of drug activity occurring on her property. Her testimony shows that she had found marijuana growing in a toilet on her property, that she had found seeds that she believed were marijuana, that she was aware her son smoked marijuana, that she had been told that he grew marijuana in other places, and that she had been told by her son’s estranged wife that he was growing marijuana on the property. Admittedly, Ms. Scott killed the marijuana plant in the toilet, associated the seeds with smoking rather than growing marijuana, stated that she did not believe that her son knew how to grow marijuana, “never saw [marijuana],” and inspected the property after being told that her son was growing marijuana. However, she admitted that her search was limited, stating that “[p]hysically I was not able to go out and basically search everything.” Ms. Scott never sought help searching the property despite being told that her son was growing marijuana. These facts establish that Ms. Scott was at best willfully blind to her son’s activities. Thus, even indulging all inferences in Ms. Scott’s favor, there is no issue of triable fact as to whether Ms. Scott knew of the illegal activity on her property. The district court was correct in determining that, as a matter of law, Ms. Scott could not establish that she did not know of her son’s illegal activities.\n\nB. Consent\n\nIn United States v. Lot Numbered One (1) of the Lavaland Annex, this court applied a broad definition of consent, under which an owner consents to drug use on her property if she fails “ ‘to take all reasonable steps to prevent illicit use of [the] premises once [she] acquires knowledge of that use.’ ” 256 F.3d 949, 953-54 (10th Cir.2001) (quoting Hist St., 911 F.2d at 879). Although we applied this broad definition in Lavaland without explicitly adopting it as the standard of this circuit, we do so now. In determining what would constitute “reasonable steps” under particular circumstances, we have held that a modified objective standard should be utilized. Id. at 955. While we rejected a purely subjective test, we acknowledged that a property owner “should not be required to take ‘heroic or vigilante measures to rid his or her property of narcotics activity.’ ” Id. (quoting United States v. All Right, Title & Interest in Prop. & Premises Known as 710 Main St., 753 F.Supp. 121, 125 (S.D.N.Y.1990)). Thus, we set out an objective test with a limited subjective component: “[T]he question is what measures were reasonable under the particular circumstances confronted by the property owner in question. Those circumstances may include the property owner’s reasonable fears and concerns, its degree of familiarity with crime prevention, *1286and its economic resources.” Lavaland, 256 F.3d at 955 (citing 710 Main St., 753 F.Supp. at 125) (internal citations and quotation marks omitted).\nWhile we reversed and remanded for trial in Lavaland, we did so because the record there did not contain facts regarding the reasonableness of potential actions by the property owner. Also, the district court had heard no argument regarding potential reasonable measures. We are confronted with very different circumstances here. The record clearly shows that Ms. Scott did little to deter her son from growing drugs on her land. She killed one of the marijuana plants with weed killer, confiscated and disposed of the marijuana seeds she had found, and threatened her son with eventual eviction if he did not desist. However, these steps fall short of what any reasonable land owner would undertake given such knowledge of drug use and cultivation. For example, she could have given notice to appropriate law enforcement officials, and she could have evicted her son upon the information she received from her daughter-in-law. At the very least, Ms. Scott could have investigated the property more thoroughly to determine whether marijuana was in fact growing there. While we understand that Ms. Scott might have had difficulty investigating the property on her own, nothing prevented her from having some third party — such as the police — investigate the property for her. Instead she largely ignored obvious signs that her property was being used to grow marijuana plants.2\nThe fact that the occupant was Ms. Scott’s son does not relieve her of her duties as a landowner to take all reasonable steps to keep her property free of illegal activities. Such a bond certainly does not automatically entitle her to a jury trial on the question of the reasonableness of her actions. Denying the innocent owner defense to a landowner who failed to investigate thoroughly claims that her son grew drugs on the property, evict her son upon confirmation of those claims, or report such activities to police would be less harsh than what other courts have required of landowners. See, e.g., United States v. Two Parcels of Prop. Located at 19 & 25 Castle St., 31 F.3d 35, 40 (2d Cir.1994) (holding that parents who feared drug lord retaliation, notified police, and pressed their children to enter rehabilitation consented as a matter of law to their children’s drug activity because they did not search the premises for drugs and did not evict their children); United States v. Sixty Acres in Etowah County, 930 F.2d 857, 860-61 (11th Cir.1991) (holding that a woman did not escape the consequences of consent to husband’s illegal acts even though she presented evidence that her husband had beaten his previous wife to death, had beaten her, and owned several guns).\nCongress has placed strict duties upon landowners to rid their property of drug activity. Ms. Scott’s decision not to investigate the property thoroughly when all signs indicated that it was being used to grow marijuana, her decision not to alert the police, her decision not to evict her son upon continued evidence of his illegal activities, and her failure to take any comparable steps make it impossible for her to show by a preponderance of the evidence *1287that she took all reasonable steps to prevent the illegal activities from occurring. Thus, we hold that Ms. Scott cannot show lack of consent.\n\nIII. Conclusion\n\nThe facts on the record are insufficient as a matter of law to prove that Ms. Scott did not know of or consent to the use of her property for the cultivation of marijuana. Thus, the district court was correct in refusing to try the innocent owner defense to a jury. The judgment of the district court is therefore AFFIRMED.\n\n. This language has since been repealed. Civil Asset Forfeiture Reform Act, Pub.L. No. 106-185, § 2(c)(2), 114 Stat. 202 (2000) (codified for relevant purposes at 18 U.S.C. § 983) (striking the exception clause). The innocent owner defense now applies to those who \"(i) did not know of the conduct giving rise to forfeiture; or (ii) upon learning of the conduct giving rise to the forfeiture, did all that reasonably could be expected under the circumstances to terminate such use of the property.” 18 U.S.C. § 983(d)(2)(A).\n\n\n. We do not hold that these options are an exhaustive list of things that a landowner in Ms. Scott's shoes must do to act reasonably. There may well be other alternatives we have not considered that might warrant empaneling a jury. Nor do we hold that a claimant-owner who takes such steps is automatically entitled to have a jury empaneled. The list of options is simply intended to illustrate that there were at least some reasonable options Ms. Scott could have chosen to maintain a drug-free property.\n\n",
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"opinion_text": "\nGARTH, J.,\ndissenting:\nI part company with my colleagues in the majority respecting only one aspect of Chief Judge Tacha’s exemplary opinion. In my view, under the consent prong of the innocent owner defense, the issue of whether Ozella Scott’s actions were “reasonable under the particular circumstances,” see maj. op. at 1286, is a question for the jury and not the Court. I adhere to the principle that it is the jury which is the better arbiter of what is reasonable or unreasonable here, given the nature of this mother-son relationship, Ozella Scott’s infrequent visits to the property at issue, and the length of time between her son’s drug-related incidents known to Ozella Scott. Consequently, I would reverse the District Court’s judgment and remand for trial on the sole issue of consent.\nI.\nI do not recite the facts again here, except to reiterate that in each of the instances where Ozella Scott was made aware of marijuana growing on her property, she made some effort to prevent the illegal activity. For example, with regard to finding marijuana in the old toilet (which, according to Ozella Scott’s February 19, 1997 affidavit, was more than two years prior to her son’s arrest in 1995), there is no dispute that she immediately killed the plant by spraying it with weed killer and then threatened to evict her son if he ever grew it again. When Ozella Scott found what she thought could be marijuana seeds (about one year prior to Mark Scott’s arrest), she again repeated her warning to both her son and his wife. After catching her nephew growing a marijuana plant in the late 1980s, Ozella Scott made him get rid of the plant and then evicted him from her property.\nI would also note that when Ozella Scott reprimanded her son, he, Mark Scott, promised her that he would discontinue his drug activity. Though his promises were unfulfilled and turned out to be lies, Mark Scott adopted measures to discourage and prevent Ozella Scott from inspecting the property in the back yard where the marijuana was growing. Knowing his mother did not like insects and ticks, evidence in the record demonstrates that Mark Scott purposefully did not cut the grass so that it grew high, knowing this would keep his mother from investigating. Indeed, the record indicates that Mark Scott erected barbed wire to prevent his mother from checking in the back yard. See maj. op. at 1283. Further, there is no dispute that Ozella Scott did not live on the property, that she visited the property maybe three times a year, and that she consistently communicated her disapproval of any drug use — let alone drug distribution and cultivation — on her property to her son. There is no evidence in the record to suggest that Ozella Scott was aware of the true extent of her son’s extensive drug activities.\nII.\nI agree with the majority’s conclusion that the record conclusively establishes that no issue of material fact exists as to *1288whether Ozella Scott knew of some drug activity occurring on her property. See maj. op. at 1285. The sole remaining issue, therefore, is whether Ozella Scott consented to the activity.1 In defining “consent,” the majority has adopted the “broad” approach applied in United States v. Lot Numbered One (1) of the Lavaland Annex, 256 F.3d 949 (10th Cir.2001), which I agree is the proper definition that should be used. Accordingly, the question that must be asked here is: whether those remedial actions taken by Ozella 'Scott (described in Section I, supra) in response to her son’s activities were “reasonable under the particular circumstances confronted by [Ozella Scott].” Id. at 955; see maj. op. at 1286. My answer to that question is: a jury must decide.\nIII.\nWhile Ozella Scott’s actions in hindsight may not have been the best response or the most effective response, and while there may have been other, more dramatic, actions which Ozella Scott could have taken, whether her actions were “reasonable under the particular circumstances” so as to demonstrate consent to her son’s illegal activities is — in my view and in light of the limited guidance set forth by this Court in Lavaland — a question, best answered by the jury, the finder of fact.\nIn Lavaland, the government brought forfeiture proceedings under § 881(a)(7) against a hotel in which drug trafficking had been on-going. The owners of the hotel claimed to be innocent owners, despite having been previously informed of illegal drug activities there by law enforcement and despite the existence of obvious drug activity. Pursuant to its Findings of Fact and Conclusions of Law, the district court ruled that the owners were not innocent because they could have taken — but did not — several reasonable steps to prevent the illegal use of the property.\nOn appeal, this Court reversed the district court and remanded for a new trial. In so holding, we noted:\n[T]he court’s own sense of what would have been reasonable provides an insufficient basis to reject the innocent owner defense. The question of whether the measures taken by the property owner to prevent illegal drug trafficking were reasonable under the circumstances is a factual one to be resolved by evaluating the evidence and arguments in the record — not by speculating about what could have been done.\nLavaland, 256 F.3d at 955. Although La-valand presented a different set of factual circumstances and a different procedural posture than what is presented here, see maj. op. at 1286, I believe that the Lavar *1289land ruling is consonant with the principle I advance here — namely, that a jury should be the body determining “reasonableness” as to Ozella Scott’s remedial actions.\nA decision to leave this question for the jury is further supported by the Second Circuit decision in United States v. One Parcel of Property Located at 121 Allen Place, Hartford, Connecticut, 75 F.3d 118 (2d Cir.1996). That case involved the seizure of a building owned by Stanley Tucker, who rented apartments to residential tenants. Over a span of two and half years, police responded to over 360 calls to the building relating to illegal activities, and confidential informants made no less than three controlled purchases of cocaine on the property. At least sixteen people had been arrested in Tucker’s building, and the local police department sent a letter to Tucker informing him of at least two of the arrests made on his property. Tucker claimed that he was an “innocent owner” under § 881.\nOn summary judgment, the district court ruled that there was no issue of fact as to whether Tucker “knew” of the illegal narcotics activity, but it did find material issues as to whether Tucker “consented” to it. After a trial on the “consent” issue, the jury returned a verdict in Tucker’s favor. However, the presiding Magistrate Judge — finding that Tucker “took virtually no reasonable steps at all” to prevent the illegal activity — granted the government’s Rule 50 motion, and ordered forfeiture of Tucker’s property.\nIn reversing the Magistrate Judge’s ruling, the Second Circuit, applying essentially the same “reasonableness” standard which the majority has applied here, held that the determination of the “reasonableness” of the property owner’s action was within in the domain of the jury rather than the court. While the case was decided in the context of a Rule 50 motion, the principles articulated therein apply equally well in a summary judgment context. I refer to the Second Circuit’s admonition that:\nAlthough a court might disagree with the jury’s conclusions, it cannot substitute its view of the evidence for that of the jury when there is evidence of substantial efforts by an owner of property to prevent its use for drug trafficking. The existence of those efforts, and their reasonableness, is for the trier of fact to determine in considering whether the owner proved a lack of consent to the narcotics activity. We therefore reverse.\n121 Allen Place, 75 F.3d at 122-23 (emphasis added).\nI concede that it is a close call as to whether Ozella Scott’s efforts were sufficiently “substantial” to warrant a continuation of these proceedings below. However, given the facts particular to her situation, all of which must be viewed in her favor — including her age, her infrequent visits, her relationship with her son, the small number of illegal incidents actually known to Ozella Scott, the length of time that lapsed between learning of each of her son’s drug-related incidents, her son’s attempts to prevent Ozella Scott from investigating the property, and her son’s lies promising that he had ceased all drug activities — the District Court’s ruling that Ozella Scott’s actions (e.g., killing the marijuana plant, reprimanding and threatening her son, demanding assurances that her son cease drug activities, and evicting her nephew) were not sufficiently “reasonable” to demonstrate her lack of consent to Mark Scott’s drug activities is, for the reasons I expressed above, inappropriate and, I believe, in error. Such a determination is one better suited for the jury.\n*1290For the foregoing reasons, I respectfully dissent.\n\n. Consequently, I would hold’ — unlike the majority, which by its decision has no need to resolve the issue, see maj. op. at 1284-85— that the innocent owner defense under 21 U.S.C. § 881(a)(7), as it existed at the time these proceedings began, requires only a lack of knowledge or a lack of consent to be established by the property owner (the disjunctive approach). While the majority very correctly notes that the circuits are split on this issue, see maj. op. at 1284, an examination of the language of § 881(a)(7) demonstrates to me that the lack-of-knowledge and lack-of-consent requirements should be read disjunctively, as they are connected by an “or” and not an \"and.” See 21 U.S.C. § 881(a)(7) (“no property shall be forfeited ... by reason of any [illegal] act ... established by that owner to have been committed ... without the knowledge or consent of that owner.”) (emphasis added); see also United States v. Parcel of Real Property Known as 6109 Grubb Road, 886 F.2d 618, 623-27 (3d Cir.1989) (citing Reiter v. Sonotone Corp., 442 U.S. 330-339, 99 S.Ct. 2326, 60 L.Ed.2d 931 (1979) (“canons of construction ordinarily suggest that terms connected by a disjunctive be given separate meanings unless the context dictates otherwise.”)).\n\n",
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| Tenth Circuit | Court of Appeals for the Tenth Circuit | F | USA, Federal |
2,593,289 | Brieant | 1984-01-04 | false | equal-employment-opportunity-commission-v-pan-american-world-airways | null | Equal Employment Opportunity Commission v. Pan American World Airways | EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Petitioner, v. PAN AMERICAN WORLD AIRWAYS, Respondent | E.E.O.C. by Sandy Horn, Daniel Williams, Paul Brenner, New York City, for petitioner., Townley & Updike by Kenneth J. McCulloch, James D. Madigan, III, New York City, for respondent. | null | null | null | null | null | null | null | null | null | null | 12 | Published | null | <parties id="b1606-9">
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Petitioner, v. PAN AMERICAN WORLD AIRWAYS, Respondent.
</parties><br><docketnumber id="b1606-12">
No. M-18-304.
</docketnumber><br><court id="b1606-13">
United States District Court, S.D. New York.
</court><br><decisiondate id="b1606-14">
Jan. 4, 1984.
</decisiondate><br><attorneys id="b1607-10">
<span citation-index="1" class="star-pagination" label="1531">
*1531
</span>
E.E.O.C. by Sandy Horn, Daniel Williams, Paul Brenner, New York City, for petitioner.
</attorneys><br><attorneys id="b1607-11">
Townley & Updike by Kenneth J. McCulloch, James D. Madigan, III, New York City, for respondent.
</attorneys> | [
"576 F. Supp. 1530"
]
| [
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"opinion_text": "\n576 F. Supp. 1530 (1984)\nEQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Petitioner,\nv.\nPAN AMERICAN WORLD AIRWAYS, Respondent.\nNo. M-18-304.\nUnited States District Court, S.D. New York.\nJanuary 4, 1984.\n*1531 E.E.O.C. by Sandy Hom, Daniel Williams, Paul Brenner, New York City, for petitioner.\nTownley & Updike by Kenneth J. McCulloch, James D. Madigan, III, New York City, for respondent.\n\nMEMORANDUM AND ORDER\nBRIEANT, District Judge.\nFamiliarity with all prior proceedings in this matter on the part of the reader is assumed.\nPursuant to Section 7 of the Age Discrimination in Employment Act (\"ADEA\"), 29 U.S.C. § 621, et seq., and § 9 of the Federal Trade Commission Act, 15 U.S.C. § 49, the Equal Employment Opportunity Commission (\"EEOC\") sought an order from this Court directing Pan American World Airways, Inc. (\"Pan Am\") to comply with the terms of a subpoena duces tecum issued on January 14, 1983. The EEOC had initiated an investigation in response to about 13 separate employee complaints of age based discrimination with respect to the supervisory work force practices of Pan Am at its John F. Kennedy International Airport facility (\"JFK\"). Specifically, the complaints charged that since January 1980 Pan Am had engaged in a systematic practice of age based discrimination in executing its \"Reduction in Force\" (\"RIF\") program, whereby older, more experienced supervisors have been terminated or intimidated into retirement while younger, less experienced and lower paid supervisory personnel have been retained and promoted.\nPan Am resisted the subpoena, contending that it imposed an excessive burden on a struggling business seeking to cope with a changed business climate and rehabilitate itself, and also on the ground that much of the information sought was irrelevant and the scope was excessively broad and unrelated to the level of corporate discretion under investigation. In addition, Pan Am asserted to this Court that the statistical information sought by Part II of the subpoena was not a valid sample of the supervisory work force under investigation, and therefore a \"useless fishing expedition.\" Pan Am also contended that the subpoena should be limited because its scope was inconsistent with the published \"ADEA Case Processing Procedures\" of the EEOC, and argued in a moving fashion to this Court that the tremendous bulk of data demanded by this subpoena, and the manpower necessary to accumulate this information would pose an unreasonable and excessive burden on its already precarious financial state.\nThis Court by a Memorandum and Order dated March 23, 1983 reached the following conclusion:\n\"In subpoena enforcement proceedings, absent a showing that the investigating agency is without authority, or the information sought irrelevant, or that the demand *1532 itself is too indefinite, or compliance too burdensome, the court will not restrict the investigatory power granted the EEOC by Congress. United States v. Morton Salt Co., 338 U.S. 632, 652 [70 S. Ct. 357, 368, 94 L. Ed. 401] (1950); Federal Trade Commission v. Rockefeller, 591 F.2d 182 (2d Cir.1979); See Rule 45(b), F.R.Civ.P. and Title VII, 42 U.S.C. § 2000e-8. Those concerned with the burdensome effect of such demands on commerce should address themselves to Congress for relief.\nFor the purposes of this motion, it is conceded that the EEOC is acting within its statutory authority and that the information demanded by Part 2 of the subpoena is sufficiently definite.\"\nThis Court concluded that the information sought was relevant and that the EEOC was acting within its investigatory powers to examine it. This Court also held that while the subpoena was burdensome, the Court was unable to find that compliance would \"unduly disrupt or seriously hinder normal operation\" of Pan Am, thereby imposing an excessive burden upon it. The Court directed Pan Am to permit the EEOC to make an on site examination of all relevant records, and held that following such discovery in place, production of any additional information necessary to comply with the provisions of Part II of the subpoena should be compelled only upon further formal application to the Court.\nThis determination was apparently unsatisfactory to both parties. However, no appeal was taken, and the process of compliance therewith commenced.\nSome two months later and on June 23, 1983, the Supreme Court decided the case of Immigration and Naturalization Service v. Chadha, ___ U.S. ___, 103 S. Ct. 2764, 77 L. Ed. 2d 317 (1983). In Chadha, the Court held that the one-house legislative veto of an exercise by the Executive Branch of authority delegated by Congress (to the Attorney General) was unconstitutional and that such a provision was severable from the initial delegation, and void.\nPossibly the Court in Chadha was unaware of the far reaching possibilities of its sudden discovery that the time honored process of legislative veto, authorized since 1932 in 295 separate Congressional procedures in 196 different statutes, was unconstitutional.[1] Perhaps it did not foresee the consequent disruption to ongoing litigation. In any event, the Court made no attempt to deal with the issue of whether its newly declared rule was retrospective, and the related issue of whether all such delegations remained valid, with only the reserved veto power stricken as void.[2]\nIt was only a matter of time before litigants situated as is Pan Am would discern that the one house veto provision of the Reorganization Act of 1977 was also unconstitutional. The delegation of power from Congress to the President therein contained in turn permitted the President in 1978 to reorganize the Executive Branch of Government so as to transfer enforcement authority for the ADEA and the Equal Pay Act to the EEOC from the Department of Labor, which he did.\nChadha was followed shortly by a motion to dismiss a lawsuit in the United States District Court for the Southern District of Mississippi, EEOC v. Allstate Insurance Co., 570 F. Supp. 1224 (S.D.Miss., 1983). This action involved a suit under the Equal Pay Act, enforcement of which was transferred from the Department of Labor to the EEOC by the same Reorganization Plan No. 1 of 1978 which also transferred the ADEA enforcement function to the EEOC. Judge Barbour dismissed that action by summary judgment for lack of *1533 capacity to sue, holding that the Reorganization Act of 1977 was unconstitutional. His opinion finds standing on the part of the defendant employer to raise the issue, concludes that the provisions here considered are not severable, and that Chadha must be applied retroactively.\nThe Court in Allstate also held (at 1228):\n\"Does the fact that no veto was interposed alter the requirements of bicameralism and presentment?\nThe question presented by this case is not directly answered in Chadha. Chadha did emphasize the importance of preserving the separation of powers between the executive and legislative branches of government [footnote omitted]. Moreover, the Court noted that `[t]o allow Congress to evade the strictures of the Constitution and in effect enact Executive proposals into law by mere silence cannot be squared with Art. I.' Chadha, [___] U.S. at [___] n. 22, 103 S. Ct. at 2787 n. 22. It is evident from the opinion in Chadha that `every use of the legislative veto' is invalid [footnote omitted].\nThe fundamental problem with the legislative retention of veto power is that it places the executive in the position of legislating subject to a Congressional veto [footnote omitted]. In this sense it stands Art. I of the Constitution on its head. Congress had various tools by which it may control its grant of power, but `Congress must abide by its delegation of authority until that delegation is legislatively altered or revoked.' Id. 103 S.Ct. at 2786. Because the Court in Chadha clearly sweeps with a broad stroke in its holding that the legislative one-house veto is unconstitutional, this Court must follow that precedent [footnote omitted] by holding that a retained one-house veto is unconstitutional even when not exercised.\"\nThe Allstate decision evoked a motion from Pan Am, heard by this Court on October 26, 1983, to vacate its prior decision enforcing the subpoena. This Court's view of the significance of the issue thus raised and Pan Am's position in the matter could be discerned from colloquy between counsel for Pan Am and the Court as follows:\n\"THE COURT: So it's your contention that the Department of Labor could enforce the Act in this case but that the EEOC couldn't?\nMR. MADIGAN [Attorney for Pan Am]: That's correct.\nTHE COURT: Are you just quarreling about which bureaucrat is to pursue you? And supposing it were the conclusion of this court that you were right, wouldn't everything have to be held in abeyance until the bureaucrats could change? You get a different face with the same issues.\nMR. MADIGAN: That may well be.\n* * * * * *\nTHE COURT: It's kind of a bootless motion isn't it? If you are right it wouldn't necessarily lead to vacating any of the orders. It would just simply change the identity of the persons who can pursue your client.\nMR. MADIGAN: I think that presumes that an identical approach would be taken by a different agency, and I don't think that that is a fair presumption when we are merely at the stage of investigating some charges that have been filed.\nI don't think it can fairly be stated that we would be before you right now with the Department of Labor instead of the EEOC if what we are describing had not transpired.\nTHE COURT: I'd like to understand why it would make any difference.\nMR. MADIGAN: Because we wouldn't be subjected to this investigation and the expenses associated with it.\nTHE COURT: Are you suggesting that the Department of Labor doesn't conduct wasteful investigations?\nMR. MADIGAN: I don't know whether the Department of Labor would or would not, and that is precisely the problem. I think that is merely a speculative notion. I don't think that the EEOC can stand before you and say that the Department of Labor would be proceeding in precisely *1534 the same fashion. They haven't submitted at least anything that I have seen to indicate that such is the case other than to take the position. They haven't sought to include the Department of Labor.\n* * * * * *\nTHE COURT: You want to get into a Never-never-land where the court says that it belongs to the Department of Labor and the Department of Labor says, `Oh, no, it should have stayed with the EEOC.'\nMR. MADIGAN: I think it's the EEOC who hopes to have the Never-never-land result achieved. They are the ones who say ignore the unconstitutionality of the Reorganization Act, that no past, present, or future litigant can raise it because they say even if you were to find an agreement with our position, that it makes the entire act unconstitutional and that they have no authority, nevertheless, you should decide that it doesn't apply to this case or any other, and therefore it goes off into space some-where.\n* * * * * *\nMR. MADIGAN: ... It's mere speculation to say the same result would obtain if it was a different agency.\nTHE COURT: All right, but your position is that if the other agency [Department of Labor] signs the subpoena, that you will comply with it?\nMR. MADIGAN: That only one agency has the authority, and that we will recognize the one that we feel has the authority, and that is the Department of Labor.\"\nThe Court attempted to resolve the problem presented by Chadha, followed by Allstate, in a manner considered both fair and pragmatic. By its oral order and decision of October 26, 1983, this Court held:\n\"THE COURT: The court disposes of this application in the following fashion:\nThe court finds that the pendency of an appeal in the Fifth Circuit and a direct appeal to the Supreme Court in the Allstate case makes it inexpedient for this court at this time to grant the relief requested herein to the extent that it would require this court to consider de novo a complex and difficult constitutional issue.\nThe court recognizes that any delay in this proceeding, if it is a meritorious proceeding, could redound to the detriment of public policy and also perhaps to the detriment of individual employees of Pan American or former employees of Pan American.\nThe Court believes that a rational disposition of this motion is as follows, and the court now makes the following directions:\nCompliance with the subpoena duces tecum issued by the petitioner, Equal Employment Opportunity Commission, EEOC, dated March 23, 1983, is from henceforward stayed in all respects unless and until that subpoena or a document substantially identical as to form shall be issued to Pan American World Airways bearing the signature of the Secretary of Labor or his duly authorized deputy for the purpose of issuing enforcement subpoenas in those statutory matters as to which the Secretary of Labor has jurisdiction to investigate and enforce compliance with such statutes.\nThe court does not in any way attempt to prejudge the issue of whether the Secretary of Labor will issue such a subpoena or will not do so. The court does not at this point consider whether the Secretary of Labor can associate [with] himself in the investigation the staff members of Equal Opportunity Employment Commission, but I think it's quite obvious that if he wishes to, he may, and absent a court order staying any such subpoena when issued, it should be complied with; and the court does not have to decide what might happen tomorrow but I am giving you an indication.\nThe court declines to dismiss the EEOC's underlying petition herein or directing the EEOC to return to Pan Am the documents it has previously obtained because the court believes that one branch or another of the federal government will have and does have the continuing right to demand compliance with *1535 the statutes and to investigate alleged cases of noncompliance, and that if in the final analysis it be adjudged that the decision in EEOC against Allstate is affirmed, that the government could be expected to retransfer these activities to the Department of Labor, [or] attempt to repass the Reorganization Act without violating the principles of the Chadha case, so that in this court's view, the Equal Employment Opportunity Commission can continue to hold those documents and can continue to consider them for the benefit of whatever branch of the federal government shall ultimately obtain the lawful right to administer the act and enforce compliance with the act, and that in the interim it's not contested that the Secretary of Labor has the right to investigate and subpoena documents, and compel compliance, and if he does so, that should be permitted, and pending such time as he shall resolve to pursue the production and inspection of additional documents, compliance with the subpoena henceforward should be and it hereby is stayed.\"\nThereafter, by a motion heard December 20, 1983, the EEOC sought relief from this Court's oral order of October 26, 1983, essentially upon its conclusion that Allstate was wrongly decided. It appeared at the oral argument of that motion that no attempt had been made by the EEOC to have the Department of Labor join in the subpoena in the case of Pan Am, and thereby remove any question as to the legitimacy of this investigation. Instead, the EEOC concentrated its attack on the conclusion reached in the Allstate case and supported here by Pan Am. Apparently the reasons, if any there be, for failing to do so relate to turf consciousness among bureaucrats within different departments of the same branch of Government, with which this Court has little patience.\nWe concede at the outset of our discussion that the decision in Allstate is not binding precedent upon this Court. Indeed it would not be binding were its author appointed for this district. See Farley v. Farley, 481 F.2d 1009, 1012 (3rd Cir. 1973), which holds:\n\"[E]ven if [prior E.D.Pa. district court decision] had decided the precise issue, its holding is not a precedent binding on other courts. The decision of a three-judge court is entitled to no more weight than any other district court decision. See 1B J. Moore, Federal Practice ¶ 0.402[1] n. 29 at 62. Consequently, the [prior district court decision] is not necessarily binding on any other district court, id. at 61, and does not invariably have to be followed in the Eastern District. Id. at 58-59.\"\nSee also, United States v. Birney, 686 F.2d 102, 107 (2d Cir.1982) (law of the case); Aknin v. Phillips, 424 F. Supp. 104, 105 (S.D.N.Y.1976) (this court may disregard conflicting decision of the Third Circuit).\nHowever, this does not suggest that the decision in Allstate, which gives thoughtful consideration to all aspects of this problem presently before us, should be disregarded. This is particularly true when there is no clear signal from the Supreme Court to assist the inferior courts in dealing with a host of foreseeable post-Chadha problems. Whether Judge Barbour is right or wrong in his analysis will depend entirely on the analysis of higher courts. No jurisprudential purpose will be served, and scarce judicial resources on all levels will be wasted if we, and every other district judge who happens to have an Equal Pay Act or ADEA lawsuit on his or her docket should immediately woo the Muse and set down a lengthy opinion having the same 50-50 chance of being right as the Allstate opinion has.\nHowever, as Jimmy Durante used to say, \"everybody wants to get inta de Act,\" and it was only a matter of time before another equal and coordinate district court found it desirable to add to the learning on the point. Familiarity with Muller Optical Co. v. EEOC, 574 F. Supp. 946, not yet reported (W.D.Tenn., November 10, 1983), is assumed. In Muller Optical, Judge Odell Horton reviewed the same issues dealt with in Allstate, supra, and expressed his dissatisfaction, as he had the right to do, with that decision, holding, correctly, that *1536 \"[t]hat decision, of course, is not binding on this Court,\" (fn. 1 at p. 950) and describing his Court as \"sailing in (sic) largely uncharted seas.\" (Id.)\nThe Court in Muller Optical went on to distinguish Chadha because with respect to the Reorganization Act the one-house veto had not been exercised. Indulging in what it characterized as an \"unavoidable attempt at clairvoyance,\" the court considered the issue of severability, reaching a different conclusion than Allstate, for reasons expressed therein which this Court finds no more and no less rational and persuasive than the reasoning relied on in Allstate to support a contrary result.\nThe order denying an injunction, in Muller Optical, like the judgment of dismissal in Allstate, was appealable, and indeed an appeal to the Sixth Circuit was docketed on November 29, 1983. Indeed, as to Allstate, we have been informed by counsel that the Supreme Court has already noted probable jurisdiction for direct appeal, and a separate appeal has been docketed in the Fifth Circuit on October 19, 1983.\nFlush with victory after Muller Optical, the EEOC presented the instant motion to be relieved from this Court's order of October 26, 1983.\nThat motion, heard December 20, 1983, is denied. This Court perceives no significant change in circumstances merely because of the subsequent issuance of the Muller Optical opinion. We think our temporary resolution of the issue as of October 26, 1983 was then and remains now reasonable, practical and fair. No legitimate excuse is proffered for failing to proceed thereunder. Although the Secretary of Labor has never been asked to authorize the subpoena, this Court regards as highly speculative Pan Am's suggestion, or hope, that he would not do so if asked, because of the claimed burdensome and meritless character of the underlying grievance.\nThe appeal as of right which could have been taken from our October 26, 1983 order was not taken. There is no significant change in the relevant facts, merely by the issuance of the Muller Optical opinion.\nWere respondent genuinely concerned with this particular investigation, it could have obtained ratification and participation from the Secretary of Labor, more than two months ago. Alternatively, it may seek legislative relief from the Congress, either limited to this enforcement function, or extending to a general amnesty or ratification of all that has been done since 1932 in reliance on the presumed constitutionality (or more likely, the presumed non-justiciability) of the one-house veto. Indeed it could move for reconsideration by the Supreme Court of the Chadha case itself, so as to obtain a stay similar to that granted in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S. Ct. 2858, 73 L. Ed. 2d 598 (1982), or a declaration of non-retroactivity. Or, it can litigate Allstate and/or Muller Optical to their ultimate unpredictable denouement.\nApparently, as our hearing of December 20, 1983 made clear, the EEOC will do none of these. Rather, it has developed an apparent strategy to wage total litigation on eleven or twelve different fronts wherever and whenever it can, requiring district courts in every circuit to relitigate the issue of AllstateMuller Optical so that each Circuit may rule separately thereon, with ultimate recourse to the Supreme Court to resolve the foreseeable conflict in the Circuits. This appears to me to be unnecessary, unfair to the employers and employees alike, and wasteful as well as expensive. We should not allow our scarce judicial resources to be squandered in such a profligate fashion.\nMotion denied.\nSo Ordered.\nNOTES\n[1] Justice Powell concurring noted that \"the breadth of this holding gives one pause.\"\n[2] This Court believes that a respectable argument can be made that Chadha should not be applied retrospectively. Some prudential considerations must affect such sudden far sweeping constitutional pronouncements by the Court. We note that neither the notorious Miranda rule nor Mapp were applied retrospectively. To have done so would have produced utter chaos. Chadha invites chaos. The Supreme Court could have considered this problem, but it did not. Cf. Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S. Ct. 2858, 73 L. Ed. 2d 598 (1982).\n\n",
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| S.D. New York | District Court, S.D. New York | FD | New York, NY |
467,528 | null | 1986-05-23 | false | mary-mcclinton-wardwell-on-behalf-of-herself-and-all-persons-similarly | null | null | Mary McClinton Wardwell, on Behalf of Herself and All Persons Similarly Situated v. The School Board of Palm Beach County, Florida and Thomas J. Mills, Superintendent of Public Schools for Palm Beach County | null | null | null | null | null | null | null | null | null | null | null | 43 | Published | null | null | [
"786 F.2d 1554"
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"opinion_text": "786 F.2d 1554\n 40 Fair Empl.Prac.Cas. 1006,41 Fair Empl.Prac.Cas. 38,40 Empl. Prac. Dec. P 36,109,40 Empl. Prac. Dec. P 36,353, 31 Ed. Law Rep. 388\n Mary McClinton WARDWELL, on behalf of herself and allpersons similarly situated, Plaintiff-Appellee,v.The SCHOOL BOARD OF PALM BEACH COUNTY, FLORIDA and Thomas J.Mills, Superintendent of Public Schools for PalmBeach County, Defendants-Appellants.\n No. 85-5516.\n United States Court of Appeals,Eleventh Circuit.\n April 22, 1986.Opinion on Rehearing May 23, 1986.\n \n Richard L. Oftedal, Abbey G. Hairston, West Palm Beach, Fla., Patrick W. Shea, Barbara A. Brown, Washington, D.C., R. Lawrence Ashe, Jr., Paul, Hastings, Janofsky & Walker, Atlanta, Ga., for defendants-appellants.\n Larry Klein, Jose M. Sosa, Sidney M. Dubbin, W. Palm Beach, Fla., for plaintiff-appellee.\n Appeal from the United States District Court for the Southern District of Florida.\n Before HILL and ANDERSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.\n PER CURIAM:\n \n \n 1\n Wardwell filed this action against her employer, the School Board of Palm Beach County, Florida and Thomas J. Mills, Superintendent of Schools, charging that they discriminated against her because of her sex in violation of Title VII of the Civil Rights Act of 1964.1 Wardwell's complaint alleged that the School Board and Mills wrongfully denied her a promotion to the position of Acting Director of Transportation for the school system and that they constructively discharged her from her position as Assistant Director of Transportation.\n \n \n 2\n A bench trial was held in the United States District Court for the Southern District of Florida. The trial judge found that (1) Wardwell had \"established a prolonged, persistent and pervasive pattern of discrimination against women in the thirty-two administrative high-level, non-instructional positions of Assistant Director or higher in Defendant's hierarchy,\" (2) that the School Board and Mills intentionally discriminated against Wardwell in selecting a man for the position of Acting Director of Transportation, and (3) that appellants' treatment of Wardwell and her subsequent resignation amounted to a constructive discharge. Record on Appeal, vol. 1 at 20-29. The district court ordered that Wardwell be immediately returned to her position as Assistant Director of Transportation and awarded her back pay, costs, and attorney's fees.\n \n \n 3\n The School Board and Mills now appeal this decision, claiming that the district court's findings of a pattern of discrimination, intentional discrimination, and constructive discharge are all clearly erroneous. We conclude that the pattern of discrimination finding and the constructive discharge finding are clearly erroneous. We vacate the intentional discrimination finding and remand.\n \n I. DISCUSSION\n A. Pattern of Discrimination\n \n 4\n The School Board and Mills claim that the district court's finding that a pattern of discrimination against women existed in the Palm Beach County school system is clearly erroneous. We need not decide whether the evidence is sufficient to support this finding. Wardwell has conceded on appeal that the evidence did not support such a finding.\n \n B. Intentional Discrimination\n \n 5\n The district court found that Wardwell had satisfied her burden of making out a prima facie case of discrimination under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 95 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The School Board does not challenge that finding on appeal. Thus, the burden shifted to the School Board \"to articulate some legitimate, nondiscriminatory reason\" for its actions. Id. at 802, 93 S.Ct. at 1824. The School Board advanced three reasons for the failure to promote Wardwell to the position of Acting Director. These reasons were: (1) that Superintendent Mills followed a policy of not appointing anyone to an acting position if that person might be a candidate for the permanent position; (2) that the investigation of wrongdoing in the Transportation Department was still continuing at the time Goode was appointed; and (3) that Superintendent Mills did not want to appoint anyone within the Transportation Department as Acting Director because of the way such a choice might be perceived by other employees and the public in light of the intense publicity concerning the investigation. The district court found that the Board's reasons were pretextual and that the Board intentionally discriminated against Wardwell in failing to appoint her Acting Director. The issue on appeal relates to the district court's analysis of these three reasons and its finding that they were pretextual.\n \n \n 6\n We decline the School Board's invitation to reverse this finding as clearly erroneous. However, several factors persuade us that the district court's finding of intentional discrimination must be vacated and the case remanded. First, we are not satisfied that the trial judge's erroneous finding of a pattern of discrimination did not influence his conclusion that the School Board intentionally discriminated against Wardwell. Thus, a remand is necessary for a redetermination of the intentional discrimination issue in light of this court's finding that the pattern of discrimination finding is clearly erroneous.\n \n \n 7\n The second factor prompting our remand decision relates to the district court's handling of the School Board's argument that they declined to appoint Wardwell as Acting Director because of the public's perception of such a choice. The district court rejected this reason in conclusory fashion as \"lack[ing] any support in fact or logic.\" Record on Appeal, vol. 1 at 28. However, the record contains an ample factual basis to support this reason. Furthermore, it comports with logic and common sense that the general public might frown upon appointing the Assistant Director when the Director himself has just been relieved of duty under a widely publicized cloud of suspicion. We conclude that the district court was clearly erroneous in rejecting this reason as lacking in any support in fact or logic.\n \n \n 8\n Third, we vacate and remand the intentional discrimination finding because the district court's primary reason for rejecting another of the School Board's proffered explanations is clearly erroneous. The School Board asserted that one reason Wardwell was not promoted to Acting Director was that the investigation of the Transportation Department was still continuing. The district court rejected this reason because \"the final report of the investigation had been completed and turned over to the State Attorney's Office\" over a month before the personnel decision. Record on Appeal, vol. 1 at 28. However, the record evidence is overwhelming that the investigation was in fact continuing. We thus conclude that this subsidiary finding also is clearly erroneous. It is true that there is no evidence that Wardwell was suspected of wrongdoing at the time of the personnel decision. However, it is also true that the investigation was ongoing. It would not have been unreasonable for the School Board to decline to appoint anyone in that Department while the investigation was continuing; such a reason obviously does not constitute discrimination. If in fact this was the reason that the School Board did not appoint Wardwell, then Wardwell's claim of discrimination would fail.\n \n \n 9\n Finally, since the district court must on remand address the intentional discrimination issue ab initio in any event, we direct that the court also address again the School Board's other asserted reason, i.e., the alleged new policy of not appointing anyone to an acting position who might fill the permanent position. We request that the district judge make an explicit finding whether or not Superintendent Mills did in fact have such a policy, whether formal or informal, written or oral, known widely or not; and whether or not such policy, if it did exist, was a factor in Superintendent Mills' decision.\n \n \n 10\n Thus, on remand the district court shall make new findings of fact and conclusions of law on the intentional discrimination issue, taking the foregoing matters into particular attention.\n \n C. Constructive Discharge\n \n 11\n The law in this circuit with respect to constructive discharge is well established. To show constructive discharge, the employee must prove that his working conditions were so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign. Bourque v. Powell Electrical Manufacturing Co., 617 F.2d 61, 65 (5th Cir.1980); Young v. Southwestern Savings & Loan Ass'n, 509 F.2d 140, 144 (5th Cir.1975).2 The constructive discharge issue, being a question of fact, is subject to the clearly erroneous standard of review. See Buckley v. Hospital Corporation of America, 758 F.2d 1525, 1530-31 (11th Cir.1985) (treating constructive discharge as a question of fact for the jury to decide); see also Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982) (discussing the distinction between questions of law and questions of fact). Although there is evidence to support the district court's finding of constructive discharge, because our review of the evidence leaves us with the definite and firm conviction that no reasonable person in Wardwell's position would have felt compelled to resign, we hold that the district court's finding that Wardwell had been constructively discharged is clearly erroneous. See United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948).\n \n \n 12\n The trial judge, in his written findings, offered some factual support for his conclusion that Wardwell had been constructively discharged. The district judge pointed out that Wardwell was qualified for the Acting Director position whereas Goode was not, and that Wardwell was given an inadequate explanation of the personnel decision. Record on Appeal, vol. 1 at 28. While the foregoing may be some evidence of discrimination, and while a discriminatory refusal to promote would be relevant to the issue of whether Wardwell was constructively discharged, such evidence is not always sufficient to support a finding of constructive discharge. See Bourque, 617 F.2d at 65-66.\n \n \n 13\n In addition to the foregoing evidence of discrimination relied upon by the district court, Wardwell also argues on appeal that she was overburdened with work after Goode was appointed Acting Director. This extra burden was in part the result of Goode's inexperience with transportation matters and in part due to Wardwell's already heavy workload. Although we are satisfied that Wardwell was required to take on additional duties after Goode's appointment, we note that even then she was working from 8 a.m. to 6:30 p.m. five days a week. There is no evidence in the record to suggest why the necessity to work these hours during the transition period here involved would pose an intolerable burden.\n \n \n 14\n After a careful review of this record, taking into consideration the specific evidence in this record from which it may or may not be inferred that the failure to promote Wardwell was discriminatory, and taking into consideration the above mentioned working conditions in her existing job, we have a definite and firm conviction that discrimination of this nature and working conditions of this nature cannot constitute the intolerable working conditions necessary to prove a constructive discharge. While Wardwell may have been frustrated by her failure to be appointed Acting Director, and while this may have been a matter of some embarassment to her, these facts, together with her added workload, simply do not rise to the intolerable level at which a reasonable person would feel com-pelled to resign. Thus, we conclude that the district court's finding on the constructive discharge issue is clearly erroneous.\n \n II. CONCLUSION\n \n 15\n Having reviewed the record designated for appeal and the applicable law, we hold that the district court's finding of a pattern of a discrimination and its finding that Wardwell was constructively discharged are clearly erroneous. We vacate the portion of the district court's opinion regarding intentional discrimination and remand this issue for further proceedings not inconsistent with this opinion.\n \n \n 16\n REVERSED in part, VACATED in part, and REMANDED with instructions.\n \n \n 17\n On April 22, 1986, this court issued a decision reversing as clearly erroneous the district court's findings that appellants, the School Board of Palm Beach County, Florida and Superintendent Thomas J. Mills (collectively \"the School Board\") had engaged in a pattern and practice of discrimination and had constructively discharged Mary Wardwell. We also vacated the district court's finding that the School Board had intentionally discriminated against Wardwell and remanded this issue for further proceedings.\n \n \n 18\n The School Board has moved to clarify our disposition of this case with respect to the district court's injunction requiring the School Board to reinstate Wardwell as Assistant Director of Transportation. Our conclusion that the district court was clearly erroneous in finding a constructive discharge necessarily means that the injunction requiring reinstatement must be vacated.\n \n \n 19\n The petition for rehearing is GRANTED to the extent that our previous opinion is amended to specify that the injunction requiring reinstatement is VACATED.\n \n \n \n 1\n This opinion sometimes refers to both appellants collectively as the \"School Board\" or the \"Board.\"\n \n \n 2\n In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), this court adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. Id. at 1209\n \n \n ",
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| Eleventh Circuit | Court of Appeals for the Eleventh Circuit | F | USA, Federal |
398,871 | Barrett, McWILLIAMS, Seymour | 1982-01-14 | false | united-states-v-stanley-welton-mathis | null | United States v. Stanley Welton Mathis | UNITED STATES of America, Plaintiff-Appellee, v. Stanley Welton MATHIS, Defendant-Appellant | Betty Outhier Williams, Asst. U. S. Atty. (now U. S. Atty.), Muskogee, Okl. (James E. Edmondson, Acting U. S. Atty., and G. Steven Stidham, Asst. U. S. Atty., Muskogee, Okl. with her on the brief), for plaintiff-appellee., Richard C. LaFond of LaFond & Evangelista Denver, Colo., for defendant-appellant. | null | null | null | null | null | null | null | Argued and Submitted Oct. 1, 1981., Certiorari Denied May 24,1982. | See 102 S.Ct. 2275. | null | 2 | Published | null | <parties id="b1221-8">
UNITED STATES of America, Plaintiff-Appellee, v. Stanley Welton MATHIS, Defendant-Appellant.
</parties><br><docketnumber id="b1221-11">
No. 80-2132.
</docketnumber><br><court id="b1221-12">
United States Court of Appeals, Tenth Circuit.
</court><br><otherdate id="b1221-13">
Argued and Submitted Oct. 1, 1981.
</otherdate><decisiondate id="AJQ">
Decided Jan. 14, 1982.
</decisiondate><br><otherdate id="b1221-14">
Certiorari Denied May 24,1982.
</otherdate><br><seealso id="b1221-15">
See 102 S.Ct. 2275.
</seealso><br><attorneys id="b1222-4">
<span citation-index="1" class="star-pagination" label="1158">
*1158
</span>
Betty Outhier Williams, Asst. U. S. Atty. (now U. S. Atty.), Muskogee, Okl. (James E. Edmondson, Acting U. S. Atty., and G. Steven Stidham, Asst. U. S. Atty., Muskogee, Okl. with her on the brief), for plaintiff-appellee.
</attorneys><br><attorneys id="b1222-5">
Richard C. LaFond of LaFond & Evangelista Denver, Colo., for defendant-appellant.
</attorneys><br><judges id="b1222-6">
Before McWILLIAMS, BARRETT and SEYMOUR, Circuit Judges.
</judges> | [
"668 F.2d 1157"
]
| [
{
"author_str": "McWILLIAMS",
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": "http://bulk.resource.org/courts.gov/c/F2/668/668.F2d.1157.80-2132.html",
"author_id": null,
"opinion_text": "668 F.2d 1157\n UNITED STATES of America, Plaintiff-Appellee,v.Stanley Welton MATHIS, Defendant-Appellant.\n No. 80-2132.\n United States Court of Appeals,Tenth Circuit.\n Argued and Submitted Oct. 1, 1981.Decided Jan. 14, 1982.\n \n Betty Outhier Williams, Asst. U. S. Atty. (now U. S. Atty.), Muskogee, Okl. (James E. Edmondson, Acting U. S. Atty., and G. Steven Stidham, Asst. U. S. Atty., Muskogee, Okl. with her on the brief), for plaintiff-appellee.\n Richard C. LaFond of LaFond & Evangelisti, Denver, Colo., for defendant-appellant.\n Before McWILLIAMS, BARRETT and SEYMOUR, Circuit Judges.\n McWILLIAMS, Circuit Judge.\n \n \n 1\n Stanley Mathis was convicted by a jury of unlawfully transporting a stolen flatbed truck and a farm tractor from Howe, Texas, to Durant, Oklahoma, in violation of 18 U.S.C. § 2314 (1976). It is undisputed that on March 1, 1978, at approximately nine o'clock p. m., a flatbed truck and a farm tractor were stolen from a John Deere farm implements dealership in Howe, Texas. The tractor was driven onto the flatbed of the truck, and the truck, with tractor, was driven to Durant, Oklahoma, where the driver of the truck was arrested and the vehicles were recovered by the local police.\n \n \n 2\n Four men, including Mathis, were allegedly involved in the crime. At Mathis' trial, two alleged accomplices, Gray and Johnson, appeared as government witnesses and testified that Mathis had participated in the theft. Although Mathis did not testify, his defense was that he was not involved in the transaction, and, in that regard, Mathis attempted to establish an alibi for the evening of the theft. It was on this general state of the record that a jury convicted Mathis.\n \n \n 3\n On appeal, Mathis raises several matters, none of which justifies reversal. The first issue pertains to the closing argument of government counsel. As indicated, Mathis sought to establish an alibi by calling several witnesses, whose testimony, when taken together, tended to indicate that on the evening of March 1, 1978, Mathis was in Choctaw County, Oklahoma. Specifically, three defense witnesses testified, in effect, that Mathis was with the sheriff and deputy of Choctaw County on the evening of March 1, 1978, doing undercover police work by attempting to \"set-up\" a drug purchase. Two of these witnesses were at the time in the county sheriff's office, and the third was a private investigator for a railroad. In cross-examination of the county sheriff and his deputy, the prosecutrix established that a radio log had been kept concerning the actions of the sheriff and his deputy on the evening of March 1, 1978. Without objection by defense counsel, both witnesses were cross-examined, at some length, about the log and how it was made. Both the sheriff and his deputy stated that they had not checked the radio log prior to testifying at Mathis' trial. On redirect examination of the sheriff, the sheriff conceded that the radio log would reflect accurately all information that had been called in, although he noted that the possibility always existed that the sheriff or his deputies, in a given case, might fail to call in as they should. Despite these references to a radio log, neither the government nor the defense offered the log into evidence. It was in this factual setting that government counsel made certain comment which Mathis now claims requires a reversal.\n \n \n 4\n In her closing argument, government counsel initially made no reference to Mathis' alibi witnesses, or the radio log, but instead concentrated on establishing the credibility of the government's two key witnesses, Johnson and Gray, both of whom, as indicated, were alleged accomplices of Mathis.\n \n \n 5\n In his closing argument, defense counsel, no doubt believing that certain statements made during the cross-examination of the sheriff and the deputy suggested to the jury that the radio log might contradict their testimony, made the following comments concerning the radio log:\n \n \n 6\n Where is it? Where is the radio log that she wanted to try to scare these people off their testimony with, and shake them up by suggesting that maybe they had-\n \n \n 7\n The prosecutrix objected to the foregoing statement on the ground that the radio log was not in evidence. The trial judge thereupon gave a general admonition to the jury. Defense counsel then concluded his comments by asserting that any suggestion of inconsistency between the testimony of the sheriff and his deputy and the radio log was not supported by anything in evidence, and that, accordingly, the alibi testimony was uncontradicted.\n \n \n 8\n In her rebuttal, the prosecutrix stated that, unlike defense counsel, she did not accuse any witness of perjuring himself. She conceded that Mathis undoubtedly had on occasion assisted the sheriff of Choctaw County in undercover police work, but suggested that the sheriff and his deputy were mistaken when they indicated that they were with Mathis on the evening of March 1, 1978. Specifically, the prosecutrix made the following statement:\n \n \n 9\n Ladies and gentlemen, there is no reason to believe that Stanley Mathis didn't do an undercover buy for the sheriff. He did it sometime after Lang gave the sheriff $30, $30 which the sheriff never used for that purpose. And a year and a half later, it's very easy to see how the sheriff, who kept no records, might think it was that Wednesday when, in fact, it was Friday or Saturday. They told you who they were with. Did you notice one other thing about their times? Sheriff Buchanan didn't even start his buy until Undersheriff Akins was already off work. One of them started it at approximately 11:00, where the other one went off work at 11:00. They were both confused as to who was with whom when. But neither one of them doubted what the log itself said, or that the log was kept, or that the log was probably an accurate reflection of what was radioed in to the dispatcher. (emphasis added).\n \n \n 10\n At this point in the prosecutrix's rebuttal argument, defense counsel objected on the ground that the radio log was not in evidence, and that any reference thereto was improper. In response to such objection, the trial judge spoke as follows:\n \n \n 11\n Well, there has been some question about the log. I don't think the log itself is offered in evidence. But there was some questioning about the log, and (if) what you are speaking about has to do with what is evidence, then you may consider it. Otherwise, you may not.\n \n \n 12\n As stated, Mathis' first ground for reversal is based upon the prosecutrix's reference, in closing argument, to the radio log. Such comment, asserts defense counsel, alluded to a matter not in evidence and, under the Fifth Amendment, constituted a denial of due process. We disagree.\n \n \n 13\n In the first place, we do not believe the statement of the prosecutrix, which consists of only one sentence, was, under the circumstances, improper. Without objection, both the sheriff and his deputy had been cross-examined as to the existence of a radio log, how it was kept, and whether either had referred to it before testifying at Mathis' trial. Such being the state of the record, we think that the comment of the prosecutrix in her closing argument was not outside the record, but inside it. See United States v. Jones, 482 F.2d 747, 753 (D.C.Cir.1973).\n \n \n 14\n Even if there was error which was not adequately corrected by the trial court in its instructions, such would, in our view, be so trivial that it would not rise to constitutional proportions. There is no per se rule mandating reversal of a conviction in all cases where a prosecutor goes outside of the record in closing argument. United States v. Splain, 545 F.2d 1131, 1135 (8th Cir. 1976); Devine v. United States, 403 F.2d 93, 96 (10th Cir. 1968), cert. denied, 394 U.S. 1003, 89 S.Ct. 1599, 22 L.Ed.2d 780 (1969). Each case should be examined independently with a view toward ascertaining whether there is reason to believe that such statement affected the ultimate verdict of the jury. See also, United States v. Greene, 497 F.2d 1068, 1085 (7th Cir. 1974), cert. denied, 420 U.S. 909, 95 S.Ct. 829, 42 L.Ed.2d 839 (1975). And in Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974), the Supreme Court stated that not every trial error or infirmity constitutes a failure to observe that fundamental fairness required by the Constitution.\n \n \n 15\n Mathis' second ground for reversal is rather different. After the jury found Mathis guilty, an Assistant United States Attorney, who had not himself tried the case, filed with the trial court a motion to set aside Mathis' conviction and to enter a judgment of acquittal, on the ground that Gray and Johnson, the two government witnesses who had implicated Mathis, had committed perjury. This motion was based solely on the fact that Mathis had \"convinced\" the Assistant United States Attorney that the alleged accomplices, Gray and Johnson, had perjured themselves. After, but not before, filing his motion, the Assistant United States Attorney instructed FBI agents to contact Gray and Johnson. Despite a promise of no prosecution for perjury should they recant their trial testimony, both Johnson and Gray refused to change their stories about the theft. As a result of these new interviews, the Assistant United States Attorney apparently changed his mind and determined, to his own satisfaction, that there had been no perjury. A report of these interviews was given to the trial court. When the motion to set aside the verdict came on for hearing, the government offered no evidence to support its earlier charge of perjury. Because of the government's inability to furnish the court with any documentation to support the allegation of perjury, the trial court denied the motion, with the comment that under the circumstances the jury verdict and the sentence imposed thereon should not be disturbed by the court. Mathis now asserts that such ruling constitutes reversible error. We do not agree.\n \n \n 16\n Just why the Assistant United States Attorney blew \"hot and cold\" on this matter is not apparent from the record before us. Perhaps there is an explanation. The fact remains that at the time of the hearing on the motion to set aside the verdict, the government had no evidence of perjury, other than Mathis' belief that he had been convicted on perjured testimony. We are in accord with the trial court's finding that under such circumstance the jury verdict should not be disturbed. United States v. Jackson, 579 F.2d 553, 556-57 (10th Cir. 1978); United States v. Briola, 465 F.2d 1018, 1022 (10th Cir. 1972). See also, United States v. Mackin, 561 F.2d 958, 961 (D.C.Cir.1977); United States v. Brashier, 548 F.2d 1315, 1327 (9th Cir. 1976); United States v. Tourine, 428 F.2d 865, 870 (2d Cir. 1970).\n \n \n 17\n The cases relied upon by appellant Mathis, Mesarosh v. United States, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1 (1956), and United States v. Willis, 606 F.2d 391 (3d Cir. 1979), are inapposite. In Mesarosh, the Supreme Court remanded the case for a new trial because evidence surfacing subsequent to the original trial demonstrated that a key government witness in Mesarosh's trial had lied repeatedly before other governmental tribunals. Although the Court did rely upon the Solicitor General's personal belief in the witness's untruthfulness, the Court was presented also with ample documentary evidence of the witness's untruthfulness. 352 U.S. at 4-7, 77 S.Ct. at 2-4. In contrast, no evidence demonstrating that either Johnson or Gray had committed perjury has surfaced. Furthermore, the veracity of both Johnson and Gray was presented to the jury during Mathis' trial, particularly during cross-examination by defense counsel. As we have held previously, Mesarosh requires \"only that the issue of the truthfulness of the witnesses be presented fully to the jury.\" United States v. Davis, 473 F.2d 1023, 1025 (10th Cir. 1973). It is doubtful that mere hints of perjury, or even an Assistant United States Attorney's belief of perjury, warrants reversal of a conviction when, as here, the issue of the truthfulness of the alleged perjurers was presented to the jury. This would appear especially true when the United States Attorney's belief is premised upon conversations with the convicted felon.\n \n \n 18\n The Willis case is also distinguishable. While Willis' conviction was being appealed to the Third Circuit, the United States Attorney filed a motion to remand to the district court for the limited purpose of holding an evidentiary hearing on allegations of perjury and misconduct by government witnesses, several DEA agents. Such motion was granted, but no hearing was held because the government and the defense attorneys stipulated to the substance of the false testimony and general misconduct of the DEA agents. The trial court found that a clearly material government witness, one of the DEA agents, had testified falsely and that if the jury had known of the perjury, their verdict would have been different. United States v. Willis, 467 F.Supp. 1111, 1112 (W.D.Pa.1979). The Third Circuit approved such finding and, on a subsequent motion by the United States Attorney, the court remanded the case to the district court for vacation of the conviction and dismissal of the indictment. United States v. Willis, 606 F.2d 391 (3d Cir. 1979).\n \n \n 19\n In relying on Willis, Mathis fails to note that there was real evidence before the trial court and that the court therefore did not act upon the word of the government alone. In contrast to the letter forwarded to the court below outlining the FBI's failure to elicit confessions of perjury from Johnson and Gray, the Willis court was informed of the fact that if one of the DEA agents was called to testify, he would have admitted to the falsification of surveillance records. Furthermore, two DEA agents pled guilty to a charge of falsifying records.\n \n \n 20\n Finally, the suggestion that we should set aside the verdict under the broad powers provided in 28 U.S.C. § 2106 (1976) is unavailing. That statute does indeed provide that we may vacate or set aside a judgment on appellate review, but we must have a legal or equitable reason for so doing. Because no such reason here exists, we affirm.\n \n \n 21\n Judgment affirmed.\n \n ",
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| Tenth Circuit | Court of Appeals for the Tenth Circuit | F | USA, Federal |
1,358,275 | Fontron, Fromme, Schroeder | 1974-04-06 | false | steele-v-latimer | Steele | Steele v. Latimer | Shirley Steele, and Rory Steele, Renee Steele, Rolland Steele, Cari Steele, LaVance Steele, Minors, by and Through Their Mother and Next Friend, Appellants, v. Marvin E. Latimer, Appellee | Patrick F. Kelly, of Render, Kamas & Kelly, of Wichita, and Stephen J. Blaylock, also of Wichita, argued the cause, and R. Michael Jennings, of Wichita, was with ihem on the brief for the appellants., Brian E. Sullivan, of Adams, Jones, Robinson and Malone, Chartered, of Wichita, argued the cause, and Clifford L. Malone, of the same firm, was with him on the brief for the appellee., Vern Miller, attorney general, Lance W. Burr and William H. Ward, assistant attorneys general, were on the brief of amicus curiae. | null | null | null | null | null | null | null | null | null | null | 46 | Published | null | <docketnumber id="b445-3">
No. 47,141
</docketnumber><br><parties id="b445-4">
Shirley Steele, and Rory Steele, Renee Steele, Rolland Steele, Cari Steele, LaVance Steele, Minors, by and through their Mother and next friend,
<em>
Appellants,
</em>
v. Marvin E. Latimer,
<em>
Appellee.
</em>
</parties><br><citation id="b445-5">
(521 P. 2d 304)
</citation><decisiondate id="AdL">
<span citation-index="1" class="star-pagination" label="330">
*330
</span>
Opinion filed April 6, 1974.
</decisiondate><br><attorneys id="b446-6">
<em>
Patrick F. Kelly,
</em>
of Render, Kamas & Kelly, of Wichita, and
<em>
Stephen J. Blaylock,
</em>
also of Wichita, argued the cause, and R.
<em>
Michael Jennings,
</em>
of Wichita, was with ihem on the brief for the appellants.
</attorneys><br><attorneys id="b446-7">
<em>
Brian E. Sullivan,
</em>
of Adams, Jones, Robinson and Malone, Chartered, of Wichita, argued the cause, and
<em>
Clifford L. Malone,
</em>
of the same firm, was with him on the brief for the appellee.
</attorneys><br><attorneys id="b446-8">
<em>
Vern Miller,
</em>
attorney general,
<em>
Lance W. Burr
</em>
and
<em>
William H. Ward,
</em>
assistant attorneys general, were on the brief of
<em>
amicus curiae.
</em>
</attorneys> | [
"521 P.2d 304",
"214 Kan. 329"
]
| [
{
"author_str": "Fontron",
"per_curiam": false,
"type": "020lead",
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"opinion_text": "\nThe opinion of the court was delivered by\nFontron, J.:\nShirley Steele brings this action on behalf of herself and her six young children against Marvin E. Latimer, their landlord, seeking to recover rent paid, to recover damages and to enjoin violation of the Wichita Housing Code. We shall refer to the parties either as plaintiffs and defendant, or by name.\nThe trial court, hearing the case without a jury, ruled that Shirley Steele was the only proper party plaintiff; that the defendant had violated the implied covenant of quiet enjoyment in failing to repair a broken water main; and that plaintiff was entitled to $102 damages for breach of that covenant. The court rejected all other relief sought. The plaintiffs have appealed, alleging various errors.\nA question of first impression is presented so far as this court is concerned: Is a warranty of habitability to be implied in the rental of urban residential property? The trial court gave a negative answer to this question and herein lies the issue most vigorously pressed and contested in this lawsuit.\nAs to the facts: When the Steele family outgrew the two bedroom habitation it had been occupying, a search was initiated for larger quarters. The quest for a roomier residence eventually came to an end when an available three bedroom house, owned by Mr. Latimer, was found at 3138 Ethel. After Shirley had seen the house she and her family moved into their new home on the basis of a month to month oral lease at a monthly rental of $105. The date was November 1,1971.\n*331As of January 1, 1972, the defendant undertook to raise the rent $5 per month and Shirley betook herself to the Wichita Legal Aid Society, where she complained not only of the raise in rent but also of the condition of the premises which she said were inadequately heated and lacked a number of locks. Two letters from the Legal Aid Society to Latimer followed Shirley s visits to the society, as did a trip to the Steele home by a city building inspector who noted various deficiencies in the property.\nWhen no acceptable response was received from Mr. Latimer, the instant action was filed on March 24, 1972. In their petition, the plaintiffs asked for injunctive relief and prayed for monetary judgments as follows: $315 for return of rents paid; $1700 total personal damages, $500 for Shirley and $200 for each of the six children; and $1000 punitive damages. The action was premised on three legal theories: (1) breach of an implied warranty of habitability, (2) negligence in faffing to comply with the Wichita Housing Code, and (3) maintaining a nuisance.\nAlthough the trial court entered judgment in favor of the defendant, with the exception of the $102 damages resulting from the broken water line, the court nevertheless found a number of defects and faults in the house: excessive air leakage around the front door and the windows due in part to inadequate repair and in pail to the type of windows built into the structure; a counter top next to the sink in bad state of repair presenting an unsanitary condition, hazardous to health; tile on the bathroom floor needing repair and presenting an unsanitary condition; and considerable wear, tear and depreciation. In addition, the trial court found the house did not meet the standards of the Wichita Housing Code then in effect, although its generally dilapidated condition was obvious to Shirley at the inception of and throughout the tenancy.\nThe trial court also entered the following pertinent conclusions:\n“2. That under the settled law of the State of Kansas there is no implied warranty of habitability existing in the landlord-tenant relationship.\n“3. That if there was such an implied warranty of habitability that in this case plaintiff would be entitled to recover because the conditions of the house are such that it does violate the principle or theory of implied warranty of habitability.”\nAs tending to support that portion of the trial court’s judgment entered in his favor, the defendant relies on and directs our attention to the decision of this court in Bailey v. Kelly, 93 Kan. 723, *332145 Pac. 556, in which the court quotes from 2 Cooley on Torts, 3d ed., p. 1276:\n“ \"The mere letting without additional stipulations by the lessor, simply implies that he holds the title and that the lessee shall quietly enjoy the use and occupation during his tenancy; and not that the premises are or shall be in any particular condition or state of repair, or that they are suitable for the purpose for which they were let/ ” (pp. 729, 730.)\nContinuing its opinion in that case, the court said that a landlord owes no duty to a prospective tenant except not to entrap him by concealing facts which an ordinary inspection would not disclose, even though the buddings might otherwise be in a tumble-down, uninhabitable or unsafe condition for use. From a factual standpoint the Bailey case is so dissimilar from the instant action that we view it as being readily distinguishable and as having little if any precedential value under the instant circumstances.\nIt has been said that the development of the common law has been determined largely by the social needs of the society it was designed to serve, and that the capacity for growth and change is one of its most significant features. (Linkins v. Protestant Episcopal Cathedral Found., 187 F. 2d 357, 28 A. L. R. 2d 521; Lembke v. Unke, 171 N. W. 2d 837 [N. Dak.]; 15 Am. Jur. 2d, Common Law, § 2, pp. 795, 796.) The most casual student of ages past would agree that the principle of change runs deeply through human history and like a golden thread weaves new “people requirements” into the fabrics of altered social patterns.\nEven though the common law of England has provided the basics of the law in this state since territorial days (Hoffman v. Dautel, 192 Kan. 406, 414, 388 P. 2d 615), it is clear, by legislative pronouncement, that it may be modified “by constiutional and statutory law, judicial decisons, and the conditions and wants of the people.” (Emphasis supplied.) (K. S. A. 77-109.)\nThis court has never been disposed, as was announced in Wright v. Jenks, 124 Kan. 604, 609, 261 Pac. 840, “to resuscitate [the] obsolete subtlety of the common law.” To the contrary, where a common law principle has been found unsuited to the conditions and wants of the people of this commonwealth, its application has been rejected. (Isley Lumber Co. v. Kitch, 123 Kan. 441, 445, 256 Pac. 133.) We find our viewpoint adequately expressed in 15 Am. Jur. 2d, supra, p. 797:\n“The nature of the common law requires that each time a rule of law is applied, it be carefully scrutinized to make sure that the conditions and needs *333of the times has not so changed as to make further application of it the instrument of injustice. Whenever an old rule is found unsuited to present conditions or unsound, it should be set aside and a rule declared which is .in harmony with those conditions and meets the demands of justice.”\nIn recent years there has been a noticeable trend among courts in this country to recognize an implied warranty on the part of the lessor of urban residential property that the premises leased by him are suitable for human habitation and will be maintained in suitable condition throughout the duration of the tenancy. Among the growing number of authorities adhering to this view are Lemle v. Breeden, 51 Haw. 426, 462 P. 2d 470; Jack Spring, Inc. v. Little, 50 Ill. 2d 351, 280 N. E. 2d 208; Javins v. First National Realty Corporation, 428 F. 2d 1071; Foisy v. Wyman, 83 Wash. 2d 22, 515 P. 2d 160; Berzito v. Gambino, 63 N. J. 460, 308 A. 2d 17; and Hinson v. Delis, 26 Cal. App. 3d 62, 102 Cal. Rptr. 661.\nUsages, customs and patterns in housing practices have undergone dramatic change since the common law rules respecting landlord-tenant relationships were developing in feudal England. Dwelling habits fashioned under the agrarian atmosphere of those far-off times are hardly suitable for congested urban settings. Under the tenurial system a lease was primarily considered to be the conveyance or transfer of an interest in realty. The value to the tenant lay mainly in the land itself, the buildings being considered for the most part as incidental to the lease. Dwellings were ordinarily of simple construction, without today’s modem conveniences and mechanical gadgets, and could easily be kept in repair by the tenant himself. (Marini v. Ireland, 56 N. J. 130, 265 A. 2d 526; Kline v. Burns, 111 N. H. 87, 276 A. 2d 248.)\nThe feudal concept that a lease is simply the sale or conveyance of an interest in land (Javins v. First National Realty Corporation, supra; Lemle v. Breeden, supra.) has given way to the more realistic view that a lease is essentially a contract. In Dutton v. Dutton, 122 Kan. 640, 253 Pac. 553, this court has said:\n“Landlord and tenant is a phrase used to denote the familiar legal relation existing between the lessor and lessee of real estate. The relation is contractual and is constituted by a lease or agreement therefor of lands for terms of years; from year to year, for life or at will. . . .” (pp. 641, 642.)\nThe relationship of landlord and tenant being contractual in character, it follows that mutually dependent rights and obligations arise therefrom, binding alike on lessor and lessee. (Lemle v. *334Breeden, supra.) The mutuality of the contractual relationship is pointed up in Foisy v. Wyman, supra, where the Supreme Court of that state said:\n\". . . Any realistic analysis of the lessor-lessee or landlord-tenant situation leads to the conclusion that the tenants promise to pay rent is in exchange for the landlord’s promise to provide a livable dwelling.” (p.--)\nThe economic realities of today, in contrast to those which prevailed in the less complex baronial area of the middle ages, are reflected in the often quoted language of Judge J. Skelly Wright, speaking in Javins v. First National Realty Corporation, supra:\n\". . . Today’s urban tenants, the vast majority of whom live in multiple dwelling houses, are interested, not in the land, but solely in ‘a house suitable for occupation.’ Furthermore, today’s city dweller usually has a single, specialized skill unrelated to maintenance work; he is unable to make repairs like the ‘jack-of-all-trades’ farmer who was the common law’s model of the lessee. Further, unlike his agrarian predecessor who often remained on one piece of land for his entire life, urban tenants today are more mobile than ever before. A tenant’s tenure in a specific apartment will often not be sufficient to justify efforts at repairs. In addition, the increasing complexity of today’s dwellings renders them much more difficult to repair than the structures of earlier times. In a multiple dwelling repair may require access to equipment and areas in the control of the landlord. Low and middle income tenants, even if they were interested in making repairs, would be unable to obtain any financing for major repairs since they have no long-term interest in the property, (pp. 1078, 1079.)\nEarlier in. the same opinion Judge Wright pointed out:\n\". . . When American city dwellers, both rich and poor, seek ‘shelter’ today, they seek a well known package of goods and services — a package which includes not merely walls and ceilings, but also adequate heat, light and ventilation, serviceable plumbing facilities, secure windows and doors, proper sanitation, and proper maintenance.” (p. 1074.)\nIn discussing the housing problems with which todays urban populations are confronted, the Wisconsin Supreme Court in Pines v. Perssion, 14 Wis. 2d 590, 596, 111 N. W. 2d 409, 412, phrased the situation this way:\n“. . . To follow the old rule of no implied warranty of habitability in leases world, in our opinion, be inconsistent with the current legislative policy concerning housing standards. The need and social desirability of adequate housing for people in this era of rapid population increases is too important to be rebuffed by that obnoxious legal cliché, caveat emptor. Permitting landlords to rent ‘tumble-down’ houses is at least a contributing cause of such problems as urban blight, juvenile delinquency, and high property taxes for conscientious landowners.”\n*335Building codes are common today in many urban centers throughout the United States and the modern weight of authority in this country appears to be that the minimum standards embraced within a housing ordinance, building code or other municipal regulation are to be read into and will be implied by operation of law in housing contracts. (Kline v. Burns, supra; Pines v. Perssion, supra; Javins v. First National Realty Corporation, supra; Boston Housing Authority v. Hemingway, _ Mass. _, 293 N. E. 2d 831.) The rule is stated in Mease v. Fox, 200 N. W. 2d 791 (Iowa), where the court, after relating the circumstances of the case and after discussing legal authorities rejecting the doctrine of caveat emptor as applied to rental of urban properties, went on to say:\n“Under these circumstances we hold the landlord impliedly warrants at the outset of the lease that there are no latent defects in facilities and utilities vital to the use of the premises for residential purposes and that these essential features shall remain during the entire term in such condition to maintain the habitability of the dwelling. Further, the implied warranty we perceive in the lease situation is a representation there neither is nor shall be during the term a violation of applicable housing law, ordinance or regulation which shall render the premises unsafe, or unsanitary and unfit for living therein. Brown v. Southall Realty Co., 237 A. 2d 834 (D. C. App. 1968); Marini v. Ireland, 56 N. J. 130, 265 A. 2d 526 (1970).” (p. 796.)\nIn similar vein the Illinois Supreme Court spoke in Jack Spring, Inc. v. Little, supra:\n“We find the reasoning in Javins persuasive and we hold that included in the contracts, both oral and written, governing the tenancies of the defendants in the multiple unit dwellings occupied by them, is an implied warranty of habitability which is fulfilled by substantial compliance with the pertinent provisions of the Chicago building code. . . .” (p. 366.)\nAs indicated earlier in this opinion the Wichita Housing Code, duly adopted by Ordinance No. 27-902, was in full force and effect at all times material to this action. The Code is broad and compre-* hensive in its outreach; it sets basic standards to be met by city housing and requires lessors and lessees to meet the same as provided therein; it provides for inspections, notices of violations and procedures for conducting hearings and appeals; and it provides criminal penalties for violating the act. The trial court found that the house at 3138 Ethel did not meet the standards set by the Wichita Housing Code in that (1) the windows and front door were not reasonably tight; (2) that there was excess air leakage; and (3) the cabinet top and bathroom floors were unsanitary and dangerous to health.\n*336Under familiar legal principles the provisions of the city’s housing code relating to minimum housing standards were by implication read into and became a part of the rental agreement between Shirley Steele and Marvin E. Latimer. The pertinent rule of law is summarized in 17 Am. Jur. 2d, Contracts, § 257, pp. 654-656:\n“It is a general rule that contracting parties are presumed to contract in reference to the existing law; indeed, they are presumed to have in mind all the existing laws relating to the contract, or to the subject matter thereof. Thus, it is commonly said that all existing applicable or relevant and valid statutes, ordinances, regulations, and settled law of the land at the time a contract is made become a part of it and must be read into it just as if an express provision to that effect were inserted therein, except where the contract discloses a contrary intention. . .\nSee, also, Edwards v. United States, 215 F. Supp. 382 (D. C. Kansas); Rankin v. Ware, 88 Kan. 23, 127 Pac. 531; Anno. 110 A. L. R., Contract — Municipal Ordinance as Element, pp. 1048, et seq.\nWhere a breach of an implied warranty of habitability has occurred traditional remedies for breach of contract are available to the tenant, including the recovery of damages. In King v. Moorehead, 495 S. W. 2d 65 (Mo. App.) the court sets forth tire governing rule:\n“. . . Under contract principles a tenant’s obligation to pay rent is dependent upon the landlord’s performance of his obligation to provide a habitable dwelling during the tenancy. ... A more responsive set of remedies are thus made available to the tenant, the basic remedies for contract law, including damages, reformation and rescission. . . .” (pp. 75, 76.)\nOn the question of damages, see, also, Mease v. Fox, supra; Kline v. Burns, supra; Lemle v. Breeden, supra.\nThe judgment entered in this case by the trial court is affirmed insofar as the recovery of $102 for breach of implied warranty of quiet enjoyment is concerned, but the judgment is otherwise reversed, and the cause is remanded for trial on the issue of damages sustained by the plaintiffs which have proximately resulted from the defendant’s breach of implied warranty in failing to maintain the premises in compliance with the standards set by the Wichita Housing Code.\nIt is so ordered.\nSchroeder, J., dissenting.\n",
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"opinion_text": "\nFromme, J.,\nconcurring. With reluctance I join my brothers on this court in what may be called the birth of the implied warranty of habitability in Kansas. However I feel the court in its opinion *337should have provided more guidelines for the future growth of the newborn law. It should be pointed out as a corollary to Syl. ¶ 9 that not only are the usual remedies for breach of contract available to the lessee in cases of breach but also tire usual defenses may be employed by the lessor in such suits.\nIt would have been helpful, I feel, for the court in its present opinion to have discussed several troublesome areas which will arise from the grave in which the doctrine of caveat emptor was buried. These areas were mentioned by the Iowa court in Mease v. Fox, 200 N. W. 2d 791 (Iowa), where it was said:\n“. . . Important in the trial will be the question whether the deficiencies and defects alleged by defendants [lessees] were latent, and whether these and the claimed housing code violations constituted a material breach of implied warranty, rendering the home unsafe or unsanitary and consequently unfit for occupancy. If it is contended defendants waived the defects or were estopped to claim implied warranty (as indicated by trial court’s ruling), those matters should be affirmatively pled in plaintiff’s [lessor’s] reply. [Citations omitted.]” (p. 798.)\nThis court should have given immediate consideration to some guideline for the future in determining the extent of the implied warranty of habitability. What are the nature of the defects which should be considered a material breach of the warranty? In the present opinion the court holds that failure to maintain the premises in compliance with standards set by the Wichita Housing Code constitutes a breach of the implied warranty of habitability. The specific defects noted, such as air leakage, broken counter top in the kitchen and loss of tile in the bathroom, do not indicate how substantial such defects must be to constitute a material breach.\nTo constitute a breach of the implied warranty of habitability the lessee should be required to bring the defects to the attention of the lessor and give him a reasonable time to remedy them. (Berzito v. Gambino, 63 N. J. 460, 308 A. 2d 17.) The defects should be of such a nature as renders the living quarters unsafe, unsanitary or uninhabitable. Where there has been a material breach of implied warranty of habitability with respect to residential property, tenants damages should be measured by the difference between the fair rental value of the premises if they had been as warranted and the fair rental value of the premises as they were during occupancy by the tenant in the unsafe or unsanitary condition. When a tenant vacates the premises because of the landlord’s breach *338the condition of the premises should lose its relevance after the vacation for the damages should be determined on the basis of the fair rental value during tire tenant’s occupancy.\nNot every defect or inconvenience should be deemed to constitute a breach of covenant of habitability; the condition complained of should be such as truly renders the premises uninhabitable in the eyes of a reasonable person. The following factors have been considered material by other courts in determining whether there has been a material breach of the implied warranty of habitability:\n1. the nature of the deficiency or defect,\n2. its effect on safety and sanitation,\n3. the length of time for which it persisted,\n4. the age of the structure,\n5. the amount of the rent,\n6. whether tenant voluntarily, knowingly and intelligently waived the defects, or is estopped to raise the question of the breach,\n7. whether the defects or deficiencies resulted from unusual, abnormal or malicious use by the tenant, and\n8. whether the alleged defect would be such as to violate housing laws, regulations or ordinances.\n(See Mease v. Fox, supra; Kline v. Burns, 111 N. H. 87, 276 A. 2d 248; Marini v. Ireland, 56 N. J. 130, 265 A. 2d 526.)\nThe court’s opinion does not speak directly to many of these questions and I realize to do so might be considered dicta, however, some guidelines for the future should be given. Therefore, I join the opinion of the court concurring.\n",
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"opinion_text": "\n214 Kan. 329 (1974)\n521 P.2d 304\nSHIRLEY STEELE, and RORY STEELE, RENEE STEELE, ROLLAND STEELE, CARI STEELE, LAVANCE STEELE, Minors, by and through their Mother and next friend, Appellants,\nv.\nMARVIN E. LATIMER, Appellee.\nNo. 47,141\nSupreme Court of Kansas.\nOpinion filed April 6, 1974.\nPatrick F. Kelly, of Render, Kamas & Kelly, of Wichita, and Stephen J. Blaylock, also of Wichita, argued the cause, and R. Michael Jennings, of Wichita, was with them on the brief for the appellants.\nBrian E. Sullivan, of Adams, Jones, Robinson and Malone, Chartered, of Wichita, argued the cause, and Clifford L. Malone, of the same firm, was with him on the brief for the appellee.\nVern Miller, attorney general, Lance W. Burr and William H. Ward, assistant attorneys general, were on the brief of amicus curiae.\nThe opinion of the court was delivered by\nFONTRON, J.:\nShirley Steele brings this action on behalf of herself and her six young children against Marvin E. Latimer, their landlord, seeking to recover rent paid, to recover damages and to enjoin violation of the Wichita Housing Code. We shall refer to the parties either as plaintiffs and defendant, or by name.\nThe trial court, hearing the case without a jury, ruled that Shirley Steele was the only proper party plaintiff; that the defendant had violated the implied covenant of quiet enjoyment in failing to repair a broken water main; and that plaintiff was entitled to $102 damages for breach of that covenant. The court rejected all other relief sought. The plaintiffs have appealed, alleging various errors.\nA question of first impression is presented so far as this court is concerned: Is a warranty of habitability to be implied in the rental of urban residential property? The trial court gave a negative answer to this question and herein lies the issue most vigorously pressed and contested in this lawsuit.\nAs to the facts: When the Steele family outgrew the two bedroom habitation it had been occupying, a search was initiated for larger quarters. The quest for a roomier residence eventually came to an end when an available three bedroom house, owned by Mr. Latimer, was found at 3138 Ethel. After Shirley had seen the house she and her family moved into their new home on the basis of a month to month oral lease at a monthly rental of $105. The date was November 1, 1971.\n*331 As of January 1, 1972, the defendant undertook to raise the rent $5 per month and Shirley betook herself to the Wichita Legal Aid Society, where she complained not only of the raise in rent but also of the condition of the premises which she said were inadequately heated and lacked a number of locks. Two letters from the Legal Aid Society to Latimer followed Shirley's visits to the society, as did a trip to the Steele home by a city building inspector who noted various deficiencies in the property.\nWhen no acceptable response was received from Mr. Latimer, the instant action was filed on March 24, 1972. In their petition, the plaintiffs asked for injunctive relief and prayed for monetary judgments as follows: $315 for return of rents paid; $1700 total personal damages, $500 for Shirley and $200 for each of the six children; and $1000 punitive damages. The action was premised on three legal theories: (1) breach of an implied warranty of habitability, (2) negligence in failing to comply with the Wichita Housing Code, and (3) maintaining a nuisance.\nAlthough the trial court entered judgment in favor of the defendant, with the exception of the $102 damages resulting from the broken water line, the court nevertheless found a number of defects and faults in the house: excessive air leakage around the front door and the windows due in part to inadequate repair and in part to the type of windows built into the structure; a counter top next to the sink in had state of repair presenting an unsanitary condition, hazardous to health; tile on the bathroom floor needing repair and presenting an unsanitary condition; and considerable wear, tear and depreciation. In addition, the trial court found the house did not meet the standards of the Wichita Housing Code then in effect, although its generally dilapidated condition was obvious to Shirley at the inception of and throughout the tenancy.\nThe trial court also entered the following pertinent conclusions:\n\"2. That under the settled law of the State of Kansas there is no implied warranty of habitability existing in the landlord-tenant relationship.\n\"3. That if there was such an implied warranty of habitability that in this case plaintiff would be entitled to recover because the conditions of the house are such that it does violate the principle or theory of implied warranty of habitability.\"\nAs tending to support that portion of the trial court's judgment entered in his favor, the defendant relies on and directs our attention to the decision of this court in Bailey v. Kelly, 93 Kan. 723, *332 145 P. 556, in which the court quotes from 2 Cooley on Torts, 3d ed., p. 1276:\n\"`The mere letting without additional stipulations by the lessor, simply implies that he holds the title and that the lessee shall quietly enjoy the use and occupation during his tenancy; and not that the premises are or shall be in any particular condition or state of repair, or that they are suitable for the purpose for which they were let.'\" (pp. 729, 730.)\nContinuing its opinion in that case, the court said that a landlord owes no duty to a prospective tenant except not to entrap him by concealing facts which an ordinary inspection would not disclose, even though the buildings might otherwise be in a tumble-down, uninhabitable or unsafe condition for use. From a factual stand-point the Bailey case is so dissimilar from the instant action that we view it as being readily distinguishable and as having little if any precedential value under the instant circumstances.\nIt has been said that the development of the common law has been determined largely by the social needs of the society it was designed to serve, and that the capacity for growth and change is one of its most significant features. (Linkins v. Protestant Episcopal Cathedral Found., 187 F.2d 357, 28 A.L.R. 2d 521; Lembke v. Unke, 171 N.W.2d 837 [N. Dak.]; 15 Am.Jur.2d, Common Law, § 2, pp. 795, 796.) The most casual student of ages past would agree that the principle of change runs deeply through human history and like a golden thread weaves new \"people requirements\" into the fabrics of altered social patterns.\nEven though the common law of England has provided the basics of the law in this state since territorial days (Hoffman v. Dautel, 192 Kan. 406, 414, 388 P.2d 615), it is clear, by legislative pronouncement, that it may be modified \"by constitutional and statutory law, judicial decisions, and the conditions and wants of the people.\" (Emphasis supplied.) (K.S.A. 77-109.)\nThis court has never been disposed, as was announced in Wright v. Jenks, 124 Kan. 604, 609, 261 P. 840, \"to resuscitate [the] obsolete subtlety of the common law.\" To the contrary, where a common law principle has been found unsuited to the conditions and wants of the people of this commonwealth, its application has been rejected. (Isley Lumber Co. v. Kitch, 123 Kan. 441, 445, 256 P. 133.) We find our viewpoint adequately expressed in 15 Am.Jur.2d, supra, p. 797:\n\"The nature of the common law requires that each time a rule of law is applied, it be carefully scrutinized to make sure that the conditions and needs *333 of the times has not so changed as to make further application of it the instrument of injustice. Whenever an old rule is found unsuited to present conditions or unsound, it should be set aside and a rule declared which is in harmony with those conditions and meets the demands of justice.\"\nIn recent years there has been a noticeable trend among courts in this country to recognize an implied warranty on the part of the lessor of urban residential property that the premises leased by him are suitable for human habitation and will be maintained in suitable condition throughout the duration of the tenancy. Among the growing number of authorities adhering to this view are Lemle v. Breeden, 51 Haw. 426, 462, P.2d 470; Jack Spring, Inc. v. Little, 50 Ill. 2d 351, 280 N.E.2d 208; Javins v. First National Realty Corporation, 428 F.2d 1071; Foisy v. Wyman, 83 Wash.2d 22, 515 P.2d 160; Berzito v. Gambino, 63 N.J. 460, 308, A.2d 17; and Hinson v. Delis, 26 Cal. App. 3d 62, 102 Cal. Rptr. 661.\nUsages, customs and patterns in housing practices have undergone dramatic change since the common law rules respecting landlord-tenant relationships were developing in feudal England. Dwelling habits fashioned under the agrarian atmosphere of those far-off times are hardly suitable for congested urban settings. Under the tenurial system a lease was primarily considered to be the conveyance or transfer of an interest in realty. The value to the tenant lay mainly in the land itself, the buildings being considered for the most part as incidental to the lease. Dwellings were ordinarily of simple construction, without today's modern conveniences and mechanical gadgets, and could easily be kept in repair by the tenant himself. (Marini v. Ireland, 56 N.J. 130, 265 A.2d 526; Kline v. Burns, 111 N.H. 87, 276 A.2d 248.)\nThe feudal concept that a lease is simply the sale or conveyance of an interest in land (Javins v. First National Realty Corporation, supra; Lemle v. Breeden, supra.) has given way to the more realistic view that a lease is essentially a contract. In Dutton v. Dutton, 122 Kan. 640, 253 P. 553, this court has said:\n\"Landlord and tenant is a phrase used to denote the familiar legal relation existing between the lessor and lessee of real estate. The relation is contractual and is constituted by a lease or agreement therefor of lands for terms of years, from year to year, for life or at will....\" (pp. 641, 642.)\nThe relationship of landlord and tenant being contractual in character, it follows that mutually dependent rights and obligations arise therefrom, binding alike on lessor and lessee. (Lemle v. *334 Breeden, supra.) The mutuality of the contractual relationship is pointed up in Foisy v. Wyman, supra, where the Supreme Court of that state said:\n\"... Any realistic analysis of the lessor-lessee or landlord-tenant situation leads to the conclusion that the tenant's promise to pay rent is in exchange for the landlord's promise to provide a livable dwelling.\" (p. ___.)\nThe economic realities of today, in contrast to those which prevailed in the less complex baronial area of the middle ages, are reflected in the often quoted language of Judge J. Skelly Wright, speaking in Javins v. First National Realty Corporation, supra:\n\"... Today's urban tenants, the vast majority of whom live in multiple dwelling houses, are interested, not in the land, but solely in `a house suitable for occupation.' Furthermore, today's city dweller usually has a single, specialized skill unrelated to maintenance work; he is unable to make repairs like the `jack-of-all-trades' farmer who was the common law's model of the lessee. Further, unlike his agrarian predecessor who often remained on one piece of land for his entire life, urban tenants today are more mobile than ever before. A tenant's tenure in a specific apartment will often not be sufficient to justify efforts at repairs. In addition, the increasing complexity of today's dwellings renders them much more difficult to repair than the structures of earlier times. In a multiple dwelling repair may require access to equipment and areas in the control of the landlord. Low and middle income tenants, even if they were interested in making repairs, would be unable to obtain any financing for major repairs since they have no long-term interest in the property. (pp. 1078, 1079.)\nEarlier in the same opinion Judge Wright pointed out:\n\"... When American city dwellers, both rich and poor, seek `shelter' today, they seek a well known package of goods and services a package which includes not merely walls and ceilings, but also adequate heat, light and ventilation, serviceable plumbing facilities, secure windows and doors, proper sanitation, and proper maintenance.\" (p. 1074.)\nIn discussing the housing problems with which today's urban populations are confronted, the Wisconsin Supreme Court in Pines v. Perssion, 14 Wis. 2d 590, 596, 111 N.W.2d 409, 412, phrased the situation this way:\n\"... To follow the old rule of no implied warranty of habitability in leases would, in our opinion, be inconsistent with the current legislative policy concerning housing standards. The need and social desirability of adequate housing for people in this era of rapid population increases is too important to be rebuffed by that obnoxious legal cliche, caveat emptor. Permitting landlords to rent `tumble-down' houses is at least a contributing cause of such problems as urban blight, juvenile delinquency, and high property taxes for conscientious landowners.\"\n*335 Building codes are common today in many urban centers throughout the United States and the modern weight of authority in this country appears to be that the minimum standards embraced within a housing ordinance, building code or other municipal regulation are to be read into and will be implied by operation of law in housing contracts. (Kline v. Burns, supra; Pines v. Perssion, supra; Javins v. First National Realty Corporation, supra; Boston Housing Authority v. Hemingway, ___ Mass. ___, 293 N.E.2d 831.) The rule is stated in Mease v. Fox, 200 N.W.2d 791 (Iowa), where the court, after relating the circumstances of the case and after discussing legal authorities rejecting the doctrine of caveat emptor as applied to rental of urban properties, went on to say:\n\"Under these circumstances we hold the landlord impliedly warrants at the outset of the lease that there are no latent defects in facilities and utilities vital to the use of the premises for residential purposes and that these essential features shall remain during the entire term in such condition to maintain the habitability of the dwelling. Further, the implied warranty we perceive in the lease situation is a representation there neither is nor shall be during the term a violation of applicable housing law, ordinance or regulation which shall render the premises unsafe, or unsanitary and unfit for living therein. Brown v. Southall Realty Co., 237 A.2d 834 (D.C. App. 1968); Marini v. Ireland, 56 N.J. 130, 265 A.2d 526 (1970).\" (p. 796.)\nIn similar vein the Illinois Supreme Court spoke in Jack Spring, Inc. v. Little, supra:\n\"We find the reasoning in Javins persuasive and we hold that included in the contracts, both oral and written, governing the tenancies of the defendants in the multiple unit dwellings occupied by them, is an implied warranty of habitability which is fulfilled by substantial compliance with the pertinent provisions of the Chicago building code....\" (p. 366.)\nAs indicated earlier in this opinion the Wichita Housing Code, duly adopted by Ordinance No. 27-902, was in full force and effect at all times material to this action. The Code is broad and comprehensive in its outreach; it sets basic standards to be met by city housing and requires lessors and lessees to meet the same as provided therein; it provides for inspections, notices of violations and procedures for conducting hearings and appeals; and it provides criminal penalties for violating the act. The trial court found that the house at 3138 Ethel did not meet the standards set by the Wichita Housing Code in that (1) the windows and front door were not reasonably tight; (2) that there was excess air leakage; and (3) the cabinet top and bathroom floors were unsanitary and dangerous to health.\n*336 Under familiar legal principles the provisions of the city's housing code relating to minimum housing standards were by implication read into and became a part of the rental agreement between Shirley Steele and Marvin E. Latimer. The pertinent rule of law is summarized in 17 Am.Jur.2d, Contracts, § 257, pp. 654-656:\n\"It is a general rule that contracting parties are presumed to contract in reference to the existing law; indeed, they are presumed to have in mind all the existing laws relating to the contract, or to the subject matter thereof. Thus, it is commonly said that all existing applicable or relevant and valid statutes, ordinances, regulations, and settled law of the land at the time a contract is made become a part of it and must be read into it just as if an express provision to that effect were inserted therein, except where the contract discloses a contrary intention....\"\nSee, also, Edwards v. United States, 215 F. Supp. 382 (D.C. Kansas); Rankin v. Ware, 88 Kan. 23, 127 P. 531; Anno. 110 A.L.R., Contract Municipal Ordinance as Element, pp. 1048, et seq.\nWhere a breach of an implied warranty of habitability has occurred traditional remedies for breach of contract are available to the tenant, including the recovery of damages. In King v. Moorehead, 495 S.W.2d 65 (Mo. App.) the court sets forth the governing rule:\n\"... Under contract principles a tenant's obligation to pay rent is dependent upon the landlord's performance of his obligation to provide a habitable dwelling during the tenancy.... A more responsive set of remedies are thus made available to the tenant, the basic remedies for contract law, including damages, reformation and rescission....\" (pp. 75, 76.)\nOn the question of damages, see, also, Mease v. Fox, supra; Kline v. Burns, supra; Lemle v. Breeden, supra.\nThe judgment entered in this case by the trial court is affirmed insofar as the recovery of $102 for breach of implied warranty of quiet enjoyment is concerned, but the judgment is otherwise reversed, and the cause is remanded for trial on the issue of damages sustained by the plaintiffs which have proximately resulted from the defendant's breach of implied warranty in failing to maintain the premises in compliance with the standards set by the Wichita Housing Code.\nIt is so ordered.\nSCHROEDER, J., dissenting.\nFROMME, J., concurring.\nWith reluctance I join my brothers on this court in what may be called the birth of the implied warranty of habitability in Kansas. However I feel the court in its opinion *337 should have provided more guidelines for the future growth of the newborn law. It should be pointed out as a corollary to Syl. ¶ 9 that not only are the usual remedies for breach of contract available to the lessee in cases of breach but also the usual defenses may be employed by the lessor in such suits.\nIt would have been helpful, I feel, for the court in its present opinion to have discussed several troublesome areas which will arise from the grave in which the doctrine of caveat emptor was buried. These areas were mentioned by the Iowa court in Mease v. Fox, 200 N.W.2d 791 (Iowa), where it was said:\n\"... Important in the trial will be the question whether the deficiencies and defects alleged by defendants [lessees] were latent, and whether these and the claimed housing code violations constituted a material breach of implied warranty, rendering the home unsafe or unsanitary and consequently unfit for occupancy. If it is contended defendants waived the defects or were estopped to claim implied warranty (as indicated by trial court's ruling), those matters should be affirmatively pled in plaintiff's [lessor's] reply. [Citations omitted.]\" (p. 798.)\nThis court should have given immediate consideration to some guideline for the future in determining the extent of the implied warranty of habitability. What are the nature of the defects which should be considered a material breach of the warranty? In the present opinion the court holds that failure to maintain the premises in compliance with standards set by the Wichita Housing Code constitutes a breach of the implied warranty of habitability. The specific defects noted, such as air leakage, broken counter top in the kitchen and loss of tile in the bathroom, do not indicate how substantial such defects must be to constitute a material breach.\nTo constitute a breach of the implied warranty of habitability the lessee should be required to bring the defects to the attention of the lessor and give him a reasonable time to remedy them. (Berzito v. Gambino, 63 N.J. 460, 308 A.2d 17.) The defects should be of such a nature as renders the living quarters unsafe, unsanitary or uninhabitable. Where there has been a material breach of implied warranty of habitability with respect to residential property, tenant's damages should be measured by the difference between the fair rental value of the premises if they had been as warranted and the fair rental value of the premises as they were during occupancy by the tenant in the unsafe or unsanitary condition. When a tenant vacates the premises because of the landlord's breach *338 the condition of the premises should lose its relevance after the vacation for the damages should be determined on the basis of the fair rental value during the tenant's occupancy.\nNot every defect or inconvenience should be deemed to constitute a breach of covenant of habitability; the condition complained of should be such as truly renders the premises uninhabitable in the eyes of a reasonable person. The following factors have been considered material by other courts in determining whether there has been a material breach of the implied warranty of habitability:\n1. the nature of the deficiency or defect,\n2. its effect on safety and sanitation,\n3. the length of time for which it persisted,\n4. the age of the structure,\n5. the amount of the rent,\n6. whether tenant voluntarily, knowingly and intelligently waived the defects, or is estopped to raise the question of the breach,\n7. whether the defects or deficiencies resulted from unusual, abnormal or malicious use by the tenant, and\n8. whether the alleged defect would be such as to violate housing laws, regulations or ordinances.\n(See Mease v. Fox, supra; Kline v. Burns, 111 N.H. 87, 276 A.2d 248; Marini v. Ireland, 56 N.J. 130, 265 A.2d 526.)\nThe court's opinion does not speak directly to many of these questions and I realize to do so might be considered dicta, however, some guidelines for the future should be given. Therefore, I join the opinion of the court concurring.\n",
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| Supreme Court of Kansas | Supreme Court of Kansas | S | Kansas, KS |
443,013 | Ballantine, Contie, Edwards, Per Curiam | 1984-09-05 | false | joan-s-schatten-v-united-states | null | Joan S. Schatten v. United States | Joan S. SCHATTEN, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee | Joseph Gibbs (argued), Boult, Cummings, Conners & Berry, Nashville, Tenn., for plaintiff-appellant., Robert E. Rice, Trial Atty., Bruce Ellisen (argued), Tax Div., Civil Section, U.S. Dept, of Justice, Washington, D.C., Joe B. Brown, U.S. Atty., Nashville, Tenn., Glenn L. Archer, Jr. (LEAD), Asst. Atty. Gen., Michael L. Paup, Michael J. Roach, Chief, | null | null | null | null | null | null | null | null | null | null | 22 | Published | null | <parties data-order="0" data-type="parties" id="b417-8">
Joan S. SCHATTEN, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
</parties><br><docketnumber data-order="1" data-type="docketnumber" id="b417-10">
No. 83-5503.
</docketnumber><br><court data-order="2" data-type="court" id="b417-11">
United States Court of Appeals, Sixth Circuit.
</court><br><decisiondate data-order="3" data-type="decisiondate" id="b417-13">
Sept. 5, 1984.
</decisiondate><br><attorneys data-order="4" data-type="attorneys" id="b418-9">
<span citation-index="1" class="star-pagination" label="320">
*320
</span>
Joseph Gibbs (argued), Boult, Cummings, Conners & Berry, Nashville, Tenn., for plaintiff-appellant.
</attorneys><br><attorneys data-order="5" data-type="attorneys" id="b418-10">
Robert E. Rice, Trial Atty., Bruce Ellisen (argued), Tax Div., Civil Section, U.S. Dept, of Justice, Washington, D.C., Joe B. Brown, U.S. Atty., Nashville, Tenn., Glenn L. Archer, Jr. (LEAD), Asst. Atty. Gen., Michael L. Paup, Michael J. Roach, Chief,
</attorneys><br><p data-order="6" data-type="judges" id="b418-13">
Before EDWARDS and CONTIE, Circuit Judges, and BALLANTINE, District Judge.
<a class="footnote" href="#fn*" id="fn*_ref">
*
</a>
</p><div class="footnotes"><div class="footnote" data-order="7" data-type="footnote" id="fn*" label="*">
<a class="footnote" href="#fn*_ref">
*
</a>
<p id="b418-11">
The Honorable Thomas A. Ballantine, Jr., United States District Judge for the Western District of Kentucky, sitting by designation.
</p>
</div></div> | [
"746 F.2d 319"
]
| [
{
"author_str": "Per Curiam",
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"opinion_text": "746 F.2d 319\n 55 A.F.T.R.2d (RIA) 85-1417, 84-2 USTC P 9965\n Joan S. SCHATTEN, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee.\n No. 83-5503.\n United States Court of Appeals,Sixth Circuit.\n Sept. 5, 1984.\n \n Joseph Gibbs (argued), Boult, Cummings, Conners & Berry, Nashville, Tenn., for plaintiff-appellant.\n Robert E. Rice, Trial Atty., Bruce Ellisen (argued), Tax Div., Civil Section, U.S. Dept. of Justice, Washington, D.C., Joe B. Brown, U.S. Atty., Nashville, Tenn., Glenn L. Archer, Jr. (LEAD), Asst. Atty. Gen., Michael L. Paup, Michael J. Roach, Chief, Appellate Section Tax Div., Dept. of Justice, Washington, D.C., for defendant-appellee.\n Before EDWARDS and CONTIE, Circuit Judges, and BALLANTINE, District Judge.*\n PER CURIAM.\n \n \n 1\n Joan Schatten appeals from a district court decision, 563 F. Supp. 294, holding that certain payments being received by Schatten from her ex-husband pursuant to a divorce settlement agreement are taxable as ordinary income. We affirm.\n \n \n 2\n Emanuel and Joan Schatten were married in 1954. Although the couple had virtually no assets at the time of the marriage, Mr. Schatten's real estate business subsequently became successful. The marital estate was worth between three and five million dollars at the time of the divorce. Mrs. Schatten's primary contribution to the marital estate was that of wife, mother of three children and homemaker.\n \n \n 3\n The parties cross-filed for divorce. The state court made no findings on the grounds for divorce asserted by the parties because they settled the matter on April 2, 1973. Both parties were represented by counsel during the settlement negotiations. The settlement agreement approved by the state court provided that Mr. Schatten would pay his ex-wife $470,000.00 in \"support and maintenance in recognition of her need for support\" over a fifteen year period. The monthly payment was set at $2,610.00. Although Mr. Schatten's duty to pay would survive his death or his ex-wife's remarriage, the obligation would cease if Mrs. Schatten died. The settlement agreement expressly provided that the payments would be ordinary income to Mrs. Schatten and deductible by Mr. Schatten.\n \n \n 4\n The settlement agreement further provided that Mr. Schatten would pay his exwife's Blue Cross and major medical insurance premiums as part of his alimony obligations. This obligation would terminate upon Mrs. Schatten's remarriage or death. The agreement stated that the premiums paid would be ordinary income to Mrs. Schatten and deductible by Mr. Schatten.1\n \n \n 5\n A separate portion of the settlement agreement sought \"to make a just and equitable distribution of jointly held property.\" The couple was to hold their home as tenants in common, with Mrs. Schatten holding a three-fourths share. In addition, Mr. Schatten agreed to convey ten percent of the common stock of King's Lodge, Inc., a Tennessee corporation having a leasehold interest in King's Lodge in Chattanooga.\n \n \n 6\n On her 1974, 1975 and 1976 federal income tax returns, Mrs. Schatten claimed the monthly payment and insurance premium payments as ordinary income. Mrs. Schatten did not claim the payments on her 1977 and 1978 returns, however, on the ground that the payments were part of the couple's property settlement rather than part of the agreement concerning alimony. The Commissioner ruled that the payments constituted alimony taxable as ordinary income and assessed a deficiency. Mrs. Schatten then paid the tax and sued for a refund in the district court.\n \n \n 7\n The district court agreed with the Commissioner and articulated alternative reasons for its holding. Following the Third Circuit's decision in Commissioner of Internal Revenue v. Danielson, 378 F.2d 771 (3d Cir.1967), the district court held that Mrs. Schatten could challenge the tax consequences of the language of the settlement agreement only by proving that the agreement was voidable because of mistake, undue influence, fraud or duress. The court declined to find the settlement agreement void on any of those grounds. In the alternative, the court held that if Mrs. Schatten could go beyond the terms of the settlement agreement in order to show that the payments in question were intended as a part of the property settlement rather than as alimony, then the government would still prevail under the seven factor test enunciated by the Tax Court in Beard v. Commissioner of Internal Revenue, 77 T.C. 1275, 1284-85 (1981). It is from this judgment that Mrs. Schatten appeals.\n \n \n 8\n Although alimony received by a wife is taxable as ordinary income, money received pursuant to a divorce property settlement is non-taxable. See 26 U.S.C. Sec. 71(a); 26 C.F.R. Sec. 1.71-1(b)(1) and (4). Conversely, periodic alimony payments by a husband are deductible whereas property settlement payments are non-deductible. See 26 U.S.C. Secs. 71(c) and 215. In the present case, it is to Mrs. Schatten's advantage to have the money she is receiving characterized as being part of the property settlement rather than as alimony.\n \n \n 9\n This court repeatedly has held that whether a payment is made to satisfy property rights of the wife or support duties of the husband is primarily a question of intent that will not be disturbed unless clearly erroneous. See Crouser v. Commissioner of Internal Revenue, 668 F.2d 239, 242 (6th Cir.1981); Lambros v. Commissioner of Internal Revenue, 459 F.2d 69, 72 (6th Cir.1972); Porter v. Commissioner of Internal Revenue, 388 F.2d 670, 671 (6th Cir.1968). What is less clear is whether a party to a divorce settlement agreement may go beyond the terms of that agreement in order to show that the intent of the parties was different than the plain language of the agreement suggests.\n \n \n 10\n The settlement agreement at issue here plainly and unambiguously provides that both the monthly payments and the insurance premium payments are alimony taxable as ordinary income to Mrs. Schatten and are deductible by Mr. Schatten. For three reasons, we agree with the Third and Fifth Circuits that a party may not challenge the tax consequences of a settlement agreement absent \"proof which in an action between the parties to the agreement would be admissible to alter the construction or to show its unenforceability because of mistake, undue influence, fraud or duress.\" Danielson, 378 F.2d at 775. See also Spector v. Commissioner of Internal Revenue, 641 F.2d 376, 385-86 (5th Cir.), cert. denied, 454 U.S. 868, 102 S. Ct. 334, 70 L. Ed. 2d 171 (1981) (adopting the Danielson test).\n \n \n 11\n First, allowing a party collaterally to attack a divorce settlement agreement years after it has been entered into would nullify the predictability of tax consequences that parties in divorce situations are seeking to achieve. Id. A successful collateral attack upon the settlement agreement might, for instance, spur the Commissioner to initiate proceedings against Mr. Schatten in an attempt to invalidate the Sec. 215 deductions that the letter has been taking since 1974. If parties in Mr. Schatten's position cannot depend upon settlement agreements but instead learn that they face potentially dramatic increases in their federal income tax liabilities depending upon whether ex-spouses are successful in collaterally attacking these agreements, then such agreements will not be entered into.\n \n \n 12\n Second, the tax consequences of structuring a divorce settlement agreement in a particular way obviously affect the terms of the agreement. If Mrs. Schatten is in effect permitted to alter the tax consequences that she bargained for, then she will have succeeded in unilaterally reforming the agreement to her benefit. Id. Third, the approach advocated by Mrs. Schatten and adopted by the Tax Court could well require the Commissioner to litigate the factual circumstances underlying countless divorce settlement agreements. Danielson, 378 F.2d at 775. Moreover, if it were held in some cases that a spouse, contrary to the terms of a settlement agreement, was receiving money as part of a property settlement rather than as alimony, then additional litigation might ensue between the Commissioner and the other spouse who had been taking the deductions. Although recognizing that the Tax Court has rejected the Danielson rule, see, e.g., Weiner v. Commissioner of Internal Revenue, 61 T.C. 155, 159-60 (1973), we conclude that the Danielson approach is sounder.\n \n \n 13\n We also are unpersuaded by Mrs. Schatten's attempt to distinguish Danielson and Spector. She argues that the latter two cases involved arms length business transactions whereas the parties in the midst of a divorce proceeding often are emotionally distraught and are incapable of dispassionate analysis. The flaw in this argument, however, is that both Mr. and Mrs. Schatten were represented by counsel. Indeed, the plain language of the settlement agreement indicates that the tax consequences of the arrangement were thoroughly considered. Where parties to a divorce settlement agreement are represented by counsel, a party may collaterally attack the plain language of the agreement in order to obtain a tax advantage only by showing mistake, undue influence, fraud or duress.\n \n \n 14\n Mrs. Schatten next argues that the settlement agreement was indeed the product of mistake, undue influence, fraud or duress. She contends that her lawyer was recommended to her by her husband, that she was physically ill and seeing a psychiatrist at the time of the divorce and that her husband had threatened the children's futures. Having reviewed the record submitted by the parties, however, we conclude that the district court did not err in rejecting this argument.\n \n \n 15\n We further agree with the district court that the Commissioner would prevail even if the Tax Court's approach were applied. In essence, the Tax Court examines the factual situation underlying a settlement agreement to determine whether payments are part of a property settlement or are in the nature of alimony. The Tax Court has identified seven factors useful in undertaking this analysis:\n \n \n 16\n 1. The intent of the parties;\n \n \n 17\n 2. Whether valuable property rights were surrendered in exchange for the payments;3. Whether the payments are subject to termination upon death or remarriage;\n \n \n 18\n 4. Whether the payments are secured;\n \n \n 19\n 5. Whether the payments equal approximately one-half of the property accumulated by the parties during marriage;\n \n \n 20\n 6. Whether the need of the recipient was a factor in determining the amounts payable; and\n \n \n 21\n 7. Whether there was a separate provision for support and/or division of property in the remainder of the decree or agreement.\n \n \n 22\n Beard, 77 T.C. 1284-85.\n \n \n 23\n Mrs. Schatten emphasizes the second factor. She argues that under Tennessee's equitable distribution method of dividing marital estates, see Jones v. Jones, 597 S.W.2d 886 (Tenn.1979); Langford v. Langford, 421 S.W.2d 632 (Tenn.1967), she could have received one-half of the marital estate as a property settlement before alimony was even considered.2 Obtaining a three-fourths interest in the home and ten percent of the common stock in King's Lodge, Inc. did not even approach a fifty percent share of the marital property. Thus, she contends, the payments being made by Mr. Schatten must be part of the property settlement and are not alimony.\n \n \n 24\n The short answer to this argument is that no court has independently adjudicated the percentage of the marital estate to which Mrs. Schatten was entitled at the time of the divorce. Moreover, no particular or minimum percentage of the marital estate must be awarded to a spouse under the equitable distribution rule. Under these circumstances, this court cannot say that some or all of the payments being made by Mr. Schatten are part of the property settlement.\n \n \n 25\n As noted by the district court, most of the other Beard factors favor the Commissioner's position. The language of the settlement agreement denominating the payments as alimony is the clearest indication of the parties' intent. The payments in the present case were not secured, tending to show that they were in the nature of alimony. Moreover, the settlement agreement clearly indicated that need was a factor in determining the amount payable. Finally, the agreement contained separate provisions governing support and the property settlement.3\n \n \n 26\n The judgment of the district court is AFFIRMED.\n \n \n \n *\n The Honorable Thomas A. Ballantine, Jr., United States District Judge for the Western District of Kentucky, sitting by designation\n \n \n 1\n Mr. Schatten is not a party to this action. The record nevertheless indicates that he has taken the deductions provided for in the settlement agreement\n \n \n 2\n A recent Tennessee case held that a wife performing the duties of mother and homemaker can be entitled to one-half of the marital estate before the issue of alimony is considered. See Hensley v. Hensley, 631 S.W.2d 131 (Tenn.App.1981)\n \n \n 3\n The third Beard factor is somewhat ambiguous. Mr. Schatten's obligation to make the monthly payments was to survive Mrs. Schatten's remarriage, a situation indicating that the payments were part of a property settlement. Mr. Schatten's duty was to cease upon Mrs. Schatten's death, however, a situation indicating that the payments were in the nature of alimony. It should be noted, however, that no such ambiguity underlies the promise to pay the medical insurance premiums. Since this obligation was to cease upon either Mrs. Schatten's remarriage or death, these payments were in the nature of alimony\n \n \n ",
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| Sixth Circuit | Court of Appeals for the Sixth Circuit | F | USA, Federal |
2,612,760 | Doran | 1938-07-22 | false | sala-v-security-title-insurance-guarantee-co | Sala | Sala v. Security Title Insurance & Guarantee Co. | A. G. SALA Et Al., Respondents, v. SECURITY TITLE INSURANCE AND GUARANTEE COMPANY (A Corporation), Appellant | George H. Woodruff, Chapman & Chapman and Ward Chapman for Appellant., Harry C. Mabry and Laurence B. Martin for Respondents. | null | null | null | null | null | null | null | null | null | null | 5 | Published | null | <docketnumber id="b731-7">
[Civ. No. 11427.
</docketnumber><court id="Ase">
Second Appellate District, Division One.
</court><decisiondate id="Am7d">
July 22, 1938.]
</decisiondate><br><parties id="b731-9">
A. G. SALA et al., Respondents, v. SECURITY TITLE INSURANCE AND GUARANTEE COMPANY (a Corporation), Appellant.
</parties><br><attorneys id="b733-7">
<span citation-index="1" class="star-pagination" label="695">
*695
</span>
George H. Woodruff, Chapman & Chapman and Ward Chapman for Appellant.
</attorneys><br><attorneys id="b733-8">
Harry C. Mabry and Laurence B. Martin for Respondents.
</attorneys> | [
"27 Cal. App. 2d 693"
]
| [
{
"author_str": "Doran",
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"opinion_text": "\n27 Cal. App. 2d 693 (1938)\nA. G. SALA et al., Respondents,\nv.\nSECURITY TITLE INSURANCE AND GUARANTEE COMPANY (a Corporation), Appellant.\nCiv. No. 11427. \nCalifornia Court of Appeals. Second Appellate District, Division One.-- \nJuly 22, 1938.\n George H. Woodruff, Chapman & Chapman and Ward Chapman for Appellant.\n Harry C. Mabry and Laurence B. Martin for Respondents.\n DORAN, J.\n This is an appeal by defendant from the judgment and from the order denying defendant's motion for judgment notwithstanding the verdict, as well as from the order denying a motion for a new trial, in an action on a *696 policy of title insurance. The facts will appear in the opinion.\n A. G. Sala and Harry M. Seigler, respondents herein, purchased certain land consisting of acreage in the vicinity of Clearwater, Los Angeles County, California, in February of 1928. The property had been lost through foreclosure, by the former owner, one W. L. Bessolo, and respondents acquired the property by sheriff's deed after having purchased Bessolo's equity of redemption. The purchase price was $12,000, which was obtained by Sala and Seigler from the Bank of Italy National Trust and Savings Association on a loan secured by a trust deed on the property so purchased. Incidental to the transaction a policy of title insurance was purchased from the Security Title Insurance and Guarantee Company (hereinafter referred to as \"title company\"), appellant herein, insuring the title to said property in the sum of $20,000. Thereafter, to wit, on May 14, 1929, one-half of the property was sold by Sala and Seigler, subject to the trust deed above mentioned, to the Collins Concrete Pipe Company of California for $15,000. This transaction was represented by a down payment and a contract of sale providing for the balance due to be paid in monthly installments of $300. In August of 1930, the Collins Concrete Pipe Company defaulted, repudiated the contract and discontinued further payments thereunder, after having paid to Sala and Seigler approximately $4,500 on account of the transaction. About the same time plaintiffs and respondents, Sala and Seigler, discontinued interest payments to the Bank of Italy on account of the trust deed note, and after repeated demands by the bank the trust deed was foreclosed. The property was purchased by the bank at the foreclosure sale in March, 1932, for the total amount of the accrued debt in the sum of $14,000. Two years and five months later, to wit, on August 31, 1934, Sala and Seigler filed the action herein against the title company on the above-mentioned policy of title insurance.\n In attempting to fabricate and complete a cause of action against the title company, respondents Sala and Seigler rely upon the following additional facts. For some time prior to July 19, 1923, the land involved herein was owned by Frank Zamboni and Joe H. Masero, who sold the same to Bessolo, who in turn sold it to Sala and Seigler. On July 19, 1923, *697 an action (hereinafter referred to as the \"Zamboni action\"), was commenced by Zamboni and Masero against Bessolo, wherein it was sought to rescind the transfer to Bessolo on the grounds of a total failure of consideration. In connection with this action a lis pendens was recorded. When the cause came on for trial a nonsuit was granted which was followed by the entry of the judgment on November 10, 1926. An appeal from the judgment resulted in a reversal on December 3, 1927. It should be noted at this point that in reversing the judgment the court declared that although it is the law that rescission of a deed of real estate cannot be had on account of the subsequent failure of the grantee to comply with his agreement, nevertheless the trial court should have directed an amendment and then proceeded to award plaintiffs the relief to which the evidence showed them to be entitled. (See Masero et al. v. Bessolo, 87 Cal. App. 262 [262 P. 61].) The remittitur which was filed February 3, 1928, was in part as follows: \"and the trial court is hereby directed to allow plaintiffs to amend their complaint, if so advised, so as to present all the issues which may be properly tendered and tried in this case, to the intent that the plaintiffs may be awarded such relief as may be consonant with equity and justice\". It should also be noted at this point that the negotiations for the purchase of the land by Sala and Seigler, from Bessolo, commenced in February, 1928. In this connection it appears that the land in question had been sold to satisfy a judgment against Bessolo and that the period of redemption was about to expire. Sala and Seigler entered into an agreement with Bessolo, under date of February 25, 1928, which provided that whereas the property was subject to a sale made to the First National Bank of Compton on February 28, 1927, pursuant to an execution against Bessolo, that Bessolos were not able to redeem and were therefore willing that Sala and Seigler should acquire the title on certain conditions therein stated.\n On May 15, 1928, a motion for leave to amend the complaint was filed in the Zamboni action, to which was attached a copy of the proposed second amended complaint; the proposed amended complaint alleged, for the first time in said litigation, a purported cause of action for rescission based on fraud. Two days later, to wit, on May 17, 1928, the policy of title insurance, upon which the action herein is based, was *698 issued by appellant under the circumstances hereinbefore mentioned. The pertinent parts of the insurance policy are as follows:\n \"The Company by this policy of title insurance ... does hereby insure A. G. Sala and Harry M. Seigler ... (as to an interest in fee simple), ... and Bank of Italy National Trust and Savings Association ... (as beneficiary under Exception No. 6 herein), ... against loss or damage not exceeding in all the sum of Twenty Thousand Dollars, which the said Insured shall sustain by reason of any incorrect statement in this policy concerning the title to the real property hereinafter described, ... which said statement of title and conditions and stipulations are hereby made a part of this policy. ...\"\n \"Subject only to the following:\"\n EXCEPTIONS AND ENCUMBRANCES\n \"Taxes for the fiscal year 1928-1929.\"\n \"A Deed of Trust, with power of sale, dated May 11, 1928, to National Bankitaly Company, a corporation, trustee, executed by A. G. Sala and Paula Sala, his wife, and Harry M. Seigler and Josephine Seigler, his wife, to secure the payment of Twelve Thousand Dollars ($12,000.00), with interest thereon, according to the terms of their promissory note or notes ...\"\n \"II. Liability of the Company: Except as otherwise shown by the statement of title contained herein, and subject to the terms hereof, the Company hereby insures a marketable title to the estate or interest of the Insured, ... The Company may and will, at its own cost and expense, defend the Insured in all actions or proceedings founded on a record claim of title or encumbrance prior in date and time to this policy and hereby insured against. The Company will not be liable to anyone by reason of defects, liens or encumbrances by such person created or suffered, or created subsequent to the date hereof, or resulting in no pecuniary loss to the Insured; nor for any sum in costs, expenses and loss in excess of the amount of this policy ...\"\n \"IV. Notice--Right of Action: In case any action or proceeding is begun as mentioned in Paragraph II, and the *699 Insured shall be made a party thereto, or in case actual knowledge shall come to the Insured of such adverse claim of title or interest, the Insured shall at once notify the Company thereof in writing and secure to it, in the name of the Insured, the right to pay, satisfy, compromise, or, at the option of the Company, resist and defend such adverse claim to final determination. If such notice shall not be given to the Company within thirty days after actual notice to the Insured of the pendency of such action then this policy shall be void, but only as to the Insured receiving such notice and failing to notify the Company within said time, otherwise in full force. Right of action against the Company shall accrue under this policy (1) when and if, after receiving such notice, it shall fail within a reasonable time, in the name of the Insured, to institute and faithfully prosecute proper action to remove, or otherwise pay, satisfy, compromise or defend to final determination, such adverse claim of title or interest, and (2) when there has been a final determination by a court of competent jurisdiction adverse to the title as insured.\"\n \"VI. As to Payment: The Company reserves the option to settle any claim insured against by this policy, or to pay this policy in full; and the payment to the full amount of this policy shall terminate all liability of the Company hereunder. ...\"\n Before the second trial of the Zamboni action, appellant herein, the title company, became associated with the defendant Bessolo's attorneys, and participated, as such, in the second trial. The above mentioned second amended complaint, based on fraud, was permitted to be filed over the defendant Bessolo's objection and after demurrer thereto. At the conclusion of the trial the judgment was adverse to Bessolo who thereafter perfected an appeal, but before the determination thereof, through the efforts of the title company, the action was settled. A judgment was entered in favor of Bessolo which effectively cleared the title to the property, which, it should be remembered, is the same property Sala and Seigler had purchased.\n In substance, it is contended by respondents Sala and Seigler in connection with the within appeal, and alleged in the complaint as well, that the insurance policy guaranteed *700 and insured a marketable title; that it made no mention of the lis pendens which was a defect in the title; that it did not contain a true and correct statement concerning the title to said property; that the title company knew of the lis pendens at the time the policy was issued but that the same was ignored; that if the title to the property had not been misrepresented in the policy of insurance respondents would not have purchased it or secured the loan of $12,000. It is further alleged in the complaint and contended by respondents that notwithstanding plaintiffs' persistent demands that some action be taken by the title company as required by the terms of the policy in plaintiffs' behalf to protect the title, nothing was done for a long period of time, as a result of which delay, and on account of the defective title, the Collins Concrete Pipe Company defaulted and plaintiffs herein, being unable to pay the purchase price, lost the property. It is also alleged and contended that the title company acted in bad faith and was in collusion with the Bank of Italy, all of which bad faith and unreasonable delay, it is alleged, was for the purpose of avoiding liability to plaintiffs.\n The theory of the trial court may be gathered from the remarks of the judge who presided at the trial, as follows: \"It seems to me we are getting pretty far from what is really rather a simple issue; first, whether there was a policy of insurance issued; that seems to be admitted by everyone; second, whether there was a defect in the title; third, whether that defect rendered the title bad or unmarketable, and fourth, what, if anything, was the difference in value between the property if the title had been good as it was assured to be, and what it was with any defect, if any existed, assuming that the value was there. That is all there is to this case, as I see it.\" And again: \"... I think, in this type of case, the measure of damages is the difference between the value of the property, if it had a good, marketable title, which the company assured that it did have, and the value of the property if the title was not marketable, and if that non- marketability was by reason of some defect, which was a matter of record, which the company failed to show in its certificate of title.\" And, in a later observation: \"It seems to me, the more I think of it, the more I am convinced it is correct that the only possible measure of damages for the *701 breach of an obligation of this kind, is the difference in value between the thing as represented, and the thing as it was.\"\n [1] Before analyzing the respondents' contentions and the theory of the trial court, above noted, the facts may be summed up as follows: During the second trial of the Zamboni action, as indeed was the case at all times, respondents Sala and Seigler were in this position: There being a lis pendens on record, the outcome of the Zamboni trial would affect the title of the property which was the subject of the lawsuit, although the record title thereof was in the name of respondents Sala and Seigler, who were not parties to that action. At the conclusion of the Zamboni trial when the judgment was adverse to the interests of respondents Sala and Seigler, it was evident that respondents would lose the property by virtue of the judgment, unless such judgment could be set aside or reversed, or unless a settlement could be reached, the effect of which would clear the title. After the adverse judgment in said action an appeal was taken and perfected and appellant's opening brief was filed. Pending the appeal in that action, respondents herein lost the property as a result of the foreclosure of the trust deed, which foreclosure vested the title to the property in the Bank of Italy. At the same time the foreclosure relieved respondents Sala and Seigler of the total amount of the debt secured by the trust deed. Thereupon, according to its terms, the benefits of the policy inured to the Bank of Italy, the new title holder of the property. Manifestly, if the judgment in the Zamboni case could not be reversed on appeal and a different judgment obtained that would clear the title, or the same result achieved by settlement, then, and in that event, a cause of action would follow in favor of the Bank of Italy, and against the title company. Under such circumstances would respondents Sala and Seigler also have a cause of action against the title company by virtue of the same policy of insurance? And if so, for what?\n Returning now to the contentions of respondents, from a review of the record and in the light of the foregoing summary, each and all of such contentions are without merit.\n [2] In connection with respondents' claim that the insurance policy did not contain a true and correct statement concerning the title, exaggerated and unwarranted importance is attributed to the failure of the title company to mention the lis pendens in the insurance policy, when, in *702 truth, the failure to so mention the lis pendens is of no consequence. The insurance policy did not purport to recite, nor did the title company undertake to sell, to respondents a list of possible encumbrances in connection with which opinions might differ as to the legal effect thereof. Respondents were in no position at the time the insurance was purchased to dictate to the title company the form and substance which its obligations should assume, nor are they in a position now to complain because the insurance policy did not contain something which the insurance company in the conduct of its business and in its best judgment saw fit to omit. Although it is unnecessary to decide the question in connection with the appeal herein, there is abundant authority to support appellant's contention that the record of the lis pendens did not at any time constitute a defect of the title to the property. [3] It is conceded that the title company intentionally ignored the lis pendens because the action upon which it was based, as heretofore noted, was an action to rescind a deed on the grounds of failure of consideration. It is elementary that such an action does not lie. Moreover, it is evident, from a review of the record, that the title company had every reason to assume that an amendment to the complaint in the Zamboni action which would change the character of said action would not be permitted, and that if it were permitted such amendment would ipso facto invalidate the lis pendens, for it has been held, as the Supreme Court has hitherto observed, that \"An amendment to the bill or complaint, after a purchase or the acquisition of other rights pendente lite, which does not alter the cause of action, does not affect the lis pendens, since it relates back to the filing of the original bill. On the other hand, if the cause of action is changed by the amendment, or a new cause added, the lis pendens does not relate back but dates from the filing of the amended complaint.\" (Dobbins v. Economic Gas Co., 182 Cal. 616, 628 [189 P. 1073].) Manifestly, the amendment in the Zamboni case which set up a cause of action based on fraud changed the character of the action from an action ex contractu to an action ex delicto.\n The title company had the right to include or omit a reference to the lis pendens in the insurance policy as it chose, and by no process of logical reasoning, in the light of the *703 record, can any causal connection be established between such omission and the loss of the hereinbefore described property by respondents.\n [4] With regard to respondents' contention above mentioned, namely, that if the title to the property had not been misrepresented in the policy of insurance respondents would not have purchased the property or secured the loan of $12,000, it is at once apparent that such argument is unsound, and from the standpoint of logic merely consists of one of a series of \"ifs\", which can be multiplied on the one hand by appellant as readily as they can be increased on the other by respondents, and so on ad infinitum. Moreover, appellant owed no duty to include any reference to the lis pendens in the contract of insurance, and the failure so to do in no sense was a misrepresentation either directly or in effect.\n [5] With regard to respondents' contentions that the Collins Concrete Pipe Company defaulted on account of the defective title, and that the title company acted in bad faith and was in collusion with the Bank of Italy, it is sufficient to note that the record is destitute of any legal evidence in support of such contentions, nor is there any evidence in the record in support of respondents' contention that the title company was guilty of unreasonable delay in clearing the title. To the contrary, the record reveals that two of the parties to the Zamboni action died, which of necessity required the appointment of administrators and substitutions in order to carry on the litigation. And, also, the chief counsel for one of the parties was in a sanitarium for six months, which, together with other facts and circumstances in connection with the progress of the litigation, accounts for the delay in every respect, and leaves the title company free from warranted criticism in this regard.\n The theory of the trial judge, as above outlined, apparently results from a misconception of the legal effect of the insurance policy in question. Its legal effect may be determined by familiar rules, for example, as pointed out by respondents, \"Obviously, the parties may contract in any particular policy, as they see fit\", and further quoting from respondents' brief, \"A policy of title insurance is a contract of indemnity ... To determine the rights and liabilities of the parties to the contract it is necessary to determine *704 the extent of their respective promises and whether those agreements have been performed. In deciding what the parties have promised, the courts are at liberty to, and do, exercise certain well settled principles of interpretation. Policies of title insurance are subject to the same rules of construction as all other insurance policies.\"\n [6] The theory of the trial court, and the contention of respondents as well, fails to take into account the contract in its entirety, and by thus disregarding the rights of the title company under the terms of the contract, assumes that the title company breached the contract as of the day the insurance policy was issued and that therefore and on said date was liable in damages for the difference between the value of the land with a marketable title and its value with an unmarketable title. Such a theory is obviously unsound for the reason that it forecloses the title company, if it elects so to do, from exercising its right, according to the terms of the policy, to clear the title. Manifestly, the insurance policy must be construed in its entirety, and it was as much the right of the insurance company to perform the contract according to its terms as it was the right of the assured to expect payment in the event of a failure upon the part of the title company so to do.\n [7] Respondents complain bitterly because the title company did not commence \"in the name of the Insured\" an action to clear the title, which omission, it is argued, constituted a breach of the insurance contract on the part of the title company, and from which breach the alleged cause of action herein in part accrued. The complaint is trivial; it is based on the clause in paragraph IV of the insurance contract wherein, as above noted, it is provided that a right of action against the company shall accrue when the company shall fail within a reasonable time in the name of the Insured to institute and faithfully prosecute proper action to remove the adverse claim. But the same clause further provides, \"or otherwise pay, satisfy, compromise or defend to final determination, such adverse claim\", and this is precisely what the title company did, in fact, do. Assuming that a cause of action existed against the title company, the clause in question merely determined when such action could be commenced. The fact remains that the title company performed *705 the contract of insurance fully and expeditiously and cleared the title to the land in question, and there is no evidence in the record to establish a causal connection between any act or omission on the part of the title company and the loss of the property by respondents. The respondents are in no position under the circumstances herein to complain about the course pursued and the methods employed to bring about the result.\n [8] With regard to the plea by defendant of the bar of the statute of limitations, it is appropriately recited in appellant's brief, that \"if it is an action in tort growing out of defendant's negligence, the right of recovery was barred, at least after two years from the time their property was lost through foreclosure, and no claim of lack of knowledge of the existence of the cause of action would suspend the running of the statute. On the other hand, if the cause of action was based on fraud, the complaint was deficient in several respects, but especially in failing to set forth facts excusing their alleged failure to discover the fraud within a period of three years prior to the commencement of the action.\" It is sufficient to note in this connection that, in the light of the record, upon whatever theory plaintiffs seek to base a cause of action against the title company, such attempt is effectively barred by the statute of limitations.\n The evidence reveals that Sala and Seigler had known each other for many years and had been in many real estate transactions together. The only logical, reasonable deduction from the evidence indicates that respondents purchased the land in question with borrowed money, and being unable to pay the loan when due, lost the property. They may have profited more if they had been able to retain the land, but nevertheless neither the loss of the land nor the loss of contemplated profits can be attributed to any actionable act or omission of the title company or to the failure of the title company to perform its obligations under and according to the terms of the insurance contract.\n The motion for a judgment notwithstanding the verdict should have been granted.\n For the reasons heretofore given the judgment is reversed with directions to enter judgment for the defendant. [9] There being no appeal authorized from the order denying *706 a motion for a new trial, the attempted appeal therefrom is dismissed.\n York, P. J., and White, J., concurred.\n",
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| California Court of Appeal | California Court of Appeal | SA | California, CA |
2,251,638 | McGLOON | 1972-04-06 | false | liberty-mutual-insurance-v-duray | Duray | Liberty Mutual Insurance v. Duray | Liberty Mutual Insurance Company, Plaintiff-Appellant, v. Fred A. Duray, Defendant-Appellee | Jack L. Watson, of Schaffenegger & Watson, of Chicago, for appellant., George F. Archer and Lawrence P. Hickey, both of Chicago, for appellee. | null | null | null | null | null | null | null | null | null | null | 8 | Published | null | <parties id="b209-5" pgmap="209">
Liberty Mutual Insurance Company, Plaintiff-Appellant, v. Fred A. Duray, Defendant-Appellee.
</parties><br><docketnumber id="b209-6" pgmap="209">
(No. 54632;
</docketnumber><br><court id="b209-7" pgmap="209">
First District
</court><decisiondate id="AdH" pgmap="209">
April 6, 1972.
</decisiondate><br><attorneys id="b210-2" pgmap="210">
Jack L. Watson, of Schaffenegger & Watson, of Chicago, for appellant.
</attorneys><br><attorneys id="b210-3" pgmap="210">
George F. Archer and Lawrence P. Hickey, both of Chicago, for appellee.
</attorneys> | [
"283 N.E.2d 58",
"5 Ill. App. 3d 187"
]
| [
{
"author_str": "McGLOON",
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"opinion_text": "\n5 Ill. App. 3d 187 (1972)\n283 N.E.2d 58\nLIBERTY MUTUAL INSURANCE COMPANY, Plaintiff-Appellant,\nv.\nFRED A. DURAY, Defendant-Appellee.\nNo. 54632.\nIllinois Appellate Court First District.\nApril 6, 1972.\n*188 Jack L. Watson, of Schaffenegger & Watson, of Chicago, for appellant.\nGeorge F. Archer and Lawrence P. Hickey, both of Chicago, for appellee.\nJudgment affirmed.\nMr. PRESIDING JUSTICE McGLOON delivered the opinion of the court:\nThis is an appeal from an order of the Circuit Court granting defendant Duray's motion to dismiss plaintiff Liberty Mutual's complaint for declaratory judgment and a subsequent order refusing to vacate the order of dismissal. The trial court ruled favorably upon defendant's motion on the basis that a previous order of the Circuit Court, denying plaintiff's petition to stay arbitration, was res judicata of the matters raised in the complaint for declaratory judgment. Plaintiff argues on appeal that the denial of its petition to stay arbitration was not a bar to its suit for declaratory judgment. Plaintiff argues on appeal that the denial of its petition to stay arbitration was not a bar to its suit for declaratory judgment, and furthermore, that its complaint states a good cause of action.\nWe affirm.\nDuray was injured by a racing car driven by one Mark Perrin who was racing at the Rockford Speedway, at which Duray was a spectator. Perrin was uninsured, and consequently Duray filed a \"Demand for Arbitration\" pursuant to the uninsured motorist provision of the insurance policy issued by Liberty Mutual Insurance Company, under which he was an insured. Liberty Mutual thereafter filed an answer and an objection to hearing locale, both of which were denied by the American Arbitration Association. Liberty Mutual then filed in the Circuit Court a petition to stay arbitration which reads in relevant part as follows:\n\"4. That Petitioner denies that the alleged uninsured motorist was operating a `highway vehicle' as defined in the aforementioned policy at the time of the occurrence complained of.\n5. That the dispute is one of policy construction.\n6. That coverage questions are not arbitrable under the arbitration clause of said policy.\n7. That only the issues of liability and damages are the subject of arbitration.\nWHEREFORE, your Petitioner LIBERTY MUTUAL INSURANCE COMPANY prays the Court for an Order staying the arbitration proceedings now pending before the American Arbitration Association under their No. 51 20 0206 67.\"\nDuray filed a motion to dismiss this petition, and Liberty Mutual *189 answered the motion to dismiss. On August 1, 1967, the following order was entered by the Circuit Court:\n\"The matters having been heard before this court, the court having jurisdiction thereof and being fully advised in the premises.\nIT IS HEREBY ORDERED that the Petition to Stay Arbitration filed herein by Liberty Mutual Insurance Co. is hereby denied.\"\nNo appeal was ever taken from this order.\nOn December 14, 1967, Liberty Mutual filed its complaint for declaratory judgment in the Circuit Court requesting that the court consider and adjudicate the question of coverage. This action was dismissed on the ground that the order of August 1 was res judicata of the issues raised. Liberty Mutual then filed a motion to vacate this order of dismissal which was denied.\nLiberty Mutual begins its argument by urging that questions of coverage are matters of law and not properly subject to arbitration. It alleges that it only agrees to arbitrate the issues of liability and damages when its insured is injured by an uninsured motorist driving a \"highway vehicle.\" Liberty Mutual further alleges that there is an issue of fact as to whether the vehicle driven by Perrin was a \"highway vehicle\" under the terms of the policy, and that such an issue is properly decided by a court of law since it goes to the heart of whether or not there is an argument to arbitrate. The case of Flood v. Country Mutual Insurance Co. (1968), 41 Ill. 2d 91, 242 N.E.2d 149 is cited as authority for this argument.\nThe Flood case stands for the proposition that matters of coverage are not subject to arbitration. However, in Flood the court was considering an appeal from the denial of Country Mutual's petition for stay of arbitration. In the case at bar, we are not being asked to rule upon the correctness of the August 1 order dismissing Liberty Mutual's petition to stay arbitration, but rather we are requested to rule on the validity of the separate order dismissing Liberty Mutual's later complaint for declaratory judgment on the basis that the August 1 order was res judicata of the issues raised in the complaint.\nThe petition to stay arbitration was brought under Section 2(b) of the Uniform Arbitration Act (Ill. Rev. Stat. 1969, ch. 10, par. 102(b)) which states:\n\"(b) On application, the court may stay an arbitration proceeding commenced or threatened on a showing that there is no agreement to arbitrate. That issue, when in substantial and bona fide dispute, shall be forthwith and summarily tried and the stay ordered if found for the moving party. If found for the opposing party, the court shall order the parties to proceed to arbitration.\"\n*190 In order to determine whether an agreement to arbitrate existed between the parties at bar, the court before which this action was brought would have had to determine the issue of coverage. If there was coverage under the policy, then arbitration should have proceeded. Liberty Mutual argues that the issue it presented to the Circuit Court was limited to the question of whether the Circuit Court would take jurisdiction in the dispute over the interpretation of the insurance policy. The inarticulated presumption here is that the section of the Uniform Arbitration Act invoked in the petition to stay arbitration authorizes the court to do no more than freeze the status quo of the parties while the petitioning party determines whether to bring an action for declaratory judgment or some other remedy in which the substantive issue of the availability of arbitration can be decided.\n 1 We do not find this to be the case. The statute provides that when the existence of an agreement to arbitrate comes into issue, it \"* * * shall be forthwith and summarily tried and the stay ordered if found for the moving party.\" Thus, once the issue is raised in the pleadings, the statute provides for substantive disposition by the court prior to the issuance of the stay order.\n 2, 3 Liberty Mutual's attempt to limit the issue raised in its petition to stay arbitration was without effect, for when res judicata was pleaded as a bar to the complaint for declaratory judgment, it was not only a bar to the particular issue raised by Liberty Mutual in the petition to stay arbitration, \"but to every point which properly belongs to the subject of litigation, and which the parties, exercising a reasonable degree of diligence, might have brought forward in time.\" Howard T. Fisher & Asso. Inc. v. Shinner Realty Co. (1960), 24 Ill. App. 2d 216, 223, 164 N.E.2d 266, 270; Prochotsky v. The Union Central Life Ins. Co. (1972), 2 Ill. App. 3d 354.\nThis rule has evolved not only to assure litigants of an eventual termination of their lawsuits, but also to prevent the collateral impeachment of court rulings. Although Liberty Mutual complains that the court considering its petition to stay arbitration refused to hear evidence on its policy defenses, its remedy was to appeal that court's adverse decision, not to seek a more favorable forum in which to litigate the same matter.\n 4 The propriety of the August 1 order is not before this court. The issue before us is whether res judicata was properly raised as a basis to dismiss Liberty Mutual's complaint for declaratory judgment, and we find that it was.\nJudgment affirmed.\nDEMPSEY and McNAMARA, JJ., concur.\n",
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| Appellate Court of Illinois | Appellate Court of Illinois | SA | Illinois, IL |
469,114 | Celebrezze, Kennedy, Ryan | 1986-04-28 | false | stephens-industries-inc-plaintiff-appellant-v-james-r-mcclung | null | STEPHENS INDUSTRIES, INC., Plaintiff-Appellant, v. James R. McCLUNG, Trustee in Bankruptcy, Etc., Defendant-Appellee | 14 Collier bankr.cas.2d 1298, Bankr. L. Rep. P 71,113 Stephens Industries, Inc. v. James R. McClung Trustee in Bankruptcy, Etc. | Rodney S. Justice (argued), Wilson, Stav-ros and Justice, Ashland, Ky., for plaintiff-appellant., James D. Lyon (argued), Odell & Howard, Lexington, Ky., for defendant-appel-lee. | null | null | null | null | null | null | null | Argued March 10, 1986. | null | null | 73 | Published | null | <parties id="b1091-2">
STEPHENS INDUSTRIES, INC., Plaintiff-Appellant, v. James R. McCLUNG, Trustee in Bankruptcy, etc., Defendant-Appellee.
</parties><br><docketnumber id="b1091-5">
No. 85-5694.
</docketnumber><br><court id="b1091-6">
United States Court of Appeals, Sixth Circuit.
</court><br><otherdate id="b1091-8">
Argued March 10, 1986.
</otherdate><br><decisiondate id="b1091-9">
Decided April 28, 1986.
</decisiondate><br><attorneys id="b1091-21">
Rodney S. Justice (argued), Wilson, Stav-ros and Justice, Ashland, Ky., for plaintiff-appellant.
</attorneys><br><attorneys id="b1091-22">
James D. Lyon (argued), Odell & Howard, Lexington, Ky., for defendant-appel-lee.
</attorneys><br><judges id="b1092-3">
<span citation-index="1" class="star-pagination" label="387">
*387
</span>
Before KENNEDY and RYAN, Circuit Judges and CELEBREZZE, Senior Circuit Judge.
</judges> | [
"789 F.2d 386"
]
| [
{
"author_str": "Kennedy",
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"opinion_text": "789 F.2d 386\n 14 Collier Bankr.Cas.2d 1298, Bankr. L. Rep. P 71,113STEPHENS INDUSTRIES, INC., Plaintiff-Appellant,v.James R. McCLUNG, Trustee in Bankruptcy, etc., Defendant-Appellee.\n No. 85-5694.\n United States Court of Appeals,Sixth Circuit.\n Argued March 10, 1986.Decided April 28, 1986.\n \n Rodney S. Justice (argued), Wilson, Stavros and Justice, Ashland, Ky., for plaintiff-appellant.\n James D. Lyon (argued), Odell & Howard, Lexington, Ky., for defendant-appellee.\n Before KENNEDY and RYAN, Circuit Judges and CELEBREZZE, Senior Circuit judge.\n CORNELIA G. KENNEDY, Circuit Judge.\n \n \n 1\n Appellant, Stephens Industries, Inc. (\"SI\"), appeals from the District Court's order affirming the Bankruptcy Court's order approving the sale of the assets of the debtor, American Signal Corporation (\"ASC\"), a/k/a WPRT AM/FM Radio Station. From 1952 until 1980, SI owned and operated radio station WPRT in Prestonsburg, Kentucky. In July 1980, SI sold the radio station to ASC. Under the purchase agreement, SI transferred all the radio station's assets to ASC and applied to the FCC for formal transfer of the broadcasting licenses. ASC agreed to pay a small down payment and signed a $252,000 promissory note payable over a nine-year period for the balance of the purchase price. As part of the transaction, ASC granted SI a mortgage and security lien on the conveyed assets to secure the unpaid balance of the purchase price.\n \n \n 2\n ASC made installment payments until 1982, when it defaulted. SI commenced a civil action in the Floyd County, Kentucky Circuit Court to foreclose on the mortgage and for return of all the property conveyed to ASC in 1980. As a result of the civil action, ASC filed for Chapter 11 in the Bankruptcy Court for the United States District Court for the Eastern District of Kentucky on December 17, 1982 seeking protection from SI and all its other secured and unsecured creditors. Under Chapter 11, ASC maintained the radio station as a debtor in possession until ASC abandoned this status and the Bankruptcy Court appointed James R. McClung as trustee on September 23, 1983. When the trustee took control of ASC's estate, the estate consisted of two small tracts of land where the radio station had built its AM and FM antennae, various broadcasting and office equipment, and the two FCC licenses. In addition, ASC had leased some broadcasting equipment from Rockwell International Corporation (\"Rockwell\"). ASC had encumbered all its physical assets for more than their value. Court-appointed appraisers concluded that the tracts of land were worth $4,500 and that the leased equipment was worth approximately $29,645. Besides secured creditors, ASC had numerous unsecured creditors and owed taxes and administrative expenses to various priority creditors. The trustee was unable to operate the radio station at a profit. Eventually, the trustee faced the prospect of shutting down operations because ASC's dilapidated equipment was failing and ASC could not meet payroll and other necessary operating expenses. ASC's only unencumbered assets were the FCC licenses. If the station went off the air for an extended period of time, however, FCC rules could require forfeiture of the licenses. Consequently, the trustee decided to sell the radio station as a going concern and to propose a plan of liquidation under 11 U.S.C. Sec. 1123(a)(5)(D) and (b)(4).\n \n \n 3\n In August 1984, the trustee signed an agreement to sell ASC's assets to James C. Ball and Robert Smallwood for $275,000 over an eleven-year payment period subject to the Bankruptcy Court's approval. The parties later modified the purchase price to $200,000 cash. On October 31, 1984, the trustee filed a motion in the Bankruptcy Court asking for authorization to sell ASC's assets to Ball and Smallwood. On November 10, 1984, SI filed an objection to the proposed sale and requested that the Bankruptcy Court lift the automatic stay of the proceedings in the Floyd County Circuit Court. At a hearing on the proposed sale on November 19, 1984, the Bankruptcy Court gave SI until November 28, 1984 to make a counteroffer to purchase ASC's assets \"for a sum in excess of $200,000.00 in cash.\" SI responded but its counteroffer did not mention cash or a sum certain of money. Instead, SI proposed to \"set off\" its claimed lien of approximately $300,000 in exchange for ASC's tangible property and the licenses. SI offered to deposit earnest money and an unspecified bond. In a November 30, 1984 order, the Bankruptcy Court ruled that SI's counteroffer did not match the $200,000 cash offer from Ball and Smallwood. The Bankruptcy Court rejected SI's counteroffer sub silentio concluding that since SI could not have a secured lien on the FCC licenses, SI only had a $7,900 secured lien. Although the Bankruptcy Court \"[was] dissatisfied with the evidence as to the nature and extent of the advertising done by the debtor in possession in an attempt to effectuate a sale of the debtor's radio station,\" the Bankruptcy Court entered an order on November 30, 1984 approving the sale to Ball and Smallwood for $200,000 cash. The Bankruptcy Court noted that: \"The debtor is without funds to continue operation of the station while attempting to effectuate a better sale.\"\n \n \n 4\n On December 5, 1984, SI moved to modify, amend or set aside the November 30, 1984 order claiming that the Bankruptcy Court misunderstood SI's counteroffer. On December 10, 1984, SI moved to hold the closing of the sale to Ball and Smallwood in abeyance until the Bankruptcy Court could hear the motion to modify, amend or set aside the previous order. On December 11, 1984, the Bankruptcy Court stayed the closing until December 13, 1984 so that SI could make a cash bid on the property. SI, however, failed to submit a cash bid and the trustee closed the sale of the property pending FCC approval. Pursuant to the Bankruptcy Court's directions, the trustee placed the proceeds in escrow. On December 18, 1984, the Bankruptcy Court heard SI's motion to modify, amend or set aside the December 10, 1984 order. On January 9, 1985, the Bankruptcy Court entered an order overruling SI's motion. SI appealed to the United States District Court for the Eastern District of Kentucky. The District Court affirmed the Bankruptcy Court's order approving the sale and overruling SI's motions to lift the automatic stay and to stay the sale of ASC's assets.\n \n \n 5\n Essentially, SI raises three issues in this appeal: (1) Whether the Bankruptcy Court erred in approving the sale of ASC's assets because the sale prejudiced SI's rights as a secured creditor under Chapter 11; (2) Whether the Bankruptcy Court abused its discretion in approving the sale because the trustee did not sell the assets in a commercially reasonable manner; and (3) Whether the Bankruptcy Court's refusal to grant SI adequate protection by lifting the automatic stay so that SI could pursue its remedies in the Floyd County Circuit Court foreclosure action constituted an abuse of discretion. For the reasons set forth below, we affirm the District Court's order affirming the Bankruptcy Court's order approving the sale of the assets and refusing to lift the automatic stay.\n \n I.\n \n 6\n Initially, SI argues that the Bankruptcy Court erred in approving the sale of ASC's assets under 11 U.S.C. Sec. 363(b)(1)1 because the sale prejudiced SI's rights as a secured creditor. The District Court affirmed the Bankruptcy Court's order authorizing the sale of ASC's assets. In reviewing a district court order regarding the final order of a bankruptcy court, this Court, in essence, reviews the final order of the bankruptcy court. See In re Global Western Development Corporation, 759 F.2d 724, 726 (9th Cir.1985).\n \n \n 7\n Title 11 U.S.C. Sec. 363(b)(1) allows a bankruptcy court, after notice and hearing, to authorize the sale of the debtor's assets outside the ordinary course of business. In In re Coastal Cable T.V., Inc., 24 B.R. 609, 611 (Bankr. 1st Cir.1982), vacated on other grounds, 709 F.2d 762 (1st Cir.1983), the Bankruptcy Appellate Panel for the First Circuit stated that: \"This power falls within the sound discretion of the trial court.\" See also In re Ancor Exploration Company, 30 B.R. 802, 808 (Bankr.N.D.Okla.1983) (\"the bankruptcy court should have wide latitude in approving even a private sale of all or substantially all of the estate assets not in the ordinary course of business under Sec. 363(b)\"). Accordingly, we review the Bankruptcy Court's order authorizing the sale of the assets under an abuse of discretion standard. As the Ninth Circuit stated in In re Posner, 700 F.2d 1243, 1246 (9th Cir.), cert. denied, 464 U.S. 848, 104 S. Ct. 155, 78 L. Ed. 2d 143 (1983), \"a reviewing court may determine that the Bankruptcy Court abused its discretion only when there is a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of all the relevant factors.\"\n \n \n 8\n In determining whether the Bankruptcy Court abused its discretion, this Court reviews the Bankruptcy Court's findings of fact under the \"clearly erroneous\" standard. Bankr. R. 8013. We review the Bankruptcy Court's conclusions of law, however, de novo. See In re Golf Course Builders Leasing, Inc., 768 F.2d 1167, 1169 (10th Cir.1985); In re Global Western Development Corporation, supra.\n \n \n 9\n SI contends that Sec. 363(b)(1) does not permit a Chapter 11 trustee to liquidate ASC's assets because such action would change a Chapter 11 reorganization, 11 U.S.C. Secs. 1101-1146, into a Chapter 7 liquidation, 11 U.S.C. Secs. 701-728. SI cites In re Braniff Airways, Inc., 700 F.2d 935, reh'g denied, 705 F.2d 450 (5th Cir.1983), to support its position. In Braniff, the Fifth Circuit held that the district court could not approve, under Sec. 363(b), a transaction providing for Braniff's transfer of cash, airplanes and equipment, terminal leases and landing slots in exchange for travel scrip, unsecured notes, and a profit participation in the proposed operation. The court viewed the transaction as \"in fact a reorganization.\" Id. at 940. The Fifth Circuit, however, expressly reserved the question whether Sec. 363(b) authorizes the sale of all of a debtor's assets. Id. at 939. See also Richmond Leasing Co. v. Capital Bank, N.A., 762 F.2d 1303, 1311-12 n. 10 (5th Cir.1985).\n \n \n 10\n In In re Lionel Corporation, 722 F.2d 1063 (2d Cir.1983), the Second Circuit discussed the circumstances under which a bankruptcy judge can authorize, prior to the acceptance of and outside any plan of reorganization under Chapter 11, the sale of an important asset of the debtor's estate, outside the ordinary course of business. After studying the statute's predecessors, the legislative history surrounding the enactment of current Chapter 11 in 1978, and the statute's underlying logic, the Second Circuit concluded \"that there must be some articulated business justification ... for using, selling, or leasing property out of the ordinary course of business before the bankruptcy judge may order such disposition under section 363(b).\" Id. at 1070. Accordingly, the court adopted a rule requiring that the bankruptcy judge \"expressly find from the evidence presented before him at the hearing a good business reason to grant such an application.\" Id. at 1071. Finally, the Second Circuit attempted to provide some guidance for the bankruptcy courts by stating:\n \n \n 11\n In fashioning its findings, a bankruptcy judge must not blindly follow the hue and cry of the most vocal special interest groups; rather, he should consider all salient factors pertaining to the proceeding and, accordingly, act to further the diverse interests of the debtor, creditors and equity holders, alike. He might, for example, look to such relevant factors as the proportionate value of the asset to the estate as a whole, the amount of elapsed time since the filing, the likelihood that a plan of reorganization will be proposed and confirmed in the near future, the effect of the proposed disposition on future plans of reorganization, the proceeds to be obtained from the disposition vis-a-vis any appraisals of the property, which of the alternatives of use, sale or lease the proposal envisions and, most importantly perhaps, whether the asset is increasing or decreasing in value. This list is not intended to be exclusive, but merely to provide guidance to the bankruptcy judge.\n \n \n 12\n Id.\n \n \n 13\n Furthermore, other courts that have considered the question whether a bankruptcy court can authorize the sale of all a debtor's assets under Sec. 363(b) have concluded that, at least in certain circumstances, a bankruptcy court can authorize such a sale. See, e.g., In re Brookfield Clothes, Inc., 31 B.R. 978 (S.D.N.Y.1983); In re Ancor Exploration Company, supra; In re Charlesbank Laundry Co., 37 B.R. 20 (Bankr.D.Mass.1983); In re Boogaart of Florida, Inc., 17 B.R. 480 (Bankr.S.D.Fla.1981); In re White Motor Credit Corporation, 14 B.R. 584 (Bankr.N.D. Ohio 1981) (relying on 11 U.S.C. Sec. 105); In re WHET, Inc., 12 B.R. 743 (Bankr.D.Mass.1981). We adopt the Second Circuit's reasoning in In re Lionel Corporation, supra, and conclude that a bankruptcy court can authorize a sale of all a Chapter 11 debtor's assets under Sec. 363(b)(1) when a sound business purpose dictates such action.\n \n \n 14\n The Bankruptcy Court implicitly found that an articulated business reason justified the sale. The trustee had been unable to operate the radio station at a profit. Since ASC could not meet its payroll and other operating expenses, the trustee faced the prospect of ceasing operations. If the station went off the air for an extended period of time, ASC could lose its FCC licenses. Consequently, we conclude that the Bankruptcy Court did not abuse its discretion in approving the sale of ASC's assets.\n \n \n 15\n SI was the only creditor to object to the proposed sale. In fact, SI did not object to the sale of the assets, but only to the sale of the assets to Ball and Smallwood. The Bankruptcy Court gave SI every opportunity to submit a cash bid for ASC's assets but SI failed to do so. Instead, SI offered to \"set off\" its claim in exchange for ASC's tangible property and broadcast licenses. The Bankruptcy Court refused to accept this counteroffer because SI only had a $7,900 secured lien. Although SI claimed a secured lien on the broadcast licenses, the Bankruptcy Court sub silentio refused to recognize SI's claim on the ground that federal law does not permit liens on federal broadcasting licenses.\n \n \n 16\n SI contends that the Bankruptcy Court erred in refusing to include the FCC licenses as part of the property that SI's mortgage secured. Although the Bankruptcy Court has not yet specifically ruled on the question of whether SI's mortgage includes the FCC licenses for the purposes of determining the distribution of the sale proceeds, the Bankruptcy Court sub silentio decided that SI's mortgage did not cover the FCC licenses in rejecting SI's counteroffer to \"set off\" the amount of its secured lien.2\n \n \n 17\n We hold that the Bankruptcy Court did not err in concluding that SI's mortgage did not include the FCC licenses. In In re Merkley, 94 F.C.C.2d 829, 54 Rad.Reg.2d 68, 70 (1983) (citations omitted), the Federal Communications Commission (\"FCC\") stated: \"The Commission has consistently held that a broadcast license, as distinguished from the station's plant or physical assets, is not an owned asset or vested property interest so as to be subject to a mortgage, lien, pledge, attachment, seizure, or similar property right.\" See also In re Radio KDAN, Inc., 11 F.C.C.2d 934, 12 Rad.Reg.2d 584, reconsideration denied, 12 F.C.C.2d 1026, 13 Rad.Reg.2d 100 (1968), affirmed on other grounds sub nom. W.H. Hansen v. Federal Communications Commission, 413 F.2d 374 (D.C.Cir.1969). Furthermore, 47 C.F.R. Sec. 73.1150(a) provides:\n \n \n 18\n In transferring a broadcast station, the licensee may retain no right of reversion of the license, no right to reassignment of the license in the future, and may not reserve the right to use the facilities of the station for any period whatsoever.\n \n \n 19\n SI's brief recognizes this authority but contends that under an FCC-created \"fiction,\" \"a broadcast license was held to follow and be tied to a station's hard, tangible, physical assets.\" SI contends that since a licensee could not sell a naked FCC license, then conversely the licensee could not transfer the hard assets without the FCC license. Somehow, SI concludes that since it had a mortgage on ASC's hard assets, it had a mortgage on the FCC licenses. We reject SI's argument.\n \n \n 20\n Since the Bankruptcy Court did not err in concluding that SI did not have a secured claim on the FCC licenses, we conclude that the Bankruptcy Court did not abuse its discretion in approving the $200,000 cash offer rather than SI's \"set off\" counteroffer. We also note that Rockwell had a security interest on the broadcasting equipment that ASC had acquired after its purchase of the radio station from SI. SI's \"set off\" proposal would have left Rockwell with nothing even though Rockwell's claim had priority. In addition, the \"set off\" proposal also would have adversely affected unsecured creditors and priority creditors having claims for taxes and administrative expenses. In fact, the $200,000 sale preserved the value of the estate for ASC's creditors. Finally, a lien on the proceeds of the sale protects any claim that SI may have had on ASC's assets. Consequently, the Bankruptcy Court did not err in approving the sale.\n \n II.\n \n 21\n SI contends that since the trustee did not arrange the sale in a commercially reasonable manner, the Bankruptcy Court abused its discretion in approving the sale. Although the Bankruptcy Court expressed dissatisfaction \"with the evidence as to the nature and extent of the advertising done by the debtor in possession in an attempt to effectuate a sale of the debtor's radio station,\" the Bankruptcy Court also recognizing that \"[t]he debtor is without funds to continue operation of the station while attempting to effectuate a better sale.\" Since the station's failure to continue operations would jeopardize ASC's FCC licenses, ASC could have lost its only unencumbered asset while trying to arrange a better deal. Under the circumstances, the Bankruptcy Court did not abuse its discretion in approving the sale.\n \n III.\n \n 22\n Finally, SI argues that the Bankruptcy Court abused its discretion in refusing to lift the automatic stay so that SI could pursue its remedies in the Floyd County Circuit Court foreclosure action. Title 11 U.S.C. Sec. 362(d) provides:\n \n \n 23\n On request of a party in interest and after notice and a hearing, the court shall grant relief from the stay provided under subsection (a) of this section, such as by terminating, annulling, modifying, or conditioning such stay--\n \n \n 24\n (1) for cause, including the lack of adequate protection of an interest in property of such party in interest; or\n \n \n 25\n (2) with respect to a stay of an act against property under subsection (a) of this section, if--\n \n \n 26\n (A) the debtor does not have an equity in such property; and\n \n \n 27\n (B) such property is not necessary to an effective reorganization.\n \n \n 28\n Since 11 U.S.C. Sec. 362(d) commits the decision whether to lift the automatic stay to the discretion of the bankruptcy court, this Court will overturn the Bankruptcy Court's decision only upon a showing of abuse of discretion. See In re Holtkamp, 669 F.2d 505, 507 (7th Cir.1982). See also Cathey v. Johns-Manville Sales Corporation, 711 F.2d 60, 63 (6th Cir.1983).\n \n \n 29\n SI argues that the Bankruptcy Court should have lifted the automatic stay under 11 U.S.C. Sec. 362(d)(2). Before lifting the stay under Sec. 362(d)(2), the Bankruptcy Court would have had to find that ASC did not have an equity in the FCC licenses, which SI sought to foreclose, and that the licenses were not necessary to an effective reorganization. SI claims that ASC \"represented and acknowledged that it did not have any equity in the property and the property was obviously not necessary to an effective reorganization, since no reorganization had ever been planned or proposed....\" SI does not cite any authority for the claim that ASC did not have an equity in the FCC licenses. In In re Mellor, 734 F.2d 1396, 1400 n. 2 (9th Cir.1984) (citation omitted), the Ninth Circuit stated that: \" 'Equity,' ... is the value, above all secured claims against the property, that can be realized from the sale of the property for the benefit of the unsecured creditors.\" In this case, the FCC licenses were ASC's only unencumbered asset. Since ASC had an equity in the FCC licenses, we conclude that the Bankruptcy Court did not abuse its discretion in refusing to lift the automatic stay order.\n \n \n 30\n Accordingly, we affirm the District Court's order affirming the Bankruptcy Court's order approving the sale and refusing to lift the automatic stay.\n \n \n \n 1\n Title 11 U.S.C. Sec. 363(b)(1) provides:\n The trustee, after notice and a hearing, may use, sell, or lease, other than in the ordinary course of business, property of the estate.\n \n \n 2\n At the December 18, 1984 hearing on SI's motion to set aside the November 30, 1984 order authorizing the sale, the Bankruptcy Court stated:\n The court will set a hearing later on at which the court will hear evidence as to the value of these tracts of real estate and the value of the particular items of equipment that still are in existence that are covered by sales contract from Stephens Industries, for the purpose of determining how much of the proceeds he has a lien on, with respect to that tangible property, real and personal property. And then the court will later on rule on the issue, as I understand it, that is submitted pretty much on the issue of whether or not this documentation or the mortgage agreements between Stephens Industries and American Signal when they sold it is sufficient to create a security interest in the two licenses, the two radio station licenses, and the court will rule on that separately.\n Consequently, the Bankruptcy Court directed the trustee to place the proceeds from the sale in escrow with the understanding that whatever liens SI had on ASC's assets would attach to the proceeds of the sale.\n \n \n ",
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| Sixth Circuit | Court of Appeals for the Sixth Circuit | F | USA, Federal |
2,593,718 | Boudreau, Hargrave, Hodges, Kauger, Lavender, Opala, Summers, Watt, Winchester | 2001-06-26 | false | grp-of-texas-inc-v-eateries-inc | null | GRP of Texas, Inc. v. Eateries, Inc. | GRP OF TEXAS, INC., a Texas Corporation, Appellee, v. EATERIES, INC., an Oklahoma Corporation, Appellant | Cheryl Hunter, Jon Epstein, Hall, Estill, Hardwick, Gable, Golden & Nelson, Oklahoma City & Tulsa, OK, for Appellant., George D. Sherrill, Jr., DeBois, Sherrill & Reynolds, Duncan, OK, for Appellee.1 | null | null | null | null | null | null | null | null | null | null | 44 | Published | null | <citation id="b135-13">
2001 OK 53
</citation><br><parties id="b135-14">
GRP OF TEXAS, INC., a Texas corporation, Appellee, v. EATERIES, INC., an Oklahoma corporation, Appellant.
</parties><br><docketnumber id="b135-17">
No. 92,070.
</docketnumber><court id="AZG">
Supreme Court of Oklahoma.
</court><decisiondate id="A-7">
June 26, 2001.
</decisiondate><br><attorneys id="b137-5">
<span citation-index="1" class="star-pagination" label="97">
*97
</span>
Cheryl Hunter, Jon Epstein, Hall, Estill, Hardwick, Gable, Golden & Nelson, Oklahoma City & Tulsa, OK, for Appellant.
</attorneys><br><attorneys id="b137-6">
George D. Sherrill, Jr., DeBois, Sherrill & Reynolds, Duncan, OK, for Appellee.
<a class="footnote" href="#fn1" id="fn1_ref">
1
</a>
</attorneys><div class="footnotes"><div class="footnote" id="fn1" label="1">
<a class="footnote" href="#fn1_ref">
1
</a>
<p id="b137-11">
. Counsel are listed in the opinion based upon their filing entries of appearance in this Court as required by Okla.Sup.Ct.R. 1.5, 12 O.S.Supp. 2000 Ch. 15, App.
</p>
</div></div> | [
"2001 OK 53",
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"opinion_text": "\n27 P.3d 95 (2001)\n2001 OK 53\nGRP OF TEXAS, INC., a Texas corporation, Appellee,\nv.\nEATERIES, INC., an Oklahoma corporation, Appellant.\nNo. 92,070.\nSupreme Court of Oklahoma.\nJune 26, 2001.\nCheryl Hunter, Jon Epstein, Hall, Estill, Hardwick, Gable, Golden & Nelson, Oklahoma City & Tulsa, OK, for Appellant.\nGeorge D. Sherrill, Jr., DeBois, Sherrill & Reynolds, Duncan, OK, for Appellee.[1]\n*97 SUMMERS, J.\n¶ 1 GRP of Texas sold three restaurants to Eateries, Inc. by written agreement. The agreement provided that disputes relating thereto would be arbitrated. The agreement also provided that \"the parties further agree that the prevailing party shall be entitled to reimbursement of the costs of its own experts, evidence and legal counsel from the other party, who shall also bear the expense of the arbitration.\"\n¶ 2 GRP and Eateries went to arbitration. An award was made and confirmed by the District Court. On GRP's appeal the Court of Civil Appeals reversed the judgment, ordered the award vacated, and left the matter for further arbitration. The Court of Civil Appeals awarded an appellate attorney's fee to GRP.\n¶ 3 On remand the arbitrator again made an award. This time the District Court vacated the award, but did not remand the matter for additional arbitration. Eateries appealed the District Court's order, and argued that additional arbitration should occur. The Court of Civil Appeals affirmed in part and reversed in part the District Court's order. The appellate court agreed that the arbitration award should be vacated, but held that the matter should have been sent back to the arbitrator with instructions. We denied GRP's certiorari petition. GRP and Eateries each seek appeal-related attorney's fees.\n¶ 4 GRP claims to be entitled to a court awarded attorney's fee as prevailing party under 12 O.S.1991 § 936. Although the controversy before us today involves the enforcement of an arbitration agreement, we determine the propriety of applying § 936 by examining the character of the underlying obligation. Natkin & Co. v. Midwesco, Inc., 1993 OK 143, 863 P.2d 1222, 1225; ONEOK, Inc. v. Ming, 1998 OK 79, ¶ 6, 962 P.2d 1286, 1288.\n¶ 5 GRP states that § 936 applies because \"this case involves a contract for the sale of goods, wares and merchandise....\" The contract transfers many assets, some of which are undoubtedly goods, wares, and merchandise.[2] But the sale is for three restaurants, some attributes of which may not be within the scope of § 936. Is this a civil action to recover on a contract relating to the purchase or sale of goods, wares or merchandise? That question involves elements of fact, which a District Court, and not this Court, must determine. See, e.g., Darrow v. Spencer, 1978 OK 107, 581 P.2d 1309, 1314, (on remand trial court was required to determine what attorney services were performed, which services were necessary, and the value of the necessary services, and what a reasonable fee for such services, if any, should be). We thus decline to hold whether § 936 applies to the facts in this litigation.\n¶ 6 In Chamberlin v. Chamberlin, 1986 OK 30, 720 P.2d 721, we explained that *98 the original right to both appeal-related costs and appeal-related attorney's fees is established in the appellate court: \"In short, counsel fees on appeal, like taxable appellate costs, must be authorized by an appellate court in the case in which the services were performed.\" Id. 1986 OK 30 at ¶ 14, 720 P.2d at 728. Consistent with that opinion the Legislature enacted a procedural statute governing an application for appeal-related attorney's fees, 12 O.S.Supp.1993 § 696.4. A portion of its current version states that:\nC. An application for attorney's fees for services performed on appeal shall be made to the appellate court either in the applicant's brief on appeal or by separate motion filed any time before issuance of mandate. If in the brief, the application shall be made in a separate portion that is specifically identified. The application shall cite authority for awarding attorney's fees but shall not include evidentiary material concerning their amount. The appellate court shall decide whether to award attorney's fees for services on appeal, and if fees are awarded, it shall remand the case to the trial court for a determination of their amount. The trial court's order determining the amount of fees is an appealable order.\n12 O.S.Supp.1997 § 696.4(C).\nThis statute requires the application for appeal-related attorney's fees to be made to the appellate court, and the appellate court \"shall decide whether to award attorney's fees for services on appeal\" and remand to the trial court for a determination of the amount. Our application of § 696.4(C) has been consistent with our earlier opinions, and we have remanded cases to the trial court for a determination of the amount of a reasonable fee. Deloney v. Downey, 1997 OK 102, n. 6, 944 P.2d 312, 320; TISI v. Department of Corrections, 1998 OK 108, ¶¶ 18-19, 970 P.2d 166, 172-73. The applications for appeal-related attorney's fees by both GRP and Eateries are thus timely brought in this Court, although no prevailing party on the underlying litigation exists at this time.\n¶ 7 When prevailing party status is the statutory prerequisite for awarding attorney's fees we have defined the prevailing party as the party possessing an affirmative judgment at the conclusion of the entire case. Cunningham v. Public Service Co., 1992 OK 107, ¶ 4, 834 P.2d 974, 975. Before counsel fees may be awarded the case must be one that falls clearly within the express language of the authorizing statute. Cook v. Oklahoma Bd. of Public Affairs, 1987 OK 22, 736 P.2d 140, 154. We have explained that a party's designation as the prevailing party may be altered during the course of litigation, and that this alteration of status has an affect upon an order awarding attorney's fees. Thompson v. Independent School Dist. No. 94, Garfield County, 1994 OK 139, 886 P.2d 996, 997-998. See, e.g., Roofing and Sheet Metal Supply Company of Tulsa, Inc. v. Golzar-Nejad Khalil, Inc., 1996 OK 101, 925 P.2d 55, 60, (appeal of trial court attorney's fee award was moot when judgment was reversed). In other words, a prevailing party on an appeal may not ultimately prevail on the cause of action litigated, and thus would not be entitled to attorney's fees when that status is finally altered.\n¶ 8 Section 936 and our opinions are clear that the prevailing party \"shall\" be allowed reasonable attorney's fees. Section 696.4(C) and our opinions are equally clear that the appellate court is the court that must award such fees. Further, our opinions have stated that appeal-related attorney's fees are allowed when they are also allowed for trial court proceedings, and we recognize that an appeal is, for certain purposes, a continuation of the trial court proceeding.[3] We recognize that prevailing party status may change during the course of litigation, and that litigation may involve more than one appeal. We conclude that all of these requirements are best satisfied by an appellate court making a conditional award of attorney's fees.\n¶ 9 The Court has granted conditional attorney's fees in at least three published opinions. In Carpet World, Inc. v. Riddles, 1987 OK 42, 737 P.2d 939 (1987) we explained that *99 a prevailing party had not yet been determined and we then said that: \"We therefore direct the trial court to enter the appropriate award of fees to the ultimately prevailing party, and in determining that award the court may take into account the amount of costs and fees related to this appeal.\" Id. 737 P.2d at 942. In Williams Natural Gas Company v. Perkins, 1997 OK 72, 952 P.2d 483, we allowed a party appeal-related attorney's fees conditional upon prevailing upon success upon retrial. Id. at ¶ 26, 952 P.2d at 491. In Goodwin v. Durant Bank & Trust Company, 1998 OK 3, 952 P.2d 41, attorney's fees were awarded pursuant to 12 O.S.1991 § 939, and conditional upon a party prevailing upon remand. Id. at ¶ 10, 952 P.2d at 44.\n¶ 10 Some costs on appeal are based upon success of a party in the appeal. A successful appellant recovers appellate costs pursuant to 12 O.S.1991 § 978.[4] The prevailing party in an interlocutory appeal recovers appellate costs regardless of whether that party ultimately prevails on the action before the trial court. 12 Ohio St. 1991 § 978.1.[5] Of course, statutory allowance of costs does not include attorney's fees, unless stated otherwise, Wilson v. Glancy, 1995 OK 141, 913 P.2d 286, 291, and these costs are taxed \"of course\" by the Clerk. Williams Natural Gas Company v. Perkins, 1997 OK 72, ¶ 26, 952 P.2d 483, 491, (§ 978 costs). These statutes tax costs based upon prevailing on appeal, and not trial court prevailing party status. But § 936 costs are tied to the prevailing party status on the cause of action and not necessarily to the status of a party on the appeal. Thus, in Hamilton v. Telex Corp., 1981 OK 22, 625 P.2d 106, appeal-related attorney's fees on a prior appeal were proper for either party based upon ultimately prevailing on the § 936 cause of action. In sum, we look to the statutory authority for granting attorney's fees as costs, and prevailing in the appeal is not the litmus test for allowance of such fees.\n¶ 11 No prevailing party on the cause of action has been determined by either the trial court below or an appellate court in this appeal. No party is entitled to an unconditional award of statutory prevailing party attorney's fees. We hereby conditionally award statutory prevailing party status appeal and certiorari-related attorney's fees to either GRP or Eateries based upon the following conditions:\n1. The award is to the party who ultimately prevails on a cause of action in the trial court, and the trial court shall set the amount of the fees taxed as costs after the identity of the prevailing party is determined by the trial court;\n2. The nature of the cause of action upon which the party prevails must be that for which statutory attorney's fees are authorized. That is, the party must show that a particular \"prevailing party\" attorney's fee statute applies to the controversy. The prevailing party requesting attorney's fees taxed as costs has the burden of making this showing; and\n3. Where reasonable attorneys fees are authorized by statute the trial court must make a determination what attorney services were performed that relate to the cause of action covered by the particular applicable attorney's fee statute, the value of the services, and what a reasonable fee is for such services. The prevailing party requesting attorney's fees taxed as costs has the burden of showing facts necessary to support the determination of the trial court.\n¶ 12 Eateries claims that appeal-related attorney's fees are also authorized by 15 *100 O.S.1991 § 813.[6] It argues that attorney's fees are included in the statutory language: \"Costs of the application and of the proceedings subsequent thereto, and disbursements, may be awarded by the court.\" Id. at § 813(D). Identical language appears in the Uniform Arbitration Act.[7]\n¶ 13 We have said that statutory allowance of costs does not include attorney's fees, unless stated otherwise. Wilson v. Glancy, supra. Section 813 was enacted in 1978, and prior to that time this Court explained that attorney's fees were not included in a statute authorizing costs. See City of Moore v. Central Oklahoma Master Conservancy District, 1968 OK 81, 441 P.2d 452, 461, where we construed 12 O.S.1961 § 978. Thus, Eateries focuses upon the term \"disbursements\" and argues that a disbursement includes an attorney's fee.\n¶ 14 We need not determine at this time whether an attorney's fee may be deemed included, within the term \"disbursements\" used in § 813. The trial court has not had the opportunity to determine if a \"disbursement\" in post-arbitration practice includes a counsel fee. It will have the opportunity on remand to make that determination upon proper application, along with the applicability or not of 12 Ohio St. 1991 § 936. It may consider attorney's fees related to this appeal at that time.\n¶ 15 GRP and Eateries also claim appeal-related attorney's fees under the Asset Sale Agreement. Generally, questions of fact arising from a contract are determined by the trier of fact. Fowler v. Lincoln County Conservation District, 2000 OK 96, ¶ 14, 15 P.3d 502, 507. Although the parties have agreed to arbitration, attorney's fees related to court proceedings after arbitration are not part of an award made by the arbitrator. The court making the award of court-related attorney's fee must determine if the appropriate statutory or contractual authority exists for the court-related fees. While both parties agree generally that a contractual right to court-related attorney's fees exists, they disagree as to whether each of them has satisfied the contractual language and is contractually entitled to the fees. To the extent that the parties rely upon prevailing-party status as a condition precedent for attorney's fees related to appellate or certiorari court proceedings, no prevailing party on the proceeding to enforce the contract exists at this point in the litigation. Appeal-related attorney's fees for this appeal based upon the parties' agreement are not denied or granted at this time. Rather, we grant the fee requests conditioned upon a party making a timely application to the trial court for contract-based appeal-related attorney's fees, and showing that the conditions for making such an award have been satisfied.\n*101 ¶ 16 In sum, neither party to this appeal has an unconditional right to either statutory or contractual appeal-related attorney's fees at this time. Because no party is a prevailing party on the cause of action at this stage of the litigation we deny the requests for an unconditional award of fees. However, we hold that either party may seek appeal and certiorari-related attorney's fees conditioned upon that party making a timely showing in the trial court that the party has satisfied the requirements of statute or contract for the appeal and certiorari-related attorney's fees requested.\n¶ 17 HARGRAVE, C.J., WATT, V.C.J., LAVENDER, OPALA, SUMMERS, JJ., concur.\n¶ 18 HODGES, KAUGER, BOUDREAU, WINCHESTER, JJ., dissent.\nNOTES\n[1] Counsel are listed in the opinion based upon their filing entries of appearance in this Court as required by Okla.Sup.Ct.R. 1.5, 12 O.S.Supp. 2000 Ch. 15, App.\n[2] The Asset Sale Agreement identifies the assets:\n\n1. Sale of Assets and Business: As of the date hereof (\"the Closing Date\"), Seller has sold to Buyer, ... all assets and rights of Seller related to the business of the Restaurants as of Closing date (the \"Business\"), including without limitation all inventories of food and beverage, all furniture, fixtures, and decor, all menus, paper goods, flatware, glassware, equipment, utensils, garments, and linens, all cash, cash equivalents, deposits, allowances, accounts receivable or other business notes, all judgments and claims, all right, title and interest in any and all express or implied agreements, contracts, leases, warranties, certificates, or licenses (including licenses and permits issued by governmental authorities), all records, files, papers, and correspondence of the Business such as advertising materials, accounting records, sales and purchase records, and employment records (the \"Assets\").\nAsset Sale Agreement, O.R. at 173.\n[3] Grider v. USX Corp., 1993 OK 13, 847 P.2d 779, 786, (appeals are a continuation of the same case); Mabee Oil & Gas Co. v. Price, 1947 OK 81, 179 P.2d 916, 918, (same).\n[4] 12 O.S.1991 § 978:\n\nWhen a judgment or final order is reversed, the plaintiff in error shall recover his costs, including the costs of the transcript of the proceedings, or case-made, filed with the petition in error; and when reversed in part and affirmed in part, costs shall be equally divided between the parties.\n[5] 12 O.S.1991 § 978.1:\n\nWhen an interlocutory order of a district court is reviewed on appeal or on certiorari and the interlocutory order is reversed, the prevailing party shall recover his costs, exclusive of attorney fees, including the cost deposit and the costs of preparing the record on appeal or on certiorari, regardless of the ultimate disposition of the action; and when the interlocutory order is reversed in part and affirmed in part, the costs shall be equally divided between the parties.\n[6] 15 O.S.1991 § 813:\n\n§ 813. Modification or correction of award by court Grounds\nA. Upon application made within ninety (90) days after delivery of a copy of the award to the applicant, the court shall modify or correct the award when:\n1. There was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award;\n2. The award is imperfect in a matter of form, not affecting the merits of the controversy; or\n3. The arbitrators have made an award upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted.\nB. If the application is granted, the court shall modify and correct the award so as to effect its intent and shall confirm the award as modified and corrected. Absent any modification or correction, the court shall confirm the award as made.\nC. An application to modify or correct an award may be joined in the alternative with an application to vacate the award.\nD. Upon the granting of an order confirming, modifying or correcting an award, a judgment or decree shall be entered in conformity therewith and be enforced as any other judgment or decree. Costs of the application and of the proceedings subsequent thereto, and disbursements, may be awarded by the court.\n[7] Uniform Arbitration Act § 14, 7 U.L.A. 419 (1997), states:\n\n§ 14 Judgment or Decree on Award.\nUpon the granting of an order confirming, modifying or correcting an award, judgment or decree shall be entered in conformity therewith and be enforced as any other judgment or decree. Costs of the application and of the proceedings subsequent thereto, and disbursements may be awarded by the court.\n\n",
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| Supreme Court of Oklahoma | Supreme Court of Oklahoma | S | Oklahoma, OK |
2,393,182 | Newman, Chief Judge, and Kelly and Gallagher, Associate Judges | 1980-05-22 | false | hodge-v-southern-railway-co | Hodge | Hodge v. Southern Railway Co. | Thomas R. HODGE III, Appellant, v. SOUTHERN RAILWAY COMPANY, Appellee | Leslie M. Shulman, Washington, D.C., with whom John C. Hayes, Jr., Washington, D.C., was on briefs, for appellant., Stephen A. Trimble, Washington, D.C., with whom Richard W. Turner, Washington, D.C., was on brief, for appellee. | null | null | null | null | null | null | null | Argued March 19, 1980. | null | null | 14 | Published | null | <parties id="b597-8">
Thomas R. HODGE III, Appellant, v. SOUTHERN RAILWAY COMPANY, Appellee.
</parties><br><docketnumber id="b597-10">
No. 79-806.
</docketnumber><br><court id="b597-11">
District of Columbia Court of Appeals.
</court><br><otherdate id="b597-12">
Argued March 19, 1980.
</otherdate><br><decisiondate id="b597-13">
Decided May 22, 1980.
</decisiondate><br><attorneys id="b597-20">
Leslie M. Shulman, Washington, D.C., with whom John C. Hayes, Jr., Washington, D.C., was on briefs, for appellant.
</attorneys><br><attorneys id="b597-21">
Stephen A. Trimble, Washington, D.C., with whom Richard W. Turner, Washington, D.C., was on brief, for appellee.
</attorneys><br><judges id="b597-22">
Before NEWMAN, Chief Judge, and KELLY and GALLAGHER, Associate Judges.
</judges> | [
"415 A.2d 543"
]
| [
{
"author_str": "Kelly",
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": null,
"author_id": null,
"opinion_text": "\n415 A.2d 543 (1980)\nThomas R. HODGE III, Appellant,\nv.\nSOUTHERN RAILWAY COMPANY, Appellee.\nNo. 79-806.\nDistrict of Columbia Court of Appeals.\nArgued March 19, 1980.\nDecided May 22, 1980.\nLeslie M. Shulman, Washington, D.C., with whom John C. Hayes, Jr., Washington, D.C., was on briefs, for appellant.\nStephen A. Trimble, Washington, D.C., with whom Richard W. Turner, Washington, D.C., was on brief, for appellee.\nBefore NEWMAN, Chief Judge, and KELLY and GALLAGHER, Associate Judges.\nKELLY, Associate Judge:\nAppellant Thomas R. Hodge III, a Tennessee resident, appeals the June 25, 1979 dismissal of his complaint against appellee Southern Railway Company (\"Southern\"), a corporation whose principal home business office is in the District of Columbia, for personal injuries sustained in Tennessee. He argues that the trial court erred in applying the one-year statute of limitations in the Tennessee Workmen's Compensation Law (Tenn.Code Ann. § 50-914 (1955)),[1]*544 instead of the District of Columbia's three-year limitation period. D.C.Code 1973, § 12-301[8]. We agree and reverse.\nAppellant, a grain inspector employed by White Lily Foods Company, slipped and fell from a railroad car during the course of his employment in Knoxville, Tennessee on June 7, 1976. He alleged that his severe injuries were proximately caused by a \"bent or defective ladder, handhold or grab iron\" on a grain car that appellee had accepted for transport on its line.\nAppellant collected medical expenses and partial disability benefits of approximately $7000 from his employer's workmen's compensation carrier, under Tenn.Code Ann. §§ 55-901 et seq., the Tennessee Workmen's Compensation Law. He then filed a complaint in the Superior Court of the District of Columbia on February 16, 1979, alleging that Southern had breached its duty of care as set forth in the Federal Safety Appliance Acts, 45 U.S.C. § 1 et seq. (1976). Southern's motion to dismiss the claim, treated by the court as a motion for summary judgment, was granted on the ground that Hodge was bound by the Tennessee Workmen's Compensation Law provision that places a one-year statute of limitations on filing suit against third parties.\nThe only issue before us is whether the law of the forum (the District of Columbia) or the law of the place of injury (Tennessee) determines the statute of limitations for this action.[2]\n\"According to the established rule, a limitation on the time of suit is procedural and is governed by the law of the forum.\" Bell v. Kelly Motor Lines, 95 F. Supp. 682, 683 (D.D.C.1951) (quoting Kaplan v. Manhattan Life Insurance Co., 71 App.D.C. 250, 252-53, 109 F.2d 463, 465-66 (1939)). The Kaplan rule has been recently reaffirmed by this court. May Department Stores v. Devercelli, D.C.App., 314 A.2d 767, 773 (1973); see Restatement (Second) of Conflict of Laws § 142 (1971).\nAppellee concedes that the law of the District of Columbia would normally determine the limitation period in a tort action, but contends that Moran v. Harrison, 67 App.D.C. 237, 91 F.2d 310 (1937),[3] dictates an exception here, ostensibly because Tennessee statutorily \"created\" appellant's cause of action.\nHowever, the Moran exception is inapposite here: appellant's basis for recovery against Southern is simply a traditional common law negligence claim, a cause of action which considerably antedated the enactment of Tennessee's Workmen's Compensation Law in 1919, and was neither eradicated nor reinstated subsequently in Tennessee by the Workmen's Compensation Law.\nAs the Tennessee Supreme Court recently stated, \"It is apparent beyond dispute that the legislature enacted Tenn.Code Ann. § 50-914 in order to allow an injured workman to recover the benefits under the Workmen's Compensation Law and also to *545 pursue his common law rights.\" Dobbins v. Terrazzo Machine & Supply Co., 479 S.W.2d 806, 809 (Tenn.1972) (emphasis added).\nEven before the Tennessee law was amended in 1949 to restore a workman's right to recover against both his employer's workmen's compensation carrier and a third party, it had allowed a workman to bring an action at law against a third person. The Workmen's Compensation Act, 1919 Tenn.Pub.Acts, ch. 123, § 14, provided: \"The injured employe may at his option either claim compensation or proceed at law against such other person to recover damages, or proceed against both the employer and other such person, but he shall not be entitled to collect from both.\"\n\"The purpose of the [law] was to prevent the injured employee from receiving double compensation for his injury.\" Wilson v. City of Chattanooga, 179 Tenn. 234, 238, 165 S.W.2d 373, 374 (1942); Elkins Construction Co. v. Naill Brothers, 168 Tenn. 165, 166, 76 S.W.2d 326, 327 (1934); City of Nashville v. Latham, 160 Tenn. 581, 583, 28 S.W.2d 46, 48 (1930). The Tennessee Supreme Court explicitly stated, as early as 1921, that the Workmen's Compensation Law \"nowhere undertakes to deny or abridge the employee's common law right of action against a third person . . . .\" Bristol Telephone Co. v. Weaver, 146 Tenn. 511, 524, 243 S.W. 299, 302 (1921) (emphasis added).\nSince an injured workman's common law action against a third party both preceded and survived the 1919 enactment of the Tennessee Workmen's Compensation Act, it would be illogical to conclude, as appellee does, that the legislature performed the redundant act of \"creating,\" or recreating, that right of action in 1949.\nHaving concluded that appellee's common law right to bring a personal tort action against a person other than his employer was neither extinguished nor created by the Tennessee Workmen's Compensation Statute, we hold that Moran v. Harrison, supra, is inapplicable and that the law of the forum, the District of Columbia, and not that of the locus of the injury, governs the statute of limitations. Bell v. Kelly Motor Lines, supra.\nReversed.\nNOTES\n[1] The 1949 Amendment to Tenn.Code Ann. § 50-914 allowed an injured workman to bring an action against a third party even after he had received workmen's compensation, but stated, in pertinent part, that: \"Such action against such other person by the injured workmen,. . . must be instituted in all cases within one (1) year from the date of injury. Failure . . . to bring such action within said one (1) year period shall operate as an assignment to the employer . . . [who] may enforce same in his own name . . . [and] shall have six (6) months after such assignment within which to commence such suit.\"\n\nWe note that the general statute of limitations for personal injury torts in Tennessee, Tenn.Code Ann. § 28-304, is also one year. Tennessee also bars actions which would have been barred by the statute of limitations in the jurisdiction where the action arose. Tenn.Code Ann. § 28-114.\nRather than create a new cause of action, the 1949 Amendment permitted dual recovery (subject to the employer's right to subrogation), under the Workmen's Compensation Act and also via an \"action against such other person as against whom there was a legal remedy.\" Compiler's Notes to 1949 Amendment, 1949 Tenn.Pub.Acts, ch. 277 (emphasis added).\n[2] Appellee never raised the issue of forum non conveniens.\n[3] Moran stands for a venerable proposition: \"If. . . the law of the State which has created a right of action . . . [states] that it shall expire after a certain period of limitations has elapsed, no action begun [afterwards] can be maintained in any jurisdiction.\" Id. at 240, 91 F.2d at 313. See Restatement, supra at § 143.\n\n",
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| District of Columbia Court of Appeals | District of Columbia Court of Appeals | S | District of Columbia, DC |
1,159,937 | Holmes | 1986-05-02 | false | johnson-county-memorial-gardens-inc-v-city-of-overland-park | null | Johnson County Memorial Gardens, Inc. v. City of Overland Park | Johnson County Memorial Gardens, Inc., Appellant, v. City of Overland Park, Board of Zoning Appeals of the City of Overland Park, and Ed Fickes, Appellees | Michael J. Gallagher, ofWassberg, Gallagher & Jones, of Kansas City, Missouri, argued the cause, and Thomas M. Franklin, of the same firm, and Charles D. Kugler, of Vasos, Kugler & Dickerson, of Kansas City, Kansas, were with him on the brief for appellant., Henry Cox, assistant city attorney, argued the cause, and Rod L. Richardson, and Thomas D. Billam, of Wallace, Saunders, Austin, Brown and Enochs, Chartered, of Overland Park, were with him on the briefs for appellees., Edwin P. Carpenter, of Hiatt & Carpenter, Chartered, of Topeka, was on the amicus curiae brief for Kansas Cemetery Association. | null | null | null | null | null | null | null | null | null | null | 8 | Published | null | <docketnumber id="b269-5">
No. 58,476
</docketnumber><br><parties id="b269-6">
Johnson County Memorial Gardens, Inc.,
<em>
Appellant,
</em>
v. City of Overland Park, Board of Zoning Appeals of the City of Overland Park, and Ed Fickes,
<em>
Appellees.
</em>
</parties><br><citation id="b269-7">
(718 P.2d 1302)
</citation><decisiondate id="AAf">
Opinion filed May 2, 1986.
</decisiondate><br><attorneys id="b269-16">
<em>
Michael J. Gallagher,
</em>
ofWassberg, Gallagher & Jones, of Kansas City, Missouri, argued the cause, and
<em>
Thomas M. Franklin,
</em>
of the same firm, and
<em>
Charles D. Kugler,
</em>
of Vasos, Kugler & Dickerson, of Kansas City, Kansas, were with him on the brief for appellant.
</attorneys><br><attorneys id="b269-17">
<em>
Henry Cox,
</em>
assistant city attorney, argued the cause, and
<em>
Rod L. Richardson,
</em>
and
<em>
Thomas D. Billam,
</em>
of Wallace, Saunders, Austin, Brown and Enochs, Chartered, of Overland Park, were with him on the briefs for appellees.
</attorneys><br><attorneys id="b269-18">
<em>
Edwin P. Carpenter,
</em>
of Hiatt & Carpenter, Chartered, of Topeka, was on the
<em>
amicus curiae
</em>
brief for Kansas Cemetery Association.
</attorneys> | [
"718 P.2d 1302",
"239 Kan. 221"
]
| [
{
"author_str": "Holmes",
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"type": "010combined",
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"author_id": 4471,
"opinion_text": "\n239 Kan. 221 (1986)\n718 P.2d 1302\nJOHNSON COUNTY MEMORIAL GARDENS, INC., Appellant,\nv.\nCITY OF OVERLAND PARK, BOARD OF ZONING APPEALS OF THE CITY OF OVERLAND PARK, and ED FICKES, Appellees.\nNo. 58,476\nSupreme Court of Kansas.\nOpinion filed May 2, 1986.\nMichael J. Gallagher, of Wassberg, Gallagher & Jones, of Kansas City, Missouri, argued the cause, and Thomas M. Franklin, of the same firm, and Charles D. Kugler, of Vasos, Kugler & Dickerson, of Kansas City, Kansas, were with him on the brief for appellant.\nHenry Cox, assistant city attorney, argued the cause, and Rod L. Richardson, and Thomas D. Billam, of Wallace, Saunders, Austin, Brown and Enochs, Chartered, of Overland Park, were with him on the briefs for appellees.\nEdwin P. Carpenter, of Hiatt & Carpenter, Chartered, of Topeka, was on the amicus curiae brief for Kansas Cemetery Association.\nThe opinion of the court was delivered by\nHOLMES, J.:\nJohnson County Memorial Gardens, Inc., a Kansas *222 corporation, appeals from an order sustaining defendants' motion for summary judgment in an action by Memorial Gardens for an order of mandamus and other relief. The case was submitted to the court on stipulated facts which will be greatly summarized herein.\nJohnson County Memorial Gardens, Inc., (Memorial Gardens) owns and operates a cemetery by the same name situated on thirty-five acres of land in Johnson County, Kansas. Memorial Gardens has owned the cemetery since its inception in 1950. The subject property was initially located outside the city limits of Overland Park, Kansas; however, it now lies within the city by way of annexation which occurred in 1968. At that time the property was zoned R-1 (single family residential) under the Overland Park ordinances. In 1983 Memorial Gardens desired to dismantle an existing three-sided storage shed and replace it with an enclosed metal building. The need for this construction stemmed from theft and vandalism perpetrated upon the unsecured equipment Memorial Gardens had on the property. Appellant, through its building contractor, applied to the City of Overland Park for a building permit. This request to the defendant Ed Fickes, the code administrator in charge of issuing building permits, was denied and appellant was instructed that as the cemetery was a nonconforming use under R-1 zoning it would need to acquire a special use permit as a prerequisite to receipt of the requested building permit. Memorial Gardens declined to file an application for a special use permit.\nOn June 23, 1983, Memorial Gardens filed an appeal from the decision denying the building permit to the Board of Zoning Appeals. That appeal was rejected by the city zoning board after an August 17, 1983, hearing.\nAppellant then commenced this civil action in the District Court of Johnson County against the City of Overland Park, the Board of Zoning Appeals of the City of Overland Park, and Ed Fickes as the code administrator for the city. In its petition Memorial Gardens sought (1) an order of mandamus directing the code administrator and the city to issue a building permit, (2) reversal of the zoning board's order requiring the acquisition of a special use permit, (3) a determination that the city zoning ordinances did not apply to Memorial Gardens, (4) money damages, and (5) other relief.\n*223 Upon stipulated facts all parties moved for summary judgment. On July 18, 1985, the district court ruled in favor of the defendants and sustained their motion for summary judgment. The court found that Overland Park could properly zone plaintiff's land, that the preexisting use as a cemetery did not prohibit an R-1 underlying zoning classification and that state laws dealing with cemeteries did not preempt the field. The court also found that Memorial Gardens had failed to pursue and exhaust existing administrative remedies, and that such inaction precluded the granting of any of plaintiff's requested relief. Memorial Gardens now appeals to this court. Although appellant asserts several arguments, the controlling issues may be summarized as (1) did the city have the power to zone the property R-1, resulting in the cemetery becoming a nonconforming use, and (2) if it did have such authority, is this action precluded by reason of the failure of the appellant to exhaust its administrative remedies prior to filing suit? We think both issues must be answered in the affirmative.\nAppellant's basic position is that as cemeteries are extensively regulated by state statute, the state has preempted the field and cities are powerless to zone or control the use of pre-existing cemeteries other than to create a zoning classification specifically allowing cemeteries. Under this theory, it is alleged that the Memorial Gardens cemetery property cannot be a nonconforming use and therefore is not required to obtain a special use permit.\nInitially it should be noted that cemeteries supply an essential service. To fulfill their necessary function they require adequate space for burial plots, lawns, shrubs, trees, sculptures and roads. Equipment is necessary to maintain a cemetery in a useful and acceptable condition. Accessory buildings utilized in the management and care of the cemetery grounds may be necessary. It has been universally recognized that a state may, in the exercise of its police power, regulate the location and operation of cemeteries within its borders. 14 Am.Jur.2d, Cemeteries § 9. In Kansas, the construction and maintenance of cemeteries, and the organization of cemetery corporations, are extensively regulated by statute. See generally K.S.A. 12-1401 et seq.; K.S.A. 15-1001 et seq.; and K.S.A. 17-1302 et seq. However, it does not appear the present issue has been addressed by the legislature within these *224 special provisions dealing with cemeteries. This being the case, it is then necessary to fall back upon the state's general planning and zoning statutes.\nA municipality has no inherent power to enact zoning laws, and the power of a local government to accomplish zoning exists only by virtue of authority delegated by the state. 82 Am.Jur.2d, Zoning and Planning § 7; Julian v. Oil Co., 112 Kan. 671, 212 P. 884 (1923). The planning and zoning power of Kansas municipalities is derived from the grant contained in K.S.A. 12-701 et seq. Under K.S.A. 12-707, a city is authorized to divide the land within its boundaries into zones or districts. The statute further allows the municipality to regulate and restrict uses within each zone or district. Toward this end, municipal zoning for the purpose of preserving the residential character of a neighborhood has been recognized as a legitimate exercise of the statutory enablement. Houston v. Board of City Commissioners, 218 Kan. 323, 328, 543 P.2d 1010 (1975). An integral component of our enabling law is the exception provided to existing uses from newly passed zoning ordinances. K.S.A. 12-709. By definition, an existing or nonconforming use is a lawful use of land or buildings which existed prior to the enactment of a zoning ordinance and which is allowed to continue despite the fact it does not comply with the newly enacted use restrictions. See 1 Anderson, American Law of Zoning § 6.01 (2d ed. 1976); City of Norton v. Hutson, 142 Kan. 305, Syl. ¶ 1, 46 P.2d 630 (1935); K.S.A. 12-709.\nWhile we have found no Kansas case which specifically addresses the authority of a city to assign an underlying zoning classification other than for cemetery use to an existing cemetery, at least two cases have tacitly recognized such authority. In City of Wichita v. Schwertner, 130 Kan. 397, 286 P. 266 (1930), the appellee, Schwertner, was the owner of an existing cemetery at the time it was zoned by the city as being in an \"A\" residence district which did not include cemetery use within its permitted categories. In a condemnation proceeding for widening of a street, the city contended damages should be limited to the property's value for residential use. Schwertner maintained the zoning ordinance was void as to the cemetery property and that damages should be based upon the property's use for cemetery purposes. Recognizing that a second trial could be in the offing, *225 the astute trial judge instructed the jury to find the amount of damages if used for cemetery purposes and the amount if used for residential purposes. The jury fixed the damages at $1,825.00 for cemetery use and $500.00 for residential use. The court then rendered judgment for the higher amount and the city appealed. This court refused to address the issue of whether the city had the power to establish zoning which did not include cemetery use and determined only that \"the zoning ordinance did not prohibit the use of the property for that purpose\" and that it was not error to allow the jury to fix damages based upon use of the property as a cemetery. 130 Kan at 401.\nIn Connolly v. Frobenius, 2 Kan. App. 2d 18, 574 P.2d 971, rev. denied 225 Kan. 843 (1978), the defendant Frobenius was the owner of a cemetery in Salina. He desired to construct a commercial mortuary on the cemetery property and, after replatting a portion of the property, obtained a change in zoning which would authorize the construction of a mortuary. The validity of the original zoning and the changed zoning was not addressed by the court in holding that the contracts between the individual cemetery plot owners and the cemetery owner precluded the establishment of a mortuary on the property.\nIn the instant case the learned trial judge, in a scholarly opinion, thoroughly considered the issues before the court. In his memorandum opinion, Judge Walton said:\n\"3. Plaintiff contends the City does not have the power to designate the use to which the property may be put. Plaintiff does not dispute that the City may have some zoning power over the property, though Plaintiff contends the City may not lawfully exercise, or alternatively, has not lawfully exercised, zoning power it may have over the property. While it may be true local ordinances addressing development on cemetery lands may be useful, the absence of such specific ordinances does not invalidate existing ordinances....\n\"4. Plaintiff contends that as a cemetery which pre-existed annexation, it is not a non-conforming use and that the City cannot classify the cemetery property with an underlying zoning category of R-1 (single family residential). This argument is premised on Kansas law which does not allow property dedicated for cemetery purposes to be used for non-cemetery purposes. Plaintiff further argues that it is not attempting to build a \"40-story mausoleum\" or other extreme structure and that this case must be limited to its own facts. The Court agrees that this case must be decided based upon its own facts; however, the Court cannot ignore the systematic approach of the City's zoning laws in the controlling zoning, land use, and development. Based upon this system of land use control, the property is given an underlying zoning designation to control development of the subject property and the surrounding property in conformity with the policies of the *226 City's master plan. Further, the cases cited by both parties reveal that the designation of underlying zoning for cemetery properties is neither unusual nor unlawful in other jurisdictions. See generally, 96 A.L.R. 3d 921. Plaintiff argues the City does not have the power to designate the underlying use of the land as R-1, or any use other than as a cemetery, and therefore the present use and the proposed construction of a maintenance building on the property is within the scope of the lawful use of the property as a cemetery. Further, Plaintiff argues that the City may not exercise the zoning power it may have over this property by use of an ordinance authorizing issuance of a `Special Use Permit.' This contention presumes that when a cemetery is annexed into the City a specific zoning category, or specific inclusion in an existing category, must be enacted; otherwise, the City cannot exercise any land use or development control over the property. The Court cannot accept this argument. The City is not attempting to prohibit the use of the land for proper cemetery purposes which may include maintenance and storage facility for equipment and operations related to lawful cemetery activities. Nor is the City attempting to allow the property to be used for purposes other than a cemetery by its use of zoning categories, land use, and development controls. Pursuant to K.S.A. 12-704 and 12-707, the City has obligated itself to implement planning. It may designate zoning categories for all land within the City limits. The underlying zoning category for the subject property is R-1 single family residential. This category does not interfere with any cemetery use, nor does it prohibit any lawful cemetery activity. This designation is used only to effectuate the zoning, planning, development, and land use controls adopted by the City. There is no showing that this zoning category precludes Plaintiff from building the structure desired. The City has a legitimate objective in using its zoning laws to control the land use upon and development of the site.\n\"5. Plaintiff's Petition and all Counts thereof are barred due to the Plaintiff's failure to exhaust its administrative remedies. As a general rule, the doctrine of exhaustion of administrative remedies requires that where a remedy before an administrative agency is provided, relief must be sought by exhausting this remedy before the Courts will act. 82 Am.Jur.2d § 331. The doctrine of exhaustion of administrative remedies is generally deemed applicable in zoning cases. [See] American National Bank & Trust Company v. City of Chicago, 249 N.E.2d 148, 150, 110 Ill. App. 2d 47 (1969); Lange v. Town of Woodway, 79 Wash.2d 45, 483 P.2d 116 (1971); City of DeSoto v. Centurion Homes, Inc., 1 Kan. App. 2d 634, 573 P.2d 1081 (1977).\n\"6. The Court finds that as a matter of law, the Plaintiff has failed to pursue an adequate administrative remedy namely the Plaintiff's failure to apply to the City for the issuance of a Special Use Permit to allow the construction of the storage and maintenance building. Here the Plaintiff was advised that a building permit for their sizable storage and maintenance building would not be issued unless they obtained a Special Use Permit. Plaintiffs refused to follow this avenue as stated in the ordinance and have thus failed to exhaust the administrative remedy available. Although the Plaintiff did go before the City's Board of Zoning Appeals, this was not the proper administrative remedy to pursue. Plaintiffs cannot avoid the exhaustion doctrine by picking and choosing what avenue to take. They must first pursue the proper and all other administrative remedies *227 available before asserting their claims before this Court. It is the purpose of this judicial doctrine requiring exhaustion of administrative remedies before seeking judicial relief to give local authorities opportunities to correct any error in zoning classification or to remedy any unreasonable hardships imposed thereby before the aggrieved party may enter into litigation. The Court specifically finds that had the Plaintiff applied for a Special Use Permit this procedure could have alleviated any harmful consequence of the ordinance and that said administrative remedy must be sought before the Plaintiff will be heard to say that he has been injuriously affected.\n\"7. The Court finds that city zoning laws are not pre-empted by state laws on cemeteries. The fact that the property in question was dedicated for use as a cemetery prior to its annexation by the Defendant and the Defendant's subsequent enactment of zoning ordinances, the application of which makes the Plaintiff's cemetery a non-conforming use, does not deprive the City of Overland Park of its power to restrict or regulate the continued use of the property for cemetery purposes. The state laws controlling cemeteries do not interfere with or prohibit the enactment and enforcement of zoning and land use laws for properties, including cemeteries. The general rule of Kansas is that state and local laws may co-exist provided that a city cannot remove restrictions or enact laws which are less restrictive where the state legislature has currently pre-empted that area of law. Generally, a city may always be at liberty to enact more restrictive laws, regulations, and controls. There is clearly no statute on the books in Kansas which has a legislative intent to prohibit local governments from placing zoning and land use controls over cemeteries and their surrounding property. The Kansas laws regulating cemeteries are generally designed to prohibit consumer fraud, to guarantee that cemetery plots are treated as real estate, to assure that cemeteries, because of their perpetual nature, will not become nuisances or eyesores, and to provide a clear chain of title and control for cemeteries and their upkeep. Municipal zoning laws are enacted for the protection of the health, safety and general welfare of the community. There is no persuasive authority, case precedent, statute or expression of legislative intent that the protection of the public health, safety and general welfare provided by municipal zoning regulations be abrogated where cemeteries are concerned. If the Plaintiff's argument was carried to its logical conclusion, municipal authorities would be without power to regulate building on cemetery property, leaving cemetery owners theoretically free to build whatever size, shape or type of building they deem necessary for the continued operation of the cemetery without regard to the effects its actions may have on the public in general and/or the surrounding property owners. The Court notes that Exhibit \"K\" attached to the stipulation of facts, clearly depicts the close proximity in which Plaintiff's building will be located in relation to land which is currently being developed for single family residential dwellings. This close proximity of residential lots points to the importance of the City's ability to regulate land use in the interests of protecting the health, safety and general welfare of its citizens. See Holy Sepulchre Cemetery v. Town of Greece, [191 Misc. 241,] 79 N.Y.S.2d 683 (1947); Leavenworth Club Owners Assn. v. Atchison, 208 Kan. 318, 321, 492 P.2d 183 (1971); Kansas City v. Henre, 96 Kan. 794, 153 P. 548; Thoman v. Farmers & *228 Bankers Life Ins. Co., 155 Kan. 806, 809, 130 P.2d 551 (1942), as cited in Taylor v. Dept. of Health & Environment, 230 Kan. 283, 284, 634 P.2d 1075 (1981).\"\nWe concur with the trial court. State statutes controlling the establishment and maintenance of cemeteries do not preempt the field of cemetery control to the extent that a city may not adopt zoning ordinances affecting preexisting cemeteries.\nIn State ex rel. Smith v. Miller, 239 Kan. 187, 718 P.2d 1298 (1986), this court had occasion to again examine the rule that a person aggrieved by an administrative decision must exhaust all available administrative remedies before resorting to the courts for relief. We see no need to repeat here what has been so recently said in that opinion.\nWe hold that the City of Overland Park had the authority to classify for zoning purposes the Memorial Gardens property as R-1 (single family residential) and to require appellant to seek a special use permit for its proposed building construction. We also hold that as appellant did not exhaust its administrative remedies, the filing of this lawsuit was precluded. In view of the decision reached herein, the remaining issues need not be considered.\nThe judgment is affirmed.\n",
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| Supreme Court of Kansas | Supreme Court of Kansas | S | Kansas, KS |
462,322 | Engel, Kennedy, Kru-Pansky | 1985-12-19 | false | claude-e-murphy-and-jean-virginia-murphy-plaintiffs-appellants-v | null | Claude E. MURPHY and Jean Virginia Murphy, Plaintiffs-Appellants, v. OWENS-ILLINOIS, INC., Defendant-Appellee | 19 Fed. R. Evid. Serv. 821, prod.liab.rep.(cch)p 10,906 Claude E. Murphy and Jean Virginia Murphy v. Owens-Illinois, Inc. | Sherman Ames, III (Lead), Gillenwater, Nichol and Ames, Knoxville, Tenn., Paul T. Gillenwater (argued), H. Douglas Nichol, for plaintiffs-appellants., Louis C. Woolf (argued), J. Randolph Bibb, Jr. (Lead), Robert G. McDowell, Baker, Worthington, Crossley, Stansberry and Woolf, Nashville, Tenn., for defendant-ap-pellee. | null | null | null | null | null | null | null | Argued Oct. 30, 1985. | null | null | 24 | Published | null | <parties id="b434-13">
Claude E. MURPHY and Jean Virginia Murphy, Plaintiffs-Appellants, v. OWENS-ILLINOIS, INC., Defendant-Appellee.
</parties><br><docketnumber id="b434-16">
No. 84-6021.
</docketnumber><br><court id="b434-17">
United States Court of Appeals, Sixth Circuit.
</court><br><otherdate id="b434-18">
Argued Oct. 30, 1985.
</otherdate><br><decisiondate id="b434-19">
Decided Dec. 19, 1985.
</decisiondate><br><attorneys id="b435-18">
<span citation-index="1" class="star-pagination" label="341">
*341
</span>
Sherman Ames, III (Lead), Gillenwater, Nichol and Ames, Knoxville, Tenn., Paul T. Gillenwater (argued), H. Douglas Nichol, for plaintiffs-appellants.
</attorneys><br><attorneys id="b435-19">
Louis C. Woolf (argued), J. Randolph Bibb, Jr. (Lead), Robert G. McDowell, Baker, Worthington, Crossley, Stansberry and Woolf, Nashville, Tenn., for defendant-ap-pellee.
</attorneys><br><judges id="b435-20">
Before ENGEL, KENNEDY and KRU-PANSKY, Circuit Judges.
</judges> | [
"779 F.2d 340"
]
| [
{
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"opinion_text": "779 F.2d 340\n 19 Fed. R. Evid. Serv. 821, Prod.Liab.Rep.(CCH)P 10,906Claude E. MURPHY and Jean Virginia Murphy, Plaintiffs-Appellants,v.OWENS-ILLINOIS, INC., Defendant-Appellee.\n No. 84-6021.\n United States Court of Appeals,Sixth Circuit.\n Argued Oct. 30, 1985.Decided Dec. 19, 1985.\n \n Sherman Ames, III (Lead), Gillenwater, Nichol and Ames, Knoxville, Tenn., Paul T. Gillenwater (argued), H. Douglas Nichol, for plaintiffs-appellants.\n Louis C. Woolf (argued), J. Randolph Bibb, Jr. (Lead), Robert G. McDowell, Baker, Worthington, Crossley, Stansberry and Woolf, Nashville, Tenn., for defendant-appellee.\n Before ENGEL, KENNEDY and KRUPANSKY, Circuit Judges.\n CORNELIA G. KENNEDY, Circuit Judge.\n \n \n 1\n Plaintiffs Claude and Jean Murphy appeal various rulings of the District Court in this products liability action filed against several manufacturers of asbestos-containing insulation products. Mr. Murphy allegedly contracted the disease asbestosis from exposure to the products. He sued for damages arising from his injury; his wife sued for damages for loss of services and consortium. After several defendants settled, only Owens-Illinois, Inc. remained. The jury returned a verdict in favor of the defendant and judgment was entered accordingly on August 10, 1984.\n \n \n 2\n Plaintiffs raise three issues on appeal. First, they claim that the District Court erred in refusing to grant their motion for a directed verdict at the conclusion of all proof. Second, they charge error in the court's exclusion from evidence of a deposition taken in a previous asbestosis case. Finally, they challenge the jury instructions in one instance. Having considered these claims, the Court affirms the judgment of the District Court.\n \n \n 3\n * Plaintiffs contend that the uncontroverted evidence at trial established that Mr. Murphy was exposed to asbestos dust from an asbestos-containing product (Kaylo) manufactured by Owens-Illinois, that this exposure was a substantial factor contributing to his asbestosis, and that Owens-Illinois never warned or otherwise instructed Mr. Murphy as to the hazards associated with the use of its product. Plaintiffs argue that this evidence entitled them to a directed verdict under the law of strict liability in Tennessee, as embodied in Restatement (Second) of Torts Sec. 402A (1977).1 Specifically, plaintiffs contend that any evidence as to the \"state of the art\" at the time of the manufacture of the product was irrelevant and inappropriate.\n \n \n 4\n Evidence of the \"state of scientific and technological knowledge available to the manufacturer or seller at the time the product was placed on the market\" is now allowed in Tennessee by reason of the Tennessee Products Liability Act of 1978, Tenn.Code Ann. Sec. 29-28-101, et seq. Plaintiffs note, however, that the relevant section, Sec. 105, was enacted after the instant case was filed. The central question, therefore, is whether the statute changed the law of Tennessee.\n \n \n 5\n Evidence of the \"state of the art\" was clearly allowed before the statute was enacted. In Ellithorpe v. Ford Motor Co., 503 S.W.2d 516 (Tenn.1973), the Tennessee Supreme Court stated that the manufacturer of an automobile was under a duty to build a product \" 'as safe as is reasonably possible under the present state of the art.' \" 503 S.W.2d at 519, quoting Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir.1968). One law review commentator has noted that the statute did not change the law in Tennessee. Note, The Tennessee Products Liability Act, 9 Mem.St.U.L.Rev. 105, 126 (1978). See also Abbott v. American Honda Motor Co., 682 S.W.2d 206, 211 (Tenn.App.1984) (upholding jury instruction on the state of the art: \"The language used by the trial judge closely followed that of the statute and was in conformity with our case law. See Ellithorpe, supra, at 519.\")\n \n \n 6\n In a consideration of the \"state of the art,\" available scientific and technological knowledge, customary practice and industry standards are all relevant. The evidence elicited at trial presented a jury question as to whether the Owens-Illinois product was \"defective\" given the available knowledge at the time, custom, and industry standards. Specifically, the testimony of defendant's witness Dr. H. Corwin Hinshaw posited that during the time Mr. Murphy was allegedly exposed to asbestos dust, the medical community understood that five mppcf (million particles per cubic foot) was a safe level of exposure for insulation installers. Plaintiff's own expert witness confirmed this testimony.\n \n \n 7\n Furthermore, the evidence presented a jury question as to whether or not plaintiff's exposure to Owens-Illinois' product, Kaylo, was a substantial factor in causing his asbestosis. The District Court was correct in denying plaintiffs' motion for a directed verdict given the factual questions presented.\n \n II\n \n 8\n Plaintiffs argue that if \"state of the art\" evidence is admissible and proper, the deposition of Dr. Kenneth Wallace Smith, deceased, former Medical Director of the Johns-Manville Corp., was improperly excluded from jury consideration. This deposition was taken January 13, 1976, in the case of DeRocco v. Forty-Eight Insulation, Inc., No. 2880 (Pa.Ct.Com.Pleas 1974). The Smith deposition has spawned a small body of case law all its own.2 Smith, as former Medical Director of the leading manufacturer of asbestos-containing products, was in a unique position to discuss the scope of knowledge available to the industry during his twenty-year tenure at Johns-Manville.3\n \n \n 9\n Plaintiffs contend that as Smith is no longer available, under Fed.R.Evid. 804(b)(1) his testimony in the DeRocco case should have been admitted at trial as tending to prove that the knowledge available to Owens-Illinois in the late 1940's and early 1950's placed upon it a duty to warn of the hazards associated with its product. The rule provides:\n \n \n 10\n (b) HEARSAY EXCEPTIONS. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:\n \n \n 11\n (1) FORMER TESTIMONY. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with the law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.\n \n Fed.R.Evid. 804(b)(1)\n \n 12\n Owens-Illinois was not a party in the DeRocco case. In that event, Rule 804(b)(1) requires that Owens-Illinois (1) have had a predecessor in interest at the former proceeding who (2) had an opportunity and similar motive to develop the testimony by cross-examination. This Court has, in effect, collapsed the two criteria into one test in Clay, supra n. 2. The Court in Clay adopted the position taken by the Third Circuit in Lloyd v. American Export Lines, Inc., 580 F.2d 1179 (3d Cir.), cert. denied, 439 U.S. 969, 99 S.Ct. 461, 58 L.Ed.2d 428 (1978). That court held that a \"previous party having like motive to develop the testimony about the same material facts is, in the final analysis, a predecessor in interest to the present party.\" 580 F.2d at 1187. The Clay Court went on to hold that the Smith deposition should have been admitted in that case, even though defendant Raybestos had not been present in DeRocco. The Court stated that \"[o]ur examination of the record submitted in this case satisfies us that defendants in the DeRocco case had a similar motive in confronting Dr. Smith's testimony, both in terms of appropriate objections and searching cross-examination, to that which Raybestos has in the current litigation.\" 722 F.2d at 1295.\n \n \n 13\n Defendant Owens-Illinois argues, however, that indeed there was no one present at the Smith deposition with a similar motive to its own to develop the testimony. It bases its position on the fact that Owens-Illinois ceased to manufacture or sell the asbestos-containing product at issue in 1958.4 Counsel for defendant noted during argument on the motion to admit the deposition that\n \n \n 14\n \"Johns-Manville and Raybestos-Manhattan can't afford to prove the same State of the Art that Owens-Illinois proves in the 1940s and 1950s because they would slit their throat when they dramatize the difference between that State of the Art and the State of the Art in the 1960s and 1970s when they continued to manufacture asbestos insulation products.\"\n \n \n 15\n The District Court ruled that the cross-examiners in DeRocco had a dissimilar motive from Owens-Illinois' and excluded the deposition. Cognizant of this Court's decision in Clay, it distinguished it on that ground. We hold that the District Court did not abuse its discretion in so ruling on the 804(b)(1) exception.\n \n \n 16\n Similarly, we hold that the District Court did not abuse its discretion in ruling that the deposition was more prejudicial than probative. Fed.R.Evid. 403. As indicated above, Smith testified as to the knowledge available in the industry through 1966, when he left Johns-Manville. He also testified as to specific recommendations he made to management at Johns-Manville, based on his understanding of the hazards of asbestos. Portions of his testimony, those dealing with industry knowledge after 1958 and those dealing with his own suggestions about how Johns-Manville should respond to asbestosis hazards, would not have been probative as to the knowledge available generally5 in the industry before 1958. The underlying factual basis for Smith's conclusions was available to the industry, and he indicated in his testimony that he reported certain of his findings outside his own corporation. Thus, portions of the deposition are probative of the state of the art at that time. The difficulty is that portions of the deposition testimony, particularly Johns-Manville's refusal to heed his advice, are highly prejudicial as well. Counsel for plaintiffs stated at argument that punitive damages have been assessed against Johns-Manville based largely on Smith's deposition. Viewing the document as a whole, as we must, we conclude that its exclusion on the basis of Rule 403 did not constitute error.6\n \n III\n \n 17\n The final issue before the Court is whether the District Court erred in its instructions to the jury in one instance. The judge charged the jury as follows:\n \n \n 18\n There are some products which, in the present state of human knowledge, are quite incapable of being made safe for their intended use. Such a product, properly prepared, and accompanied by proper directions and warnings, is not defective, nor is it unreasonably dangerous. So long as the products are properly prepared and marketed, and proper warning is given where the situation calls for it, the seller or manufacturer will not be held to strict liability for unfortunate consequences attending their use merely because he has undertaken to supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk.\n \n \n 19\n Dynamite would fall into that category, ladies and gentlemen.\n \n \n 20\n If you find that asbestos products were useful and desirable and yet unavoidably unsafe, then if you also find a proper warning of their hazards was given, they would no longer be unreasonably dangerous.\n \n \n 21\n Plaintiffs contend that although this may be an accurate statement of the law, the instruction was inappropriate in this case, where it was undisputed that the defendant never placed any warnings on any of its asbestos-containing products. Plaintiffs argue that the instruction misled the jury by suggesting that the Owens-Illinois product could be found to be \"unavoidably unsafe\" and call this prejudicial, reversible error.\n \n \n 22\n Owens-Illinois claims that plaintiffs did not properly object to the instruction at trial, that the instruction was appropriate considering the pleadings, and that even if not appropriate it did not constitute reversible error. We agree.\n \n \n 23\n Any error was harmless. First, the instruction was not an incorrect statement of the law. Plaintiffs recognize this; they contend that error lay in allowing the jury to \"speculate\" on the unavoidably unsafe products doctrine, as no evidence supported this doctrine's application. This Court has held that giving a correct but inapplicable jury instruction is not improper per se. Cutter v. Cincinnati Union Terminal Co., 361 F.2d 637 (6th Cir.1966). Plaintiffs cite a Third Circuit case, Paluch v. Erie Lackawanna R.R. Co., 387 F.2d 996 (3d Cir.1968), where the court held that an instruction as to contributory negligence without any evidence supporting that charge in the record was fundamental error even in the absence of an objection by counsel. Paluch presents a very different situation, however, because in that case the jury could have diminished the recovery simply upon the suggestion that plaintiff might have been negligent as well. In the instant case, the jury would have had to find a proper warning to decide that the asbestos-containing product was unavoidably unsafe.\n \n \n 24\n Furthermore, under Tennessee law the instruction was not erroneous.7 In a Tennessee asbestosis case, Daniels v. Combustion Engineering, Inc., 583 S.W.2d 768 (Tenn.Ct.App.1978, cert. denied, Tenn.1979), the state court of appeals faced precisely the same issue in that the defendants did not assert that they had warned of the hazards of asbestosis, but an instruction on unavoidably unsafe products was given generally nevertheless. The court held that as the plaintiff in that case was proceeding under the theory embodied in section 402A, the defense of unavoidably unsafe products had been placed in issue since comment k of that section provided for it. The appeals court considered it the \"duty of the Court to charge on this issue.\" 583 S.W.2d at 772. It is difficult to call the District Court's ruling in this case prejudicial error when applicable state law holds no error at all in similar circumstances.\n \n \n 25\n Finally, plaintiffs did not preserve the error for appeal. Counsel for plaintiffs did except to the instruction in the pre-charge conference, on the grounds that the instruction did not apply to this case. The judge responded that the instruction included material the jury could consider. No further discussion ensued, and, after the charge, counsel for plaintiffs did not attempt to object or to incorporate the pre-charge exception by reference when the lawyers were called to the bench, although he did object to an unrelated part of the instructions. Rule 51 of the Federal Rules of Civil Procedure provides in pertinent part:No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of the objection.\n \n \n 26\n The objections should be made not only before the jury retires, but after the charge is given. Dunn v. St. Louis-San Francisco Ry. Co., 370 F.2d 681, 684 (10th Cir.1966); but see Bouley v. Continental Casualty Co., 454 F.2d 85 (1st Cir.1972) (objection made immediately before the charge was valid \"under all the circumstances,\" id. at 88).\n \n \n 27\n This Court has recognized a \"narrow\" and \"rarely applied\" exception to the requirements of Rule 51: where the objection would have been a mere \"formality\" under the circumstances, or where the error was so \"obvious and prejudicial\" as to require action by the appellate court. Batesole v. Stratford, 505 F.2d 804, 808 (6th Cir.1974). We find that this case does not fall into the exception to Rule 51 on either rationale. First, it cannot be said that requiring counsel for plaintiffs to object after the judge gave the charge in its entirety is a mere \"formality.\" The record reveals that even in the pre-charge conference, counsel for plaintiffs merely stated, \"[W]e had a problem with page 16, the whole page.\" He then briefly stated his rationale. He never used the word \"object\" or \"objection.\" Further, plaintiffs raised many questions about the proposed instructions at the conference. This exception very likely was simply one among many from the judge's perspective. Properly objecting, far from being a formality, \"would have fulfilled the basic purpose of Rule 51 by alerting the trial judge to a potential problem area, and would have aided him in his effort to clearly and correctly instruct the jury.\" 505 F.2d at 810. Secondly, as detailed above, the error, if there was one, was not so \"obvious and prejudicial\" as to warrant action by this Court.\n \n \n 28\n Based on the foregoing, the judgment of the District Court is affirmed.\n \n \n \n 1\n Strict tort liability as formulated by Sec. 402A was adopted by Tennessee in Olney v. Beaman Bottling Co., 220 Tenn. 459, 418 S.W.2d 430 (Tenn.1967). The Restatement provides as follows:\n Sec. 402A. Special Liability of Seller of Product for Physical Harm to User or Consumer\n (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if\n (a) the seller is engaged in the business of selling such a product, and\n (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.\n (2) The rule stated in Subsection (1) applies although\n (a) the seller has exercised all possible care in the preparation and sale of his product, and\n (b) the user or consumer had not bought the product from or entered into any contractual relation with the seller.\n \n \n 2\n See Dartez v. Fibreboard Corp., 765 F.2d 456 (5th Cir.1985); Clay v. Johns-Manville Sales Corp., 722 F.2d 1289 (6th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 3537, 82 L.Ed.2d 842 (1984); In Re Johns-Manville/Asbestosis Cases, 93 F.R.D. 853 (N.D.Ill., E.D.1982)\n \n \n 3\n Dr. Smith was employed by Johns-Manville from about 1946 to 1966. He became Medical Director in 1952\n \n \n 4\n At that date, Owens-Illinois sold its asbestos thermal insulation products division to Owens-Corning Fiberglas Co. Plaintiffs allege that since the latter manufacturer was present at the Smith deposition, the requirements of Rule 804(b)(1) are met. The reasoning of defendant, infra, as to the time frame of the industry's knowledge applies to Owens-Corning Fiberglas as well, however\n \n \n 5\n The \"state of the art\" defense in Tennessee encompasses knowledge available to the manufacturer or seller. Abbott v. American Honda Motor Co., 682 S.W.2d 206, 211 (Tenn.App.1984). There was no evidence that Dr. Smith's private advice to Johns-Manville was available to any other manufacturer\n \n \n 6\n The Court in Clay, supra, did not consider objections raised under Rule 403\n \n \n 7\n Tennessee law governs the substance of the jury charge under Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)\n \n \n ",
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| Sixth Circuit | Court of Appeals for the Sixth Circuit | F | USA, Federal |
248,769 | Bastian, Miller, Per Curiam, Washington, Wilbur | 1959-10-19 | false | jack-ruffin-v-united-states | null | Jack Ruffin v. United States | Jack RUFFIN, Appellant, v. UNITED STATES of America, Appellee | Mr. Frederic P. Lee, Washington, D. C., with whom Mr. Floyd F. Toomey, Washington, D. C. (both appointed by this court) was on the brief, for appellant., Mr. Nathan J. Paulson, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., and Carl W. Belcher, Asst. U. S. Atty., were on the brief, for ap-pellee. | null | null | null | null | null | null | null | Argued May 19, 1959., Certiorari Denied Oct. 19, 1959. | See 80 S.Ct. 129. | null | 1 | Published | null | <parties data-order="0" data-type="parties" id="b590-23">
Jack RUFFIN, Appellant, v. UNITED STATES of America, Appellee.
</parties><br><docketnumber data-order="1" data-type="docketnumber" id="b590-25">
No. 14842.
</docketnumber><br><court data-order="2" data-type="court" id="b590-26">
United States Court of Appeals District of Columbia Circuit.
</court><br><otherdate data-order="3" data-type="otherdate" id="b590-27">
Argued May 19, 1959.
</otherdate><br><decisiondate data-order="4" data-type="decisiondate" id="b590-28">
Decided June 11, 1959.
</decisiondate><br><otherdate data-order="5" data-type="otherdate" id="b590-29">
Certiorari Denied Oct. 19, 1959.
</otherdate><br><seealso data-order="6" data-type="seealso" id="b590-30">
See 80 S.Ct. 129.
</seealso><br><attorneys data-order="7" data-type="attorneys" id="b591-4">
<span citation-index="1" class="star-pagination" label="545">
*545
</span>
Mr. Frederic P. Lee, Washington, D. C., with whom Mr. Floyd F. Toomey, Washington, D. C. (both appointed by this court) was on the brief, for appellant.
</attorneys><br><attorneys data-order="8" data-type="attorneys" id="b591-5">
Mr. Nathan J. Paulson, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., and Carl W. Belcher, Asst. U. S. Atty., were on the brief, for ap-pellee.
</attorneys><br><p data-order="9" data-type="judges" id="b591-6">
Before Wilbur K. Miller, Washington and Bastían, Circuit Judges.
</p> | [
"269 F.2d 544"
]
| [
{
"author_str": "Per Curiam",
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"opinion_text": "269 F.2d 544\n Jack RUFFIN, Appellant,v.UNITED STATES of America, Appellee.\n No. 14842.\n United States Court of Appeals District of Columbia Circuit.\n Argued May 19, 1959.\n Decided June 11, 1959.\n Certiorari Denied October 19, 1959.\n \n See 80 S. Ct. 129.\n Mr. Frederic P. Lee, Washington, D. C., with whom Mr. Floyd F. Toomey, Washington, D. C. (both appointed by this court) was on the brief, for appellant.\n Mr. Nathan J. Paulson, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., and Carl W. Belcher, Asst. U. S. Atty., were on the brief, for appellee.\n Before WILBUR K. MILLER, WASHINGTON and BASTIAN, Circuit Judges.\n PER CURIAM.\n \n \n 1\n This is an appeal from a conviction of manslaughter [§ 22-2405, D.C.Code (1951)] and assault with a dangerous weapon [§ 22-502, D.C.Code (1951)]. Appellant urges three errors on this appeal.\n \n \n 2\n First, appellant urges that the admission of a statement made by him at police headquarters one hour after arrest, in the presence of police officers and two accusers, was prejudicial in that the sole purpose of the confrontation was to elicit a confession rather than for the purpose of identification. The statement involved was not introduced in the government's case in chief but was brought out in rebuttal after appellant's attorney, on cross examination of a prosecution witness, delved into the chain of events occurring at police headquarters on the evening of appellant's arrest. However, since no objection was made to the introduction of this evidence at the trial, we are not required here to rule on its admissibility.1 Nor, after the examination of the entire record, do we feel it incumbent upon us to reach that question under our discretionary authority.2\n \n \n 3\n Secondly, appellant urges that an instruction on self-defense was improper, claiming that self-defense was not an issue in the case. An examination of the record clearly shows that such a defense was in fact raised. In the course of the trial, counsel for appellant requested a bench conference, at which time he stated:\n \n \n 4\n \"The defense is self-defense, your Honor * * *.\n \n \n 5\n * * * * * *\n \n \n 6\n \"I don't think this particular line of questioning is beyond the scope, if your Honor please. I will ask you to put the question directly if your Honor feels it would expedite the matter. I feel it is entirely admissible because self-defense is a proper defense, and we can show the reputation for violence, disorderly conduct.\"\n \n \n 7\n Further, no objection to the instruction was raised at trial. In material part, Fed.R.Crim.P. 30, 18 U.S.C.A., reads as follows:\n \n \n 8\n \"No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection * * *.\"\n \n \n 9\n Since appellant failed to raise objection at the trial, he is precluded from so doing now; and we find it unnecessary to reach this question under our discretionary authority.3\n \n \n 10\n Finally, appellant urges that the trial court erred in failing to give a requested instruction involving equal hypotheses of guilt and of innocence. Prior to the charge to the jury, the court had refused to give this instruction, stating that it would \"cover the idea,\" which in effect was done in the court's instruction on burden of proof and reasonable doubt. Under the circumstances of this case, the requested instruction would have led to confusion in the minds of the jurors, and its denial was therefore proper.\n \n The conviction is\n \n 11\n Affirmed.\n \n \n \n Notes:\n \n \n 1\n Gilliam v. United States, 1958, 103 U.S. App.D.C. 181, 257 F.2d 185; certiorari denied, 1959, 359 U.S. 947, 79 S. Ct. 728, 3 L. Ed. 2d 680; Lawson v. United States, 1957, 101 U.S.App.D.C. 332, 248 F.2d 654, certiorari denied, 1958, 355 U.S. 963, 78 S. Ct. 552, 2 L. Ed. 2d 537\n \n \n 2\n Fed.R.Crim.P. 52(b): \"Plain Error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.\"\n \n \n 3\n Ibid\n \n \n ",
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| D.C. Circuit | Court of Appeals for the D.C. Circuit | F | USA, Federal |
2,593,829 | Sanders | 2001-07-19 | false | state-v-marshall | Marshall | State v. Marshall | null | null | null | null | null | null | null | null | null | null | null | null | 23 | Published | null | null | [
"27 P.3d 192"
]
| [
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"opinion_text": "\n27 P.3d 192 (2001)\n144 Wash.2d 266\nSTATE of Washington, Respondent,\nv.\nHenry Lewis MARSHALL, Petitioner.\nNo. 66693-8.\nSupreme Court of Washington, En Banc.\nArgued March 27, 2001.\nDecided July 19, 2001.\n*193 Nielsen, Broman & Assoc., Eric J. Nielsen and Eric Broman, Seattle, for petitioner.\nGerald Horne, Pierce County Prosecutor, Barbara L. Corey-Boulet, Deputy, Kathleen Proctor, Deputy, Tacoma, for respondent.\nSANDERS, J.\nHenry Lewis Marshall pleaded guilty to aggravated first degree murder and was sentenced to death. In addition to our mandatory proportionality review Marshall now raises numerous issues relating to his plea and sentencing. However, because the trial court denied Marshall's motion to withdraw his guilty plea based on asserted lack of competence while failing to convene a required competency hearing pursuant to chapter 10.77 RCW, we vacate the guilty plea, reverse the conviction, and remand.\n\nI\n\nFACTS\nA. Background\nOn the morning of June 18, 1994, the 38th Street Pub in Tacoma was robbed. During the course of the robbery the perpetrator shot and killed Dennis Griswold, the owner of the business. Marshall was charged by the Pierce County prosecutor on June 27, 1994, with the aggravated first degree murder of Dennis Griswold in violation of RCW 9A.32.030(1)(a) and RCW 10.95.020(9). One aggravating factor was alleged: that Marshall killed Griswold in the course, furtherance, or flight from the crime of first or second degree robbery. Marshall pleaded not guilty at his initial arraignment on June 30, 1994.\n1. Change of Plea to Guilty\nOn November 2, 1994, Marshall's appointed counsel requested a hearing to allow Marshall *194 to change his plea to guilty, contrary to the advice of defense counsel. Both of his attorneys attempted to persuade Marshall against changing his plea, vainly arguing he should at least wait until the prosecutor decided whether to seek the death penalty. They also consulted with three other individuals to determine whether Marshall was mentally competent to enter such a plea. Chaplain Hack Yadon spent considerable time with Marshall during the week prior to the plea and believed he was rational. Dave Stewart, the jail's mental health professional, also saw Marshall and thought he was rational. Upon defense counsel's request Dr. Brett Trowbridge, a psychologist and licensed attorney, evaluated Marshall to determine whether he was competent to enter a plea. After a two hour interview the night before the plea Dr. Trowbridge also opined Marshall was competent, rational, and understood the consequences of his actions. None of these individuals was called to testify at the change of plea hearing, however.\nAt the hearing the trial court engaged in a summary colloquy with Marshall, asking about his plea, his competency, the nature of his offense, the potential consequences of his decision, and whether he had discussed the issue with his attorneys. Most of the questions could be answered yes or no. Concluding he was competent, the court then allowed Marshall to read a prepared statement in which he apologized to Griswold's family and friends and to the court, asked for their forgiveness, and indicated his desire to plead guilty against the advice of counsel. The court accepted Marshall's plea.\nTwelve days after changing his plea the prosecutor notified Marshall of his intent to seek the death penalty.\nIn January 1995 Marshall's appointed counsel moved to withdraw. New attorneys were then appointed.\n2. Motion to Withdraw Guilty Plea\nIn 1997 Marshall moved to withdraw his guilty plea claiming he was not mentally competent at the time he entered the plea to have knowingly, intelligently, and voluntarily waived his right to a trial. Without convening a statutory competency hearing, the court heard three experts in support of the defense motion as well as the testimony of defense consultant Trowbridge over defense objection.[1]\nDr. Barbara Jessen, a neurologist, testified Marshall's MRI (magnetic resonance imaging) scan on January 22, 1996, showed an unusual amount of brain abnormality for somebody who isn't \"lying in a hospital.\" Report of Proceedings (RP) at 351. Of the hundreds of MRIs she had reviewed, she testified she had never seen a person present himself as well as Marshall with his level of brain atrophy. Dr. Jessen testified Marshall's ability to respond to stimulation and make decisions placed him in the fourth percentile of the population and \"he is way out in the abnormal range.\" RP at 357. She opined Marshall's brain abnormalities were present in 1994, before the change of plea was allowed.\nDr. James Maxwell, a neuropsychologist, administered intelligence tests on which Marshall scored in the average-to-low-average range. In another I.Q. test, the Halstead Reitan, Marshall scored in the lowest first percentile. Dr. Maxwell met with Marshall three different times and noticed changes in his behavior corresponding to changes in his medication. He testified Marshall had significant brain damage leading to long-standing brain dysfunction. Dr. Maxwell testified Marshall was not competent to enter a plea in November 1994 because Marshall did not understand he would go to prison as a consequence of pleading guilty. Furthermore, Dr. Maxwell testified it would not be possible to determine whether a person could know the consequences of his or her actions based only on the two tests administered by Dr. Trowbridge.\nDr. Dorothy Lewis, a psychiatrist, interviewed Marshall for five hours and reviewed numerous medical records to reach her conclusion that Marshall suffered from bipolar mood disorder or manic depressive disorder. She investigated whether Marshall's bipolar *195 disorder had a genetic component and testified both his father and mother were emotionally unstable people who physically and sexually abused him. Additionally, she noted Marshall's sister, brother, and half-sister had all been suicidal and exhibited signs of bipolar disorder. Dr. Lewis testified blood flow to different parts of Marshall's brain was restricted. This, in her opinion, adversely affected his ability to think, reason, and control himself.\nDr. Lewis also testified Marshall had been diagnosed as a paranoid schizophrenic by the Pierce County jail health clinic seven weeks after the offense and a few weeks before he entered his plea. Over the next several weeks he suffered from a psychotic illness with paranoia accompanied by auditory hallucinations, which was intermittently treated by several medications. However, Marshall had gone off this medication by the time of his plea. Dr. Lewis summarized her opinion that Marshall could not freely and voluntarily waive his constitutional rights because he was delusional and suffering from a psychotic depression at that time. She was also critical of Dr. Trowbridge's evaluation of Marshall's competency, opining he failed to recognize Marshall had been off his antidepressant medication for several weeks, and indicating Marshall's plea was \"a manifestation of his increasingly depressed and delusional state of mind.\" RP at 664.\nIn response to this expert testimony presented to show Marshall's lack of competency, the state called Dr. Trowbridge. Dr. Trowbridge testified he evaluated Marshall at the request of defense counsel for two hours on the day before he entered his guilty plea. Marshall scored in the dull-normal range of an I.Q. test performed by Trowbridgeplacing him in the lowest 15 percent of the population. However he scored \"very well\" on another brain-functioning test which placed him in the 86th percentile. Dr. Trowbridge was dismissive of the disparity between the two tests saying, \"it is something to think about,\" but attributed the difference to the correlation between level of attained education and higher I.Q. scores. RP at 495-96. Although Dr. Trowbridge diagnosed Marshall as \"mildly depressed,\" he noted it would be unusual for anyone in Marshall's position not to be somewhat depressed and he could not detect any major mental illness. Dr. Trowbridge, an attorney, testified he was aware of the premeditated intent element of aggravated murder. Marshall told him the shooting was accidental and \"I did not intend to kill him.\" RP at 514. Dr. Trowbridge said the fact Marshall wanted to plead guilty to a premeditated intentional murder raised a question in his mind about Marshall's competency so he \"made a note of it.\" RP at 516. Nonetheless, based upon his examination, Dr. Trowbridge concluded Marshall was competent to enter the guilty plea.\nDr. Trowbridge said he would have liked more time to evaluate Marshall and perform additional tests but the plea hearing was the next day so he was unable to review any of Marshall's records. He admitted he did not know Marshall had been diagnosed by the health clinic as a paranoid schizophrenic or that he had been treated with both antipsychotic and antidepressant drugs less than three months before the plea. Dr. Trowbridge also acknowledged he did not know Marshall was suicidal at the time he entered his plea, but said he would have talked with Marshall about it had he known. Nor did he know Marshall suffered from brain atrophy, though he said it would have been \"interesting\" to know at the time of his evaluation. Moreover, Dr. Trowbridge did not review Marshall's letter to the court and the prosecutor in which he confessed his crime, which he sent two days before the evaluation. Dr. Trowbridge agreed that if the letter suggested delusional thinking, as Dr. Lewis testified, it would have been important to his evaluation. Dr. Trowbridge admitted the letter did not make sense and said he would have questioned Marshall about it had he seen it.\nThe court denied Marshall's motion to withdraw his guilty plea despite finding \"[i]t is clear that [Marshall] has impairment. It is clear that there is brain atrophy.\" RP at 701. The court also based its decision on its interaction with Marshall at the plea hearing saying, \"I recognize that I'm not a mental health professional, and I recognize that I am drawing conclusions based upon [Marshall's] demeanor, the manner of his responses, and *196 some of the other things that were going on in the courtroom at that time, but I think I'm entitled to do that and I think that I am probably just as competent as anyone to draw such conclusions.\" RP at 708.\nB. Penalty Phase Proceeding\nDuring the penalty phase Dr. James Maxwell, who testified at the hearing on the motion to withdraw guilty plea, testified Marshall scored in the impaired range on a number of tests he had administered. The tests indicated Marshall could not plan, had little judgment, and Marshall's ability to reason, solve problems, and make sense of the world around him was impaired. Marshall acted impulsively and Dr. Maxwell believed he suffered from neurocognitive dysfunction caused by serious brain damage. Maxwell testified Marshall was as impaired as a person who is mentally retarded.\nDr. Barbara Jessen, who had testified at the hearing to withdraw guilty plea, said Marshall's MRI revealed the decision-making area of his brain had shrunk significantly and was considerably smaller than a normal brain. The MRI also showed the folds in Marshall's brain were more pronounced and he had brain atrophy. The EEG (electroencephalogram) showed Marshall's brain electrical activity at a much slower frequency than that of a normal person, and the SPECT (Single Photon Emission Computed Tomography) Scan showed abnormal blood flow to the brain. Clear evidence of brain damage existed according to Jessen. She also testified only five out of one hundred people would be worse at understanding and comprehending things, only seven out of one hundred people have a worse memory, and only five out of one hundred are worse when it comes to decision making. Jessen believed head trauma was the likely cause of Marshall's brain damage.\nMarshall's uncle, Roger Marshall, said he witnessed Marshall's father physically abusing him, including being knocked out with a punch when he was 13 years old and being beaten with a bamboo fishing pole. Marshall's father bred wolf-dog hybrids. He intentionally mistreated the animals so they would snap at people and fed them gunpowder to eat away their brains to make them even meaner. Roger Marshall said Marshall's father told him if the kids ever \"gave him any shit,\" he would throw them in the pen with the dogs. RP at 3274. A few days later, Roger Marshall noticed Marshall had bite marks on the back of his legs, which Marshall said he sustained when his father threw him in the pen with the wolf-dogs. Marshall's father then beat him for allowing the dogs to bite him.\nMarshall's brother, Richard Marshall, testified Marshall was severely physically and mentally abused growing up. They were beaten by their mother with electrical cords, hoses, and whatever else she could find. Marshall was apparently always beaten the worst even when his siblings got into trouble because he was the oldest and was not allowed to let his brothers and sisters get into trouble. Richard Marshall said their father, in addition to physically and mentally abusing them, sexually abused them by forcing them to have oral and anal sex with him at gunpoint. Their father would hit them unexpectedly to teach them to be \"on guard,\" and he beat them consistently with a cribbage board. He would also force the brothers to fight and then force the winner to fight with him. Richard Marshall saw his father beat Marshall into unconsciousness on at least one occasion. He credited Marshall with helping him escape their father when they became teenagers.\nAnother witness said the only time he met Marshall's father he saw him hit Marshall in the face with a closed fist. He said Marshall had fresh bruises and marks on his body everyday and, by the time he was a teenager, could no longer carry on a normal conversation and had no attention span. Linda Blye testified Marshall lived with her family and had a very special relationship with her three children and was very good to them. She said he was never able to keep a job and became frustrated with his inability to function properly.\nThe jury did not find sufficient mitigating circumstances to warrant leniency. Marshall was sentenced to death.\n*197 C. Post Sentencing ProceedingsDodd Hearing\nDuring the pendency of our mandatory review Marshall moved to waive his appeal and then withdrew and reinstated that request on three different occasions. In response to the third such request the state asked for and received a hearing on remand to determine whether Marshall had knowingly and intelligently waived his right to appeal. See State v. Dodd, 120 Wash.2d 1, 838 P.2d 86 (1992).\nDuring the Dodd hearing the trial court relied on evaluations from defense expert Dr. Dorothy Lewis and state's expert Dr. G. Christian Harris. Both experts submitted written evaluations concluding Marshall had organic brain disease and was not competent to waive his appellate rights. In addition to the reports, the state agreed to include in the record of the Dodd hearing two exhibits from the original hearing to withdraw guilty plea: MRI scans of (1) a normal brain, and (2) Marshall's abnormal brain.\nDr. Harris, the state's expert, reviewed Marshall's records (most of which were compiled prior to the hearing to withdraw guilty plea) and found \"a history of psychotic illness with suicidal ideation, past history of sexual abuse and substance abuse, violence and amnesia.\" Reply Br. of Appellant, App. B at 2. He opined, \"this man has ample evidence of organic brain disease and functional psychosis.... His ability to `know' and `understand' what he is doing is narrowed, being influenced and tainted by these organic and functional impacts on his brain and mental function.\" Id., App. B at 6. Dr. Harris also reviewed the opinion, evaluation, and methodology of the prior state's expert (Dr. Trowbridge) from the 1997 hearing to withdraw guilty plea. He criticized Trowbridge's evaluation, saying it seemed \"mutually contradictory,\" and \"would seemingly amount to ignoring Mr. Marshall's history of mental problems.\" Id., App. B at 3.\nDr. Lewis, the same defense expert who testified at Marshall's hearing to withdraw guilty plea, also concluded Marshall did not understand the choice between life and death saying, \"Just as he was not competent to plead guilty when he did (note he shortly thereafter changed his mind) so he is not now competent to waive his appeal.\" Id., App. C at 5.\nBased on these evaluations the trial court found:\nMr. Marshall suffers from an organic brain disease, brain atrophy and frontal lobe damage that affects his ability to plan ahead, conceptualize the future and make reasoned decisions and has a history of psychotic illness with suicidal ideation.\n. . . .\nMr. Marshall's organic brain functions and functional psychosis currently influence his desire to commit suicide and these organic and functional impacts on his mental function narrow and influence his competency to know and understand what he is doing.\n. . . .\nThe Defendant currently does not have the capacity to understand the choice between life and death and to knowingly and intelligently waive any and all rights to his appeal.\nCP at 1376-78.\nThus, the same trial court which initially found Marshall competent to enter a guilty plea subsequently determined he did not have the mental capacity to intelligently withdraw his appeal. The court reached this latter conclusion based on: (1) the original MRI taken before the hearing to withdraw guilty plea; (2) testimony of the state expert who heavily criticized Dr. Trowbridge's testimony[2] and who relied on records compiled prior to the hearing to withdraw guilty plea to reach his conclusion of organic brain disease; and (3) consistent testimony from the same defense expert which the trial court formerly discounted at the hearing to withdraw guilty plea. Moreover, the court concluded Marshall's organic brain disease, brain atrophy, and frontal lobe damage were *198 all long-standing impairments, there being no evidence of any intervening change in condition since the hearing to withdraw the plea.\n\nII.\n\nANALYSIS\n\"Requiring that a criminal defendant be competent has a modest aim: It seeks to ensure that he has the capacity to understand the proceedings and to assist counsel.\" Godinez v. Moran, 509 U.S. 389, 402, 113 S. Ct. 2680, 125 L. Ed. 2d 321 (1993). In a capital case there is a \"special `\"need for reliability in the determination that death is the appropriate punishment\"'.\" Johnson v. Mississippi, 486 U.S. 578, 584, 108 S. Ct. 1981, 100 L. Ed. 2d 575 (1988) (quoting Gardner v. Florida, 430 U.S. 349, 363-64, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977) (quoting Woodson v. North Carolina, 428 U.S. 280, 305, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976))). Accordingly, the record must be critically scrutinized. State v. Pirtle, 127 Wash.2d 628, 664, 904 P.2d 245 (1995).\nThe question here is whether the trial court's denial of Marshall's motion to withdraw the guilty plea was proper in light of the evidence calling Marshall's competency into question. In Washington \"[n]o incompetent person shall be tried, convicted, or sentenced for the commission of an offense so long as such incapacity continues.\" RCW 10.77.050. \"Incompetency\" exists where a person \"lacks the capacity to understand the nature of the proceedings against him or her or to assist in his or her own defense as a result of mental disease or defect.\" RCW 10.77.010(14). According to the controlling statute, where there is reason to doubt a defendant's competency the trial court must appoint experts and order a formal competency hearing:\nWhenever a defendant has pleaded not guilty by reason of insanity, or there is reason to doubt his or her competency, the court on its own motion or on the motion of any party shall either appoint or request the secretary to designate at least two qualified experts or professional persons, one of whom shall be approved by the prosecuting attorney, to examine and report upon the mental condition of the defendant.\nRCW 10.77.060(1)(a) (emphasis added). The statute mandates at least two court appointed experts must examine and prepare a report on the mental condition of the defendant, including:\n(a) A description of the nature of the examination;\n(b) A diagnosis of the mental condition of the defendant;\n(c) If the defendant suffers from a mental disease or defect, or is developmentally disabled, an opinion as to competency;\n(d) If the defendant has indicated his or her intention to rely on the defense of insanity pursuant to RCW 10.77.030, an opinion as to the defendant's sanity at the time of the act;\n(e) When directed by the court, an opinion as to the capacity of the defendant to have a particular state of mind which is an element of the offense charged;\n(f) An opinion as to whether the defendant should be evaluated by a county designated mental health professional under chapter 71.05 RCW, and an opinion as to whether the defendant is a substantial danger to other persons, or presents a substantial likelihood of committing criminal acts jeopardizing public safety or security, unless kept under further control by the court or other persons or institutions.\nRCW 10.77.060(3).\nThis competency hearing is mandatory whenever a legitimate question of competency arises:\nProcedures of the competency statute (chapter 10.77 RCW) are mandatory and not merely directory. State v. Wicklund, 96 Wash.2d 798, 805, 638 P.2d 1241 (1982). \"Thus, once there is a reason to doubt a defendant's competency, the court must follow the statute to determine his or her competency to stand trial.\" City of Seattle v. Gordon, 39 Wash.App. 437, 441, 693 P.2d 741 (1985). Failure to observe procedures adequate to protect an accused's right not to be tried while incompetent to stand trial is a denial of due process. State v. O'Neal, 23 Wash.App. 899, 901, 600 P.2d 570 (1979) *199 (citing Drope, 420 U.S. 162 [, 95 S. Ct. 896]; Pate, 383 U.S. 375 [, 86 S. Ct. 836]).\nIn re Personal Restraint of Fleming, 142 Wash.2d 853, 863, 16 P.3d 610 (2001).\nWhile we opined the trial court in Fleming did not abuse its discretion by accepting the defendant's plea where there was no apparent basis to doubt his competency, we nevertheless granted a competency hearing due to ineffective assistance, concluding counsel failed to raise the issue despite an evaluation which called the defendant's competency into question. Id. at 866, 16 P.3d 610.\nBy contrast, here there was ample evidence before the trial court to call Marshall's competency into question at the hearing on motion to withdraw guilty plea. Undisputed evidence was presented indicating Marshall suffered from organic brain damage leading to long-standing brain dysfunction, with significant atrophy in the temporal and frontal lobes. There was testimony his MRI scan showed an unusual amount of brain abnormality for somebody who isn't \"lying in a hospital.\" RP at 351. His ability to respond to stimulation and make decisions allegedly placed him in the fourth percentile of the population, \"way out in the abnormal range.\" RP at 357. Marshall scored in the average-to-low-average range on one intelligence test and in the first percentile on another. According to testimony, blood flow to different parts of Marshall's brain was restricted which allegedly affected his ability to think, reason, and control himself. Changes in his behavior were noticed corresponding to changes in his medication.\nTestimony indicated Marshall suffered from bipolar mood disorder or manic depressive disorder. He was also diagnosed as a paranoid schizophrenic by the Pierce County jail health clinic seven weeks after the offense and a few weeks before he entered his plea. Over the next several weeks he suffered from a psychotic illness with paranoia accompanied by auditory hallucinations, which was intermittently treated by several medicationswhich he was not taking at the time of his plea. A defense expert concluded Marshall could not freely and voluntarily waive his constitutional right to enter a guilty plea because he was delusional and suffering from a psychotic depression at that time.\nThe court itself accepted Marshall had serious brain damage. During the hearing on motion to withdraw guilty plea the court said, \"It is clear that he has impairment. It is clear that there is brain atrophy. But it is not clear that this has anything to do with whether or not his plea was competent or not competent.\" RP at 701. Heavily discounting the testimony of Marshall's neurologist, psychiatrist, and neuropsychologist, and choosing to rely instead on its own observations and on the observations of those who interacted with him at the time of the plea itself, the court found Marshall competent to change his plea to guilty without the benefit of a statutory competency hearing. This was error.\nWe will not reverse a trial court's order on a defense motion to withdraw guilty plea absent abuse of discretion. State v. Olmsted, 70 Wash.2d 116, 422 P.2d 312 (1966). However leave should be granted to withdraw a plea \"whenever it appears that the withdrawal is necessary to correct a manifest injustice.\" CrR 4.2(f). A manifest injustice exists where (1) the plea was not ratified by the defendant; (2) the plea was not voluntary; (3) effective counsel was denied; or (4) the plea agreement was not kept. State v. Wakefield, 130 Wash.2d 464, 925 P.2d 183 (1996). The defendant's claim that he was not competent to enter his plea is equivalent to claiming the plea was not voluntary. State v. Osborne, 102 Wash.2d 87, 98, 684 P.2d 683 (1984).\nA person is not competent at the time of trial, sentencing, or punishment if he is incapable of properly appreciating his peril and of rationally assisting in his own defense. State v. Harris, 114 Wash.2d 419, 427-28, 789 P.2d 60 (1990).[3] The competency standard *200 for standing trial is the same as the standard required for pleading guilty. Godinez, 509 U.S. at 399, 113 S. Ct. 2680.\nWhether a person is competent is a mixed question of law and fact. Drope v. Missouri, 420 U.S. 162, 174-75 n. 10, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975). In such a situation we independently apply the law to the facts. See Clarke v. Shoreline Sch. Dist., 106 Wash.2d 102, 111, 720 P.2d 793 (1986).\nHere, despite substantial evidence calling Marshall's competency into question, the trial court denied the motion to withdraw the guilty plea absent the mandatory competency hearing required by RCW 10.77.060. We hold that where a defendant moves to withdraw guilty plea with evidence the defendant was incompetent when the plea was made, the trial court must either grant the motion to withdraw guilty plea or convene a formal competency hearing required by RCW 10.77.060. See Fleming, 142 Wash.2d at 863, 16 P.3d 610. Here the court did neither.\nAccordingly, we vacate Marshall's guilty plea and remand for further proceedings consistent with this opinion.[4]\nALEXANDER, C.J., and SMITH, JOHNSON, MADSEN, IRELAND, BRIDGE, CHAMBERS, and OWENS, JJ., concur.\nNOTES\n[1] Dr. Trowbridge had been retained by previous defense counsel to render an opinion about Marshall's competency when he initially chose to change his plea.\n[2] Dr. Trowbridge is the only expert to conclude Marshall was competent at the time of his guilty plea.\n[3] In State v. Dodd, 120 Wash.2d 1, 23, 838 P.2d 86 (1992) we held the test of whether a person is competent to waive his or her right to appeal in a capital case is consistent with the Harris test for determining whether a person is competent to stand trial. Here, the same trial court found Marshall was competent to enter a plea of guilty but not competent to withdraw his appeal, under the same competency standard based on essentially the same evidence.\n[4] We decline to address any of the other issues raised by Marshall or required by our mandatory review because it is unnecessary to reach them. Nor do we comment on the proportionality of imposing the death penalty under the facts of this case.\n\n",
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| Washington Supreme Court | Washington Supreme Court | S | Washington, WA |
1,310,377 | Undercofler | 1979-07-02 | false | pearce-v-pearce | Pearce | Pearce v. Pearce | Pearce v. Pearce | J. Robert Joiner, for appellant., Mary Walton Whiteman, for appellee. | null | null | null | null | null | null | null | Submitted June 15, 1979, Rehearing denied July 18, 1979. | null | null | 14 | Published | null | <docketnumber id="b99-13">
35036.
</docketnumber><parties id="ANX">
PEARCE v. PEARCE.
</parties> | [
"257 S.E.2d 904",
"244 Ga. 69"
]
| [
{
"author_str": "Undercofler",
"per_curiam": false,
"type": "010combined",
"page_count": null,
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"author_id": 4101,
"opinion_text": "\n244 Ga. 69 (1979)\n257 S.E.2d 904\nPEARCE\nv.\nPEARCE.\n35036.\nSupreme Court of Georgia.\nSubmitted June 15, 1979.\nDecided July 2, 1979.\nRehearing Denied July 18, 1979.\nJ. Robert Joiner, for appellant.\nMary Walton Whiteman, for appellee.\nUNDERCOFLER, Presiding Justice.\nThe father and mother in this contempt action agreed at the time of their divorce \"that within one year from the date of execution of this Agreement, or at such *70 time as Wife remarries if earlier than one year, each of the children shall be given the opportunity to decide as to which of its parents the child wishes to live with [sic]. In the event one or both of the children decides that he or she wishes to live with the Husband, then in such event, the terms of this Agreement applicable to said child (i.e., visitation, child support and medical coverage) shall be inverted. Thereafter, for said child, the Wife shall have the visitation rights granted herein to the Husband, and the Wife shall have the child support and medical coverage obligations herein required of the Husband.\" (Emphasis supplied.) One year later, the children decided to live with the father. The mother began paying child support in accordance with their divorce agreement and decree. In January, she terminated her payments, and the father filed this contempt action. She appeals from the trial court's order finding her in contempt. We affirm.\nThe wife's argument that the divorce decree cannot be modified without a proper court proceeding, while true, is of no avail to her here. The original divorce decree included the possibility that her children might choose to live with their father and that she would then be obligated for their support. She is bound by its terms until it is appropriately modified by a court order. Nor is there any merit in her argument that she is not in wilful contempt because she discontinued the payments on her attorney's advice.\nJudgment affirmed. All the Justices concur.\n",
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| Supreme Court of Georgia | Supreme Court of Georgia | S | Georgia, GA |
1,059,807 | Lacy | 1999-01-08 | false | richardson-v-braxton-bailey | Braxton-Bailey | Richardson v. Braxton-Bailey | Craig Richardson v. Valerie Braxton-Bailey | Kenneth C. Hirtz (Stephen M. Buhr; Schaffer & Cabell, on briefs), for appellant., Henry L. Marsh, III (Nadine Marsh-Carter; Hill, Tucker & Marsh, on brief), for appellee. | null | null | null | null | null | null | null | null | null | null | 0 | Published | null | <parties data-order="0" data-type="parties" id="b81-3">
Craig Richardson v. Valerie Braxton-Bailey
</parties><br><docketnumber data-order="1" data-type="docketnumber" id="b81-6">
Record No. 980324
</docketnumber><decisiondate data-order="2" data-type="decisiondate" id="AK5">
January 8, 1999
</decisiondate><p data-order="3" data-type="judges" id="AqW">
Present: All the Justices
</p><br><attorneys data-order="4" data-type="attorneys" id="b82-9">
<span citation-index="1" class="star-pagination" label="62">
*62
</span>
<em>
Kenneth C. Hirtz (Stephen M. Buhr; Schaffer & Cabell,
</em>
on briefs), for appellant.
</attorneys><br><attorneys data-order="5" data-type="attorneys" id="b82-10">
<em>
Henry L. Marsh, III (Nadine Marsh-Carter; Hill, Tucker & Marsh,
</em>
on brief), for appellee.
</attorneys> | [
"257 Va. 61"
]
| [
{
"author_str": "Lacy",
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"type": "010combined",
"page_count": 5,
"download_url": "http://www.courts.state.va.us/opinions/opnscvwp/1980324.pdf",
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"opinion_text": "Present: All the Justices\n\nCRAIG RICHARDSON\n\nv. Record No. 980324 OPINION BY JUSTICE ELIZABETH B. LACY\n January 8, 1999\nVALERIE BRAXTON-BAILEY\n\n FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND\n Theodore J. Markow, Judge\n\n Valerie Braxton-Bailey filed a motion for judgment\n\nagainst Craig Richardson seeking $60,000 for injuries that she\n\nallegedly sustained in an automobile accident caused by\n\nRichardson's negligence. Following a jury trial, the trial\n\ncourt set aside a $3,265 verdict in favor of Braxton-Bailey,\n\nfinding it \"inconsistent with the law and the evidence,\" and\n\nthe case was retried on the issue of damages only. The second\n\ntrial resulted in a jury verdict of $1,270, which the trial\n\ncourt also set aside as \"contrary to the evidence and law\" and\n\n\"inadequate as a matter of law.\" Following a third trial on\n\ndamages alone, the trial court entered judgment on a jury\n\nverdict in the amount of $35,000. Richardson appealed,\n\nasserting that the first two verdicts were not inadequate as a\n\nmatter of law and that the third verdict was excessive as a\n\nmatter of law. We will reverse the judgment of the trial\n\ncourt because we conclude that the trial court erred in\n\nsetting aside the first verdict.\n\f In reviewing the trial court's action in setting aside\n\nthe jury verdict of $3,265, we apply the following familiar\n\nprinciples: (1) the amount of a verdict is within the jury's\n\ndiscretion, and when arrived at upon competent and proper\n\ninstructions, is inviolate, Taylor v. Maritime Overseas Corp.,\n\n224 Va. 562, 567, 299 S.E.2d 340, 343 (1983); (2) when\n\nevaluating the amount of the jury verdict, all reasonable\n\ninferences must be drawn in favor of the verdict rendered,\n\nHall v. Hall, 240 Va. 360, 363, 397 S.E.2d 829, 831 (1990);\n\nand (3) if, based on the evidence, the jury was entitled to\n\nbelieve that only a portion of the damages claimed were\n\nreasonably related to the accident, then the verdict cannot be\n\nset aside by the trial court as inadequate as a matter of law,\n\nBrown v. Huddleston, 213 Va. 146, 147, 191 S.E.2d 234, 235\n\n(1972).\n\n Braxton-Bailey was injured when Richardson failed to stop\n\nat a red traffic signal, and his vehicle hit the rear\n\npassenger side of Braxton-Bailey's vehicle. The impact spun\n\nher vehicle around, causing a flat rear tire. There was no\n\nother damage to her vehicle.\n\n The day after the accident, Braxton-Bailey, complaining\n\nof soreness in her neck, shoulder blades, right wrist, and\n\nright arm, went to see Dr. Leon J. Brown, Jr., a doctor\n\nrecommended by her attorney. Dr. Brown testified that\n\n\n 2\n\fBraxton-Bailey's injuries were caused by the accident. He also\n\ntestified that there were no objective symptoms of her\n\ninjuries and that his diagnosis was based solely on what\n\nBraxton-Bailey told him. The injuries were muscular in\n\nnature, did not involve nerve damage, and were not permanent.\n\nDr. Brown treated Braxton-Bailey with prescribed exercises,\n\nheat packs, anti-inflammatory medication and electric\n\nstimulation over the course of six weeks. Braxton-Bailey\n\nintroduced medical bills of $1,225 for Dr. Brown's services\n\nand $45.59 for prescription medications.\n\n Dr. Brown testified that he initially anticipated that\n\nBraxton-Bailey could return to her work as a teacher\n\napproximately two weeks after the accident, but that\n\n\"additional problems\" prevented her from doing so. He\n\ntestified that \"on several occasions we tried to get her back\n\nto work,\" but that she did not finally return to work until\n\nfive weeks after the accident. Braxton-Bailey asserted that\n\nshe incurred $5,905.20 in lost wages.\n\n The jury's verdict of $3,265 was clearly less than the\n\napproximately $7,200 in special damages claimed by Braxton-\n\nBailey. * In setting aside the verdict on the basis that it was\n\n\n *\n Counsel for Richardson stipulated that the amounts\nclaimed by Braxton-Bailey were incurred subsequent to the\naccident; however, the record does not support the conclusion,\nasserted by Braxton-Bailey, that Richardson's counsel agreed\n\n 3\n\f\"inconsistent with the evidence and law,\" the trial court did\n\nnot disagree with the jury's obvious conclusion that only a\n\nportion of Braxton-Bailey's damages were reasonably related to\n\nthe accident. The trial court's action was based on its\n\nbelief that the amount awarded reflected \"an award of the\n\nmedical expenses and two of the five weeks claimed for lost\n\nwages\" and that the jury thus made \"[n]o allowance\" for the\n\nother damage elements such as pain, suffering, and\n\ninconvenience which were contained in the jury instructions.\n\nThe trial court erred in setting aside the verdict based on\n\nthis assumption.\n\n When the evidence permits a jury to conclude that only\n\nsome of the damages claimed resulted from the accident, a\n\nverdict in an amount less than or approximating a portion of\n\nthe special damages does not justify the conclusion that the\n\njury failed to consider other damage elements such as pain,\n\nsuffering, and inconvenience. Walker v. Mason, 257 Va. ___,\n\n___ S.E.2d ___ (1999)(this day decided); Doe v. West, 222 Va.\n\n440, 446, 281 S.E.2d 850, 853 (1981). The quality of the\n\nevidence is dispositive, not a comparison between the amount\n\nof the verdict and the special damages claimed. See Doe v.\n\nWest, 222 Va. at 446, 281 S.E.2d at 852-53. Based on this\n\n\n\nor stipulated that those damages were proximately caused by\nthe accident.\n\n 4\n\frecord, we conclude that the jury was permitted to conclude\n\nthat not all the damages claimed by Braxton-Bailey were\n\nincurred as a result of the accident. The verdict was not\n\nbased upon an unreasonable interpretation of the evidence;\n\ntherefore, the trial court erred in setting it aside.\n\n Accordingly, we will reverse the judgment of the trial\n\ncourt, reinstate the jury verdict of $3,265 in favor of\n\nBraxton-Bailey, and enter final judgment here on that verdict.\n\n Reversed and final judgment.\n\n\n\n\n 5\n\f",
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| Supreme Court of Virginia | Supreme Court of Virginia | S | Virginia, VA |
818,569 | Aquilino | 2005-08-17 | false | ugine-alz-belgium-n-v-v-united-states | null | Ugine & Alz Belgium, N v. v. United States | UGINE & ALZ BELGIUM, N v. Arcelor Stainless USA, LLC; And Arcelor Trading USA, LLC, Plaintiffs, v. UNITED STATES, Defendant | Shearman & Sterling LLP, Washington, DC (Robert S. LaRussa, Stephen J. Mar-zen and Ryan A.T. Trapani) for the plaintiffs., Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director, and Jeanne E. Davidson, Deputy Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Michael D. Panzera); and Office of Chief Counsel for Import Administration, U.S. Department of Commerce (Ada Loo and Arthur Sidney) and Bureau of Customs and Border Protection, U.S. Department of Homeland Security (Christopher Chen), of counsel, for the defendant., Collier Shannon Scott, PLLC (David A. Hartquist, R. Alan Luberda, Kathleen W. Cannon and Adam H. Gordon) for proposed intervenor-defendants AK Steel Corporation, Allegheny Ludlum Corporation, North American Stainless, United Auto Workers Local 3303, Zanesville Arna-co Independent Organization, and United Steelworkers of America, AFL-CIO/CLC. | null | null | null | null | null | null | null | null | null | null | 0 | Published | null | <parties id="b1324-9">
UGINE & ALZ BELGIUM, N.V.; Arcelor Stainless USA, LLC; and Arcelor Trading USA, LLC, Plaintiffs, v. UNITED STATES, Defendant.
</parties><br><docketnumber id="b1324-12">
Slip Op. 05-97.
</docketnumber><docketnumber id="A3G">
Court No. 05-00444.
</docketnumber><br><court id="b1324-14">
United States Court of International Trade.
</court><br><decisiondate id="b1324-15">
Aug. 17, 2005.
</decisiondate><br><attorneys id="b1325-9">
<span citation-index="1" class="star-pagination" label="1285">
*1285
</span>
Shearman & Sterling LLP, Washington, DC (Robert S. LaRussa, Stephen J. Mar-zen and Ryan A.T. Trapani) for the plaintiffs.
</attorneys><br><attorneys id="b1325-10">
Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director, and Jeanne E. Davidson, Deputy Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Michael D. Panzera); and Office of Chief Counsel for Import Administration, U.S. Department of Commerce (Ada Loo and Arthur Sidney) and Bureau of Customs and Border Protection, U.S. Department of Homeland Security (Christopher Chen), of counsel, for the defendant.
</attorneys><br><attorneys id="b1325-11">
Collier Shannon Scott, PLLC (David A. Hartquist, R. Alan Luberda, Kathleen W. Cannon and Adam H. Gordon) for proposed intervenor-defendants AK Steel Corporation, Allegheny Ludlum Corporation, North American Stainless, United Auto Workers Local 3303, Zanesville Arna-co Independent Organization, and United Steelworkers of America, AFL-CIO/CLC.
</attorneys> | [
"2005 CIT 97",
"29 Ct. Int'l Trade 901",
"391 F. Supp. 2d 1284"
]
| [
{
"author_str": "Aquilino",
"per_curiam": false,
"type": "010combined",
"page_count": 19,
"download_url": "http://www.cit.uscourts.gov/SlipOpinions/Slip_op05/05-97.pdf",
"author_id": null,
"opinion_text": " Slip Op. 05 - 97\n\n UNITED STATES COURT OF INTERNATIONAL TRADE\n\n- - - - - - - - - - - - - - - - - - - x\nUGINE & ALZ BELGIUM, N.V.; ARCELOR\nSTAINLESS USA, LLC; and ARCELOR TRAD- :\nING USA, LLC,\n :\n Plaintiffs,\n :\n v. Court No. 05-00444\n :\nUNITED STATES,\n :\n Defendant.\n- - - - - - - - - - - - - - - - - - - x\n\n Opinion & Order\n\n\n[Plaintiffs' preliminary application to\n enjoin Department of Commerce liquidation\n instructions to Bureau of Customs denied.]\n\n\n Dated: August 17, 2005\n\n Shearman & Sterling LLP (Robert S. LaRussa, Stephen J. Marzen\nand Ryan A.T. Trapani) for the plaintiffs.\n\n Peter D. Keisler, Assistant Attorney General; David M. Cohen,\nDirector, and Jeanne E. Davidson, Deputy Director, Commercial Liti-\ngation Branch, Civil Division, U.S. Department of Justice (Michael\nD. Panzera); and Office of Chief Counsel for Import Administration,\nU.S. Department of Commerce (Ada Loo and Arthur Sidney) and Bureau\nof Customs and Border Protection, U.S. Department of Homeland\nSecurity (Christopher Chen), of counsel, for the defendant.\n\n Collier Shannon Scott, PLLC (David A. Hartquist, R. Alan Lu-\nberda, Kathleen W. Cannon and Adam H. Gordon) for proposed\nintervenor-defendants AK Steel Corporation, Allegheny Ludlum\nCorporation, North American Stainless, United Auto Workers Local\n3303, Zanesville Armco Independent Organization, and United Steel-\nworkers of America, AFL-CIO/CLC.\n\n\n AQUILINO, Senior Judge: Jurisdiction of the court is\n\npleaded to be pursuant to 28 U.S.C. §1581(i) over the subject\n\nmatter of this action, which is the propriety of certain liquida-\n\fCourt No. 05-00444 Page 2\n\ntion instructions that have been issued to the Bureau of Customs\n\nand Border Protection, U.S. Department of Homeland Security1 by the\n\nInternational Trade Administration, U.S. Department of Commerce2 in\n\nconjunction with its Notice of Amended Final Determinations:\n\nStainless Steel Plate in Coils from Belgium and South Africa; and\n\nNotice of Countervailing Duty Orders: Stainless Steel Plate in\n\nCoils from Belgium, Italy and South Africa, 64 Fed.Reg. 25,288 (May\n\n11, 1999), and its Antidumping Duty Orders; Certain Stainless Steel\n\nPlate in Coils From Belgium, Canada, Italy, the Republic of Korea,\n\nSouth Africa, and Taiwan, 64 Fed.Reg. 27,756 (May 21, 1999).\n\n\n I\n\n In commencing this action via summons and complaint,\n\ncounsel for the plaintiffs also filed applications for immediate\n\ninjunctive relief. The court promptly thereupon conferred with\n\nthem and counsel for the defendant (and the proposed intervenor-\n\ndefendants) who consented to entry (on July 27, 2005) of a\n\ntemporary restraining order, which, among other things, enjoins CBP\n\n from implementing Liquidation Instructions issued by the\n [ITA] in conjunction with Message No. 5182203 (July 1,\n 2005)[,] Message No[.] 5189205 (July 8, 2005), Message\n No. 5189204 (July 8, 2005), Message No. 5199201 (July 18,\n 2005), or otherwise taking any action that results in the\n treatment of entries of Stainless Steel Plate in Coils\n hot rolled in Germany and not further cold rolled in\n Belgium as having a country of origin of Belgium for the\n purpose of assessing antidumping or countervailing\n duties[.]\n\n 1\n Referred to hereinafter as \"CBP\".\n 2\n Referred to hereinafter as \"ITA\".\n\fCourt No. 05-00444 Page 3\n\n\nThe order covers listed entries of subject merchandise (\"SSPC\") in\n\nthe ports of Chicago (between July 29, 1999 and Oct. 31, 2001),\n\nHouston (between Oct. 26, 1998 and Feb. 23, 2002), Los Angeles (on\n\nApril 13, 1999), Portland (between Feb. 10, 1999 and Jan. 29,\n\n2002), Richmond (between Feb. 24, 1999 and July 17, 2001), Seattle\n\n(between March 4, 1999 and Jan. 13, 2000), and Philadelphia\n\n(between Sept. 8, 1998 and Feb. 25, 2002).\n\n\n The defendant also consented to the motion of the above-\n\nnamed domestic interested parties and certified or recognized\n\nunions within the meaning of 19 U.S.C. §1677(9)(C) and (D) for\n\nleave to intervene in this action as parties defendant. The\n\nplaintiffs have now filed papers in opposition to this motion to\n\nintervene, arguing, among other things, that this action\n\n is one solely between [them], whose entries are at issue,\n and the Government.\n\n\n For their part, [the] . . . Proposed Intervenors[]\n cannot identify any legally cognizable interest in this\n proceeding. Contrary to [their] suggestion, this pro-\n ceeding is not an appeal of administrative review pro-\n ceedings. Proposed Intervenors' interested party status\n in such an appeal is thus entirely irrelevant. Nor is\n this proceeding one to determine whether or to what\n extent Proposed Intervenors are entitled to disbursements\n from the special accounts created by the Continued Dump-\n ing and Subsidy Offset Act of 2000 (\"CDSOA\"), 19 U.S.C.\n § 1675c. As the Government has argued before the World\n Trade Organization (\"WTO\"), the CDSOA is merely a dis-\n bursement program and \"has nothing to do with imported\n goods or importers.\" . . . Ex. 1. The CDSOA deals only\n with the allocation and disbursement of already collected\n duties, not the Government's prior discretionary proced-\n ures to assess and collect those duties.\n\fCourt No. 05-00444 Page 4\n\n\nMemorandum in Opposition to Motion to Intervene, pp. 1-2. This\n\nopposition has engendered in turn a motion by the proposed\n\nintervenor-defendants for leave to respond to the plaintiffs, which\n\nmotion is hereby granted. The response is, in part, that,\n\n while domestic parties may not appeal a liquidation by\n Customs that has occurred, they can participate in a\n challenge to liquidation instructions issued by Commerce\n prior to liquidation. Arcelor cites no authority to the\n contrary. Proposed intervenors were interested parties\n in the proceedings that generated the challenged liquida-\n tion instructions, and indeed, Commerce sought comments\n from the domestic industry as well as Arcelor as to the\n appropriate scope and nature of those instructions. Pro-\n posed intervenors clearly have a cognizable interest in\n the instructions issued and the underlying decision that\n they represent.\n\n\nMotion for Leave to Respond to Plaintiffs' Opposition to Motion to\n\nIntervene, pp. 2-3.\n\n\n Upon consideration of the arguments, well-presented on\n\nboth sides, the court concludes that the determinative factor is\n\nthe direct participation before the ITA by the petitioners-cum-\n\nproposed-parties-at-bar in the agency promulgation of the liquida-\n\ntion instructions now at issue herein. See, e.g., Memorandum in\n\nSupport of Plaintiffs' Motion for Temporary Restraining Order and\n\nPreliminary Injunction [hereinafter \"Plaintiffs' Memorandum\"], Ex-\n\nhibit 9. That is, having been privy to and part of that admini-\n\nstrative process, their motion for leave to formally join the\n\njudicial review of the results thereof can be, and it hereby is,\n\ngranted.\n\fCourt No. 05-00444 Page 5\n\n\n II\n\n According to the complaint and corporate disclosure\n\nstatements on USCIT Form 13 filed in conjunction therewith, the\n\nfirst-named plaintiff is a corporation organized under the laws of\n\nBelgium, whereas the two Arcelor firms are creatures of the law of\n\nDelaware, U.S.A. All three corporations are wholly-owned subsidi-\n\naries of a Luxembourg corporation, Arcelor S.A. Their complaint\n\navers:\n\n German SSPC Mistakenly Entered as Belgian Merchandise\n\n 9. From September 4, 1998 to April 30, 2002, Ar-\n celor imported into the United States SSPC that was\n hot rolled in Germany and not further cold rolled in\n Belgium. The country of origin of such merchandise\n is Germany.\n\n 10. Although the SSPC was not further cold rolled\n in Belgium, it was pickled, annealed, packaged, and\n shipped from Belgium. Accordingly, at the time of en-\n try, Arcelor mistakenly declared the country of origin\n for the merchandise to be Belgium rather than Germany.\n\n 11. At the time Arcelor's German SSPC entered the\n United States, the Antidumping and Countervailing Duty\n Orders for SSPC from Belgium were in effect.\n\n 12. Arcelor paid cash deposits of antidumping and\n countervailing duties on the German hot-rolled SSPC\n that entered the United States at the rates specified\n in the Orders for Belgian SSPC.\n\n 13. Because the country of origin of the SSPC im-\n ported by Arcelor is Germany, that merchandise was not\n and never has been subject to the Antidumping and Coun-\n tervailing Duty Orders for S[SPC] from Belgium and Ar-\n celor should not have had to pay cash deposits of anti-\n dumping and countervailing duties.\n\n 14. Promptly after realizing its mistake, Arcelor\n filed disclosures and timely protests with Customs\n pursuant to 19 U.S.C. § 1514 to correct the country of\n origin.\n\fCourt No. 05-00444 Page 6\n\n\n 15. For its part, Commerce mistakenly included the\n German SSPC in its calculation of the antidumping duty\n rates for Belgian SSPC in the first, second and third\n periods of review.\n\n * * *\n\n 16. Consistent with its long-standing practice,\n in the Fourth Administrative Review of the Antidumping\n Duty Order for S[SPC] from Belgium, Commerce determined\n that SSPC hot rolled in Germany and not further cold\n rolled in Belgium is German. . . .\n\n * * *\n Commerce Instructed Customs to Liquidate Entries\n of Arcelor's German SSPC as Belgian Merchandise\n\n * * *\n\n 20. On July 1, 2005, Commerce issued to Customs\n . . . Fourth Review Period Antidumping Duty Liquida-\n tion Instructions[]. Those instructions limited - to\n entries of SSPC made on or after May 1, 2002 - appli-\n cation of Commerce's determination that SSPC hot roll-\n ed in Germany and not further cold rolled in Belgium\n is not subject to the Antidumping Duty Order.\n\n 21. On July 1, 2005, Commerce issued a memoran-\n dum attempting to explain its reasons for issuing the\n Fourth Review Period Antidumping Duty Liquidation In-\n structions. . . . Commerce refused to state that all\n SSPC hot rolled in Germany and not further cold rolled\n in Belgium, imported by Arcelor, is German for country-\n of-origin purposes. . . .\n\n 22. On July 8, 2005, . . . Commerce issued . . .\n for . . . entries for the period 09/01/1998 through\n 12/31/1999 [] \"Countervailing Duty Liquidation Instruc-\n tions\" [that] . . . instructed Customs to liquidate\n SSPC hot rolled in Germany and not further cold rolled\n in Belgium as merchandise subject to the countervailing\n duty order for SSPC from Belgium. . . . Commerce gave\n no reason why it instructed Customs to liquidate German\n merchandise as Belgian.\n\n 23. On July 8, 2005, . . . Commerce issued Coun-\n tervailing Duty Cash Deposit Instructions for S[SPC]\n from Belgium [that] . . . instructed Customs that\n\fCourt No. 05-00444 Page 7\n\n\n \"[e]ffective 05/01/2002 . . . entries of SSPC hot roll-\n ed in Germany and not further cold rolled in Belgium\n are not subject to the suspension of liquidation and do\n not require cash deposits of estimated countervailing\n duties.\" . . .\n\n 24. On July 18, 2005, Commerce instructed Customs\n to liquidate German hot rolled SSPC entered between\n November 4, 1998 and April 30, 2000 as subject to the\n Antidumping Duty Order for SSPC from Belgium. . . . As\n with the Countervailing Duty Liquidation Instructions,\n Commerce gave no reason why it instructed Customs to\n liquidate German merchandise as Belgian.3\n\nWhereupon the plaintiffs claim that the referenced liquidation\n\ninstructions are arbitrary, capricious, an abuse of discretion, and\n\notherwise not in accordance with law under 5 U.S.C. §706(2)(A).\n\nThey pray for a declaratory judgment to this effect, which would be\n\nthe basis of injunction(s) against those instructions and a pos-\n\nsible remand to the defendant in connection therewith.\n\n\n A\n\n The plaintiffs recognize, as they must, that a prelimi-\n\nnary injunction is an extraordinary remedy and can only be granted\n\nupon showing:\n\n (1) A threat of immediate irreparable harm; (2) that the\n public interest would be better served by issuing than by\n denying the injunction; (3) a likelihood of success on\n the merits; and (4) that the balance of hardship on the\n parties favor[s issuance].\n\n\nS.J. Stile Associates, Ltd. v. Snyder, 68 CCPA 27, 30, C.A.D. 1261,\n646 F.2d 522, 525 (1981). That is, failure to bear the burden of\n\n\n 3\n Boldface headings in original; citations omitted.\n\fCourt No. 05-00444 Page 8\n\n\npersuasion as to any of these four factors is ground for denial of\n\nan application. E.g., American Stevedoring Inc. v. U.S. Customs\n\nService, 18 CIT 331, 335, 852 F.Supp. 1067, 1071 (1994), citing Bo-\n\nmont Industries v. United States, 10 CIT 431, 638 F.Supp. 1334\n\n(1986), and FMC Corporation v. United States 3 F.3d 424, 427 (Fed.\n\nCir. 1993). See Plaintiffs' Memorandum, p. 5, citing Zenith Radio\n\nCorp. v. United States, 710 F.2d 806, 809 (Fed.Cir. 1983).\n\n\n (1)\n\n Zenith is, of course, seminal authority with regard to\n\nthe Trade Agreements Act of 1979, as amended, but the controlling\n\nissue therein was whether liquidation of the underlying entries\n\nwould eliminate the only remedy for an incorrect ITA determination\n\npursuant to that act's section 751 by depriving the Court of Inter-\n\nnational Trade of the ability (i.e., jurisdiction) to ensure anti-\n\ndumping duties in accordance with the correct margin for those\n\nentries. The court of appeals concluded that it would. See 710\n\nF.2d at 809-10 and, for example, SKF USA Inc. v. United States, 28\n\nCIT , , 316 F.Supp.2d 1322, 1327 (2004). But jurisdiction of\n\nthe court is not necessarily in jeopardy. Indeed, as recited\n\nabove, paragraph 14, the plaintiffs claim to have filed timely\n\nprotests with Customs pursuant to 19 U.S.C. §1514 which, one could\n\nassume, provide them with some current protective comfort.\n\n\n Be those protests as they are, this action encompasses\n\nnumerous entries that have yet to be liquidated, and which has been\n\fCourt No. 05-00444 Page 9\n\n\nrestrained, at least temporarily pending this preliminary opinion.\n\nIn seeking to extend this injunctive relief, plaintiffs' argument\n\nwith regard to irreparable harm is as follows:\n\n\n . . . If Customs executes those [ITA] instructions, this\n action will become moot, Commerce's instructions will be\n insulated from judicial review, and Arcelor will lose its\n day in court. \"Plainly, irreparable harm will occur\n . . . if Commerce's action is not subject to judicial\n review; and if plaintiff will be deprived of its right to\n contest antidumping duty assessments when the liquidation\n of entries currently held by Customs are liquidated.\"\n Royal Business Machs., Inc. v. United States, . . . 1\n C.I.T. 24, 25 . . . [1980).\n\n\n To be sure, Arcelor ha[s] pending protests before\n Customs. But \"Customs merely follows Commerce's instruc-\n tions\" and \"has a merely ministerial role in liquidating\n antidumping duties under 19 U.S.C. §1514(a)(5).\" Mitsu-\n bishi Elecs. America, Inc. v. United States, 44 F.3d 973,\n 977 (Fed.Cir. 1994). Where, as here, \"Commerce sent\n liquidation instructions to Customs, which then imposed\n antidumping duties as directed by Commerce as part of its\n ministerial functions,\" Commerce's liquidation instruc-\n tions would not be subject to protest and \"[t]he court\n has no jurisdiction pursuant to [28 U.S.C.] § 1581(a) for\n it was Commerce's instructions, rather than an independ-\n ent decision by Customs, which determined the antidumping\n rate.\" J.S. Stone Inc. v. United States, 297 F.Supp.2d\n 1333, 1338 (CIT 2003).\n\nPlaintiffs' Memorandum, pp. 5-6.\n\n\n If this position were well-settled, then plaintiffs'\n\nformal protests could prove to be of no conclusive moment. But\n\nthis court notes that all that was before the court in the cited\n\nRoyal Business Machines matter was purported immediate concern by\n\nthat plaintiff that the ITA might come to modify the scope of an\n\noutstanding antidumping-duty order, ergo the court's conditional\n\fCourt No. 05-00444 Page 10\n\n\nlanguage quoted above; and this court also notes that J.S. Stone,\n\nInc. v. United States, 27 CIT , and 297 F.Supp.2d 1333, 1338\n\nn. 6 (2003), aff'd, 111 Fed.Appx. 611 (Fed.Cir. 2004), itself cites\n\nXerox Corp. v. United States, 289 F.3d 792, 795 (Fed.Cir. 2002), as\n\nholding that,\n\n when a plaintiff's goods are facially outside of the\n scope of an antidumping duty order, a scope determination\n by Commerce and participation in the antidumping review\n were unnecessary predicates to a challenge of Customs\n imposition of antidumping duties. The Federal Circuit\n explained that . . . \"the . . . misapplication of the\n order by Customs was properly the subject of a protest\"\n under 19 U.S.C. §1514(a)(2) and reviewable by the CIT\n under 28 U.S.C. §1581(a). . . . Thus, misapplication of\n an antidumping order or the erroneous imposition of\n antidumping duties by Customs may be protested and suit\n brought before the court pursuant to § 1581(a).[]\n\n\nIn fact, it was the undersigned's opinion in Xerox Corp. v. United\n\nStates, 24 CIT 1145, 118 F.Supp.2d 1353 (2000), to the opposite\n\neffect that was reversed and remanded by the court of appeals.\n\n\n Accepting this appellate enlightenment makes it now\n\ndifficult to conclude that plaintiffs' procedural posture herein\n\namounts to unequivocal irreparable harm.\n\n\n (2)\n\n As for whatever harm is actually at bar, this court can\n\nconclude that it weighs more on the plaintiffs than on either the\n\ndefendant or the intervenor-defendants for the reasons so suc-\n\ncinctly stated, to wit:\n\n . . . The government holds cash deposits. If Arcelor\n does not succeed on its claims, interested parties are\n fully secured.\n\fCourt No. 05-00444 Page 11\n\n\nPlaintiffs' Memorandum, p. 11. Perhaps this is why experienced\n\ncounsel for the defendant and also for the intervenors have now\n\nfiled papers, consenting, at least for purposes of orderly pro-\n\nceeding, to entry of a preliminary injunction. On behalf of the\n\ngovernment, they state their\n\n consent . . ., although we dispute that plaintiff[sic]\n has established a likelihood of success upon the merits\n of plaintiffs' claims. Indeed, in our view, plaintiffs'\n claims are wholly without merit, and plaintiffs stand no\n chance of prevailing upon the merits. However, a pre-\n liminary injunction will prevent the irreparable harm\n from liquidation of any entries that have not yet been\n liquidated. See Zenith Radio Corp. v. United States, 710\n F.2d 806, 810 (Fed.Cir. 1983).\n\n\nDefendant's Response to Motion for Preliminary Injunction, p. 1.\n\nThe other filing states that the\n\n intervenors believe that plaintiffs do not meet any of\n the requirements to receive a preliminary injunction.\n . . . [Also], it appears that granting a preliminary in-\n junction against liquidation of all of the listed entries\n may be inappropriate, because it appears that some or all\n of the entries for which plaintiffs seek to enjoin\n liquidation have already been deemed liquidated as a\n matter of law under 19 U.S.C. § 1504(d). The request for\n an injunction is not timely made for any entries that\n have been liquidated as a matter of law.\n\n Despite these defects in plaintiffs' application,\n proposed intervenors conditionally consent to the\n granting of a preliminary injunction for purely practical\n reasons -- to allow the Government and the parties to\n fully research and brief these substantive issues, par-\n ticularly concerning the history and liquidation status\n of the subject entries. . . .4\n\n\n\n 4\n Intervenor-Defendants' Response to Plaintiffs' Motion for\nPreliminary Injunction, pp. 1-2 (emphasis in original).\n\n (footnote continued)\n\fCourt No. 05-00444 Page 12\n\n\n (3)\n\n However salutary the concerns for orderly proceeding (and\n\neven accommodation) are, all who engage in international trade with\n\nthe United States, and in subsequent administrative and judicial\n\nreview thereof, must adhere, to the best of their respective\n\nsituations, to the dictates of the governing law and related rules\n\nof practice. While the court can subscribe to plaintiffs' argument\n\nthat the public has a compelling interest in judicial review of\n\nadministrative action5, this subscription does not automatically\n\nfavor them (or alleviate their perceived predicament6). That is,\n\nit is not clear from the record, such as it has been presented\n\ninitially, that the public's interest compels entry now of a pre-\n\nliminary injunction in favor of the plaintiffs.\n\n\n\n The court notes in passing that both responses set forth\nlists of entries that respective counsel apparently consider at\nleast arguably at issue. According to the defendant's,\n\n [o]n August 10, 2005, plaintiffs stated that they have\n no objection to our amendments to their original pro-\n posed preliminary injunction order.\n\nDefendant's Response to Motion for Preliminary Injunction, p. 2.\n 5\n Plaintiffs' Memorandum, p. 11.\n 6\n Cf. id. at 4 n. 2:\n\n . . . [S]ince Arcelor cannot know until after liqui-\n dation whether its remedy lies on review of Customs'\n protest decision or Commerce's liquidation instruc-\n tions, an injunction must be granted now to preserve\n this Court's jurisdiction and Arcelor's right to ju-\n dicial review.\n\fCourt No. 05-00444 Page 13\n\n\n (4)\n\n Whatever the harm and its precise balance between the\n\nvarious parties herein may be, this court and others have held that\n\nthe severity of the injury the moving party will sustain without\n\ninjunctive relief is in inverse proportion to the showing of\n\nlikelihood of success on the merits. E.g., Wolverine Tube (Canada),\n\nInc. v. United States, 23 CIT 76, 78, 36 F.Supp.2d 410, 413 (1999),\n\nciting Makita Corp. v. United States, 17 CIT 240, 250, 819 F.Supp.\n\n1099, 1108 (1993); Ceramica Regiomontana, S.A. v. United States, 7\n\nCIT 390, 395, 590 F.Supp. 1260, 1264 (1984); American Air Parcel\n\nForwarding Co. v. United States, 1 CIT 293, 300, 515 F.Supp. 47, 53\n\n(1981).\n\n\n The plaintiffs claim a \"substantial likelihood of suc-\n\ncess\" in challenging the ITA's liquidation instructions because\n\n\"they are flatly inconsistent with the agency's long-standing\n\npractice and its subsequent determination in this proceeding\".7 Of\n\ncourse, the main issue at bar is whether that determination can be\n\ndrawn into \"this proceeding\". As the complaint itself indicates,\n\nsupra, that subsequent determination was rendered as a result of\nthe ITA's fourth administrative review pursuant to section 751 of\n\nthe Trade Agreements Act, 19 U.S.C. §1675, and not during the\n\npreceding three such reviews that covered the entries that are now\n\nsubject to plaintiffs' attempt at resurrection -- in the aftermath\n\n\n 7\n Id. at 6 (initial capital letters and boldface print of all\nthe words deleted).\n\fCourt No. 05-00444 Page 14\n\n\nof that fourth ITA review, which led the agency specifically to\n\ndetermine that its decision apply only to SSPC entries on or after\n\nMay 1, 2002, viz.:\n\n\n In the context of the fourth review, Respondent sub-\n mitted information to the record showing that it had sold\n German SSPC to the United States. For the final results\n of the fourth review of this antidumping duty order, we\n determined that SSPC hot-rolled in Germany and not\n further cold-rolled in Belgium was not subject to the\n antidumping duty order on SSPC from Belgium. . . . As\n such, our analysis of Respondent's sales of SSPC to the\n United States made during the POR for the fourth review\n did not include sales of German SSPC. During the fourth\n administrative review, neither the Petitioners nor the\n Respondent raised this country of origin issue with re-\n spect to any specific sales reviewed during prior\n administrative reviews of this order or the effect of the\n country of origin decision on unliquidated entries from\n prior closed reviews. As articulated in Comment 1 above,\n consistent with the Torrington Remand, we find that 1)\n our position regarding the German merchandise is fully\n articulated and final, 2) we did not calculate antidump-\n ing margins using German merchandise in the Fourth\n Administrative Review, and 3) the country of origin of\n merchandise hot-rolled in Germany was first raised in the\n Fourth Administrative Review. Therefore, we recommend\n applying our country of origin determination to entries\n covered by the fourth review and future entries, i.e.,\n to entries made on or after May 1, 2002.8\n\nAnd CBP was instructed accordingly. See Plaintiffs' Memorandum,\n\nExhibit 2, para. 3 (July 1, 2005):\n\n Based on the evidence reviewed by Commerce in con-\n ducting the administrative review of entries made during\n\n 8\n Id., Exhibit 6, p. 7 (July 1, 2005)(Memorandum re Customs\nInstructions for the Final Results of the Fourth Administrative\nReview of the Antidumping Duty Order on . . . SSPC[] from Bel-\ngium)(citation to Comment 4 of the ITA Issues and Decision Mem-\norandum of the Fourth Administrative Review of the Antidumping\nDuty Order on . . . SSPC[] from Belgium (Dec. 14, 2004), ibid.,\nExhibit 1, available at http://ia.ita.doc.gov/frn/summary/2004-\ndec.htm, omitted).\n\fCourt No. 05-00444 Page 15\n\n\n this period (05/01/02-04/30/03), the Department has\n determined that imports of SSPC hot rolled in Germany and\n not further cold rolled in Belgium are not subject to the\n antidumping duty order on SSPC from Belgium. Entries of\n this merchandise made on or after 05/01/02 should be\n liquidated without regard to antidumping duties.\n\n\nCapitalization deleted. Compare id. with id., Exhibit 10 (June 23,\n\n2005)(ITA draft liquidation instructions) and id., Exhibit 4, para.\n\n5 (July 18, 2005)(antidumping-duty liquidation instructions for\n\nperiod 11/4/98 to 4/30/00) and id. Exhibit 5, para. 7 (July 8,\n\n2005)(countervailing-duty liquidation instructions for period\n\n9/4/98 to 12/31/99).\n\n\n In support of their claim of \"substantial likelihood of\n\nsuccess\" on the merits, the plaintiffs challenge the agency's\n\nposition on two grounds, namely, (a) it is contrary to law, and\n\n(b), because their entries have not been liquidated, administrative\n\nfinality does not prevent correction of the country of origin.\n\n\n (a)\n\n Their complaint, as recited above, is that, for their\n\nentries between September 4, 1998 and April 30, 2002, they \"mis-\n\ntakenly\" declared the country of origin to be Belgium rather than\n\nGermany, whereupon they paid cash deposits of antidumping and\n\ncountervailing duties on their merchandise that entered the United\n\nStates during those four years as specified in the underlying\n\norders governing Belgium. Moreover, the plaintiffs claim that\n\fCourt No. 05-00444 Page 16\n\n\n [n]either Arcelor nor Commerce caught the mistake during\n the first three administrative reviews of the antidumping\n and countervailing duty orders on SSPC from Belgium. The\n mistake was identified and corrected in the fourth admin-\n istrative review.\n\n\nPlaintiffs' Memorandum, p. 2. Yet, they seem critical that the\n\n\"only pertinent 'evidence' in the [fourth] administrative record\n\n. . . is evidence of the country in which the steel was hot\n\nrolled.\" Id. at 8. Nonetheless, they refer to other ITA proceed-\n\nings involving steel wherein that alone was also the determinative\n\nfactor for country of origin. Finally, they cite Renesas Technol-\n\nogy America, Inc. v. United States, 27 CIT , Slip Op. 03-106\n\n(Aug. 18, 2003), to the effect that \"liquidation instructions that\n\ntreat identical merchandise differently are arbitrary and capri-\n\ncious\". Id. But that case, which contested an ITA instruction to\n\nliquidate entries of an unreviewed reseller of such subject mer-\n\nchandise at the cash deposit rate, has been summarily reversed on\n\nappeal, Renesas Technology America, Inc. v. United States, Nos. 04-\n\n1473,-1474, 2005 WL 1540159 (Fed.Cir. July 1, 2005), based upon the\n\nopinion of the same date in Nissei Sangyo America, Ltd. v. United\nStates, Nos. 04-1469,-1492, 2005 WL 1540161, at *1 (Fed.Cir. July\n\n1, 2005), wherein the court of appeals stated that,\n\n [b]ecause the arguments in favor of the appellee [im-\n ports] are foreclosed by the decisions in Consolidated\n Bearings Co. v. United States, 348 F.3d 997 (Fed.Cir.\n 2003) . . ., and Consolidated Bearings Co. v. United\n States, [412 F.3d 1266] (Fed.Cir. June 21, 2005) . . .,\n which collectively held that an unreviewed reseller is\n not statutorily entitled to the manufacturer's review\n rate and that Commerce in the past consistently liqui-\n\fCourt No. 05-00444 Page 17\n\n\n dated unreviewed entries from unrelated resellers at the\n cash deposit rate, we reverse the decision of the Court\n of International Trade.\n\nEmphasis in original.\n\n\n If this then is the only court case the plaintiffs can\n\ncite, it provides no obvious support for their thesis herein.\n\n\n (b)\n\n As indicated above, the ITA provided the parties with\n\ndraft customs instructions. See Plaintiffs' Memorandum, Exhibit\n\n10. And both sides responded. Compare id., Exhibit 8 with id.,\n\nExhibit 9. The agency thereupon promulgated the instructions now\n\nat issue. See generally id., Exhibit 6. Among other things, it\n\nreferred to and relied on its Final Results of Redetermination on\n\nRemand9 that issued pursuant to the order of the court in Torring-\n\nton Co. v. United States, 23 CIT 452 (1999), that the ITA apply to\n\nits\n\n Final Scope Ruling - Antidumping Duty Order on Cylindri-\n cal Roller Bearings and Parts Thereof from Japan -\n Regarding a Certain Cylindrical Roller Bearing Produced\n by Koyo Seiko Co., Ltd., and Imported by Koyo Corporation\n of U.S.A. (Aug. 10, 1998), an effective date in accord-\n ance with the Court's holding in Timken Co. v. United\n States, 21 CIT 889, 972 F.Supp. 702 (1997), aff'd sub\n nom. Koyo Seiko Co., Ltd. v. United Sates, 155 F.3d 574\n (Fed.Cir. 1998).\n\n\n\n\n 9\n The plaintiffs have reproduced a copy of this redetermina-\ntion and appended it to their memorandum as exhibit 7.\n\fCourt No. 05-00444 Page 18\n\n\nJudicial affirmance of those final results in their entirety10 led\n\nto the agency's repetition of the following statement therein in\n\nresponse to the [plaintiffs'] comments on its draft liquidation\n\ninstructions herein:\n\n\n In Timken, the Court held that unliquidated merchandise\n which entered the customs territory of the United States\n after the publication of the antidumping duty order, but\n before the issuance of the scope ruling, should be li-\n quidated in accordance with the antidumping duty order.\n The CIT, however, stated that its holding was not\n intended to disturb the principles of administrative\n finality, i.e., require the re-opening or re-review of\n closed proceedings. Thus, while a scope determination\n once made is effective back to the publication of the an-\n tidumping duty order, the CIT's holding in Timken re-\n quires the Department to apply the scope determination\n only as far back as the principle of administrative\n finality warrants - back to unliquidated entries of sub-\n ject merchandise covered by any administrative review\n period open at the time the scope issue was first raised,\n and to all unliquidated entries on in-scope merchandise\n after that period.11\n\n\n The plaintiffs attempt to undermine this reasoning by\n\nreferring to the underlying Timken litigation cited above, but, on\n\nits face, Torrington stands as further refinement of the import of\n\nsubsequent rulings as to the precise scope of an antidumping or\n\ncountervailing-duty order. Whereupon the plaintiffs add that,\n\n even if this Court were to adopt Commerce's Torrington\n redetermination, it would only limit the inclusion of\n \"subject merchandise covered by any administrative review\n period open at the time the scope issue was first\n raised.\" . . . It does not by its terms prevent exclu-\n sion of non-subject merchandise - such as German merchan-\n\n 10\n See Torrington Co. v. United States, 24 CIT 306 (2000).\n 11\n Plaintiffs' Memorandum, Exhibit 6, p. 4 (emphasis added and\ncitations omitted by ITA herein).\n\fCourt No. 05-00444 Page 19\n\n\n dise from orders covering Belgian merchandise. Since\n non-subject merchandise was (by definition) never subject\n to the antidumping and countervailing duty orders, en-\n tries of such merchandise cannot be liquidated as subject\n merchandise. Any instructions to do so would be contrary\n to law. As a result, Arcelor has a substantial likeli-\n hood of succeeding in its claim that Commerce has no\n legal authority to instruct Customs to liquidate German\n SSPC as Belgian merchandise.\n\n\nPlaintiffs' Memorandum, p. 10 (emphasis in original; citation\n\nomitted).\n\n This court cannot concur.\n\n\n III\n\n In sum, the court cannot and therefore does not conclude\n\nthat plaintiffs' instant application satisfies all of the standards\n\nfor grant of the extraordinary interim equitable relief that is a\n\npreliminary injunction. Before entry of an order to this effect,\n\nhowever, the plaintiffs may inform the court and opposing counsel\n\non or before August 24, 200512, as to how they propose to proceed\n\nfrom now on in this matter.\n\n So ordered.\n\nDated: New York, New York\n August 17, 2005\n\n\n Thomas J. Aquilino, Jr.\n Senior Judge\n\n\n\n 12\n The court's temporary restraining order is hereby extended\nto the close of business on that day.\n\f",
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| Court of International Trade | United States Court of International Trade | FS | USA, Federal |
2,593,898 | Varner | 1993-11-29 | false | borden-v-csx-transportation-inc | Borden | Borden v. CSX Transportation, Inc. | Roberta BORDEN, Etc., Plaintiff, v. CSX TRANSPORTATION, INC.; Et Al., Defendants | J. McGowin Williamson, Williamson and Williamson, Greenville, AL, and John A. Taber, Taber and Dansby, Montgomery, AL, for plaintiff., Walter A. Byars and William A. Shashy, Steiner, Crum and Baker, Montgomery, AL, for defendants. | null | null | null | null | null | null | null | null | null | null | 7 | Published | null | <parties id="b1478-6">
Roberta BORDEN, etc., Plaintiff, v. CSX TRANSPORTATION, INC.; et al., Defendants.
</parties><br><docketnumber id="b1478-8">
Civ. A. No. 91V-901-N.
</docketnumber><br><court id="b1478-9">
United States District Court, M.D. Alabama, N.D.
</court><br><decisiondate id="b1478-11">
Nov. 29, 1993.
</decisiondate><br><attorneys id="b1481-5">
<span citation-index="1" class="star-pagination" label="1413">
*1413
</span>
J. McGowin Williamson, Williamson and Williamson, Greenville, AL, and John A. Taber, Taber and Dansby, Montgomery, AL, for plaintiff.
</attorneys><br><attorneys id="b1481-6">
Walter A. Byars and William A. Shashy, Steiner, Crum and Baker, Montgomery, AL, for defendants.
</attorneys> | [
"843 F. Supp. 1410"
]
| [
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"opinion_text": "\n843 F.Supp. 1410 (1993)\nRoberta BORDEN, etc., Plaintiff,\nv.\nCSX TRANSPORTATION, INC.; et al., Defendants.\nCiv. A. No. 91V-901-N.\nUnited States District Court, M.D. Alabama, N.D.\nNovember 29, 1993.\n*1411 *1412 *1413 J. McGowin Williamson, Williamson and Williamson, Greenville, AL, and John A. Taber, Taber and Dansby, Montgomery, AL, for plaintiff.\nWalter A. Byars and William A. Shashy, Steiner, Crum and Baker, Montgomery, AL, for defendants.\n\nOPINION\nVARNER, District Judge.\nThis cause is now before the Court on Defendants' Motions for Summary Judgment filed herein August 25, 1993, along with supporting briefs and materials; and on Plaintiff's opposition thereto filed herein September 9, 1993, as amended September 10, 1993, with supporting materials; and on the Motion to Strike filed herein September 17, 1993, by Defendants CSX, National Railroad and Cheatwood. The Court has jurisdiction of this cause pursuant to 28 U.S.C. §§ 1331, 1349, 1441, and 1446.\n\nI. Background\nOn February 16, 1991, a train owned and operated by Defendant National Railroad Passenger Corporation (Amtrak) struck an automobile on Butler County Road 30 in Butler County, Alabama. The collision killed the Plaintiff's intestate, Robert Day Lewis. Plaintiff is Administratrix of Mr. Lewis' estate. Defendant CSX owned and operated the railroad where the collision occurred. Defendant Cheatwood was the engineer of the train. Defendant Butler County Commission (Butler County) is the owner and the governing body with the authority to maintain Butler County Road 30 and all adjacent right-of-ways thereto and up to 50 feet on either side of the railroad track owned by CSX.\nPlaintiff Borden, as Administratrix of the Estate of Robert Day Lewis, filed a two-count Complaint in the Circuit Court of Lowndes County, Alabama, alleging that the negligence and wantonness of Defendants Amtrak, CSX and Cheatwood caused the death of Lewis.[1] Defendants subsequently removed the action to this Court pursuant to 28 U.S.C. §§ 1441 and 1446. Defendants Amtrak, CSX and Cheatwood previously moved for summary judgment on July 1, 1992. By Order dated November 20, 1992, the Court denied the Motion for Summary Judgment in all respects except on the issue of preemption. Later, by Order dated August 5, 1993, the Court denied Defendants' Motion for Summary Judgment on the preemption issue as well. Defendant Butler County was named as a Defendant in this action by Plaintiff's Amended Complaint of July 24, 1992. All Defendants now move for summary judgment asserting, as in the previously filed summary judgment motion, that no genuine issues of material fact exist to establish Defendants' negligence or wantonness as alleged in Counts 1 and 2 of the Amended Complaint. Additionally, Defendants claim that Robert Day Lewis was contributorily negligent as a matter of law, thus entitling Defendants to summary judgment. Alternatively, Defendants argue that federal law preempts Plaintiff's State law claims, which would entitle Defendants to judgment as a matter of law on these claims. All claims in the Complaint appear to be based on the laws of the State of Alabama. Each of these grounds is discussed separately below.\n\nII. SUMMARY JUDGMENT STANDARD\nIn considering a motion for summary judgment, this Court must refrain from deciding material factual issues but, rather, must decide whether such factual issues exist and, if not, whether the party moving for summary judgment is entitled to judgment as a matter of law. See Dominick v. Dixie National Life Ins. Co., 809 F.2d 1559 (11th Cir.1987). Furthermore, all inferences drawn from the underlying facts must be viewed in the light most favorable to the nonmovant. See Tippens *1414 v. Celotex Corp., 805 F.2d 949 (11th Cir.1986). \"Rule 56(c) mandates the entry of summary judgment * * * against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.\" Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); accord Kramer v. Unitas, 831 F.2d 994, 997 (11th Cir.1987). \"[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact\" [emphasis in original]. Anderson v. Liberty Lobby, 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). \"[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a [reasonable] jury to return a verdict for that party * * *. If the evidence is merely colorable * * * or is not significantly probative, summary judgment may be granted.\" Id., at 249-50, 106 S.Ct. at 2510-11; accord Brown v. City of Clewiston, 848 F.2d 1534, 1537 (11th Cir. 1988).\n\nIII. FEDERAL PREEMPTION\nDefendants' initial argument for summary judgment is that Plaintiff's asserted State law claims are preempted by federal law. This issue is largely controlled by the United States Supreme Court's recent decision in CSX Transportation, Inc. v. Easterwood, ___ U.S. ___, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993). In Easterwood the Court addressed the preemptive effect of the Federal Railroad Safety Act of 1970 (\"FRSA\"), 45 U.S.C. §§ 421-447 (1988 & Supp. II 1990).\nThe FRSA contains an express preemption clause which provides, in part:\n\"The Congress declares that laws, rules, regulations, orders and standards relating to railroad safety shall be nationally uniform to the extent practicable. A State may adopt or continue in force any law, rule, regulation, order, or standard relating to railroad safety until such time as the Secretary has adopted a rule, regulation, order, or standard covering the subject matter of such State requirement.\" 45 U.S.C. § 434 (1988).\nThus, the main inquiry on the issue of preemption is whether the Secretary of Transportation has issued regulations covering the same subject matter as the State law pertaining to Plaintiff's claims.\n\nA. GRADE CROSSING CLAIM\nThe Defendants assert that Plaintiff's claims are preempted by federal law. Defendants argue that, under the standards set forth in Easterwood, preemption has occurred because federal funds participated in the design and installation of warning devices at the crossing in question.\nIn Easterwood the Supreme Court specifically addressed preemption of claims based on inadequate warning devices at grade crossings. The Court held that when the provisions of 23 C.F.R. §§ 646.214(b)(3) and (4) \"are applicable, state tort law is preempted.\" Easterwood, ___ U.S. at ___, 113 S.Ct. at 1740-41. In further discussing these provisions, the Court stated:\n\"[U]nder §§ 646.214(b)(3) and (4), a project for the improvement of a grade crossing must either include an automatic gate or receive FHWA approval if federal funds `participate in the installation of the [warning] devices.' Thus, * * * §§ 646.214(b)(3) and (4) displace state and private decision-making authority by establishing a federal-law requirement that certain protective devices be installed or federal approval obtained. Indeed, §§ 646.214(b)(3) and (4) effectively set the terms under which railroads are to participate in the improvement of crossings. * * * § 646.214(b)(4), which covers federally funded installations at crossings that do not feature multiple tracks, heavy traffic, or the like, explicitly notes that railroad participation in the initial determination of `the type of warning device to be installed' at particular crossings is subject to the Secretary's approval. * * * In short, for projects in which federal funds participate in the installation of warning devices,[2] the Secretary has determined *1415 the devices to be installed and the means by which railroads are to participate in their selection. The Secretary's regulations therefore cover the subject matter of state law which * * * seeks to impose an independent duty on a railroad to identify and/or repair dangerous crossings.\" Id., at 1741.\nThe question in this case with respect to the grade crossing claim is whether Defendants have established the preconditions for the application of the above-stated regulations. Defendants rely on an affidavit from the State Traffic Engineer for the Alabama Highway Department, Paul Weldon. The affidavit indicates that the \"signs and pavement markings [on Butler County Road 30] were approved and authorized by the Federal Highway Administration, and federal funds were expended for the design, placement and payment of these signs and pavement markings.\" [Affidavit of Paul Weldon attached to Motion for Summary Judgment of Amtrak, CSX and Cheatwood filed August 25, 1993]. These undisputed facts establish that federal funds participated in the installation of the warning devices at the crossing in issue. Thus, Plaintiff's negligence and wantonness claims are preempted only insofar as such claims are based on the Defendants' failure to provide and maintain adequate warning devices at the crossing. Accordingly, summary judgment on this issue for Defendants is appropriate.\n\nB. VEGETATION CLAIM\nThe issue of whether federal law preempts Plaintiff's claim based on the Defendants' alleged failure to remove vegetation from around the crossing was not briefed by either side. However, because the parties have raised the vegetation issue on other grounds, the Court is inclined to partially dispose of this issue.\nUnder 49 C.F.R. § 213.37 (1992), railroad track owners must keep vegetation on, or immediately adjacent to, the tracks under control. On this issue the Eleventh Circuit Court of Appeals has stated: \"Because the Secretary has chosen to regulate vegetation, Congress explicitly has preempted all state regulation in this area.\" Easterwood v. CSX Transportation, Inc., 933 F.2d 1548, 1554 (11th Cir.1991), aff'd, ___ U.S. ___, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993). However, because these regulations apply only to vegetation on, and immediately adjacent to the railbed, states are free to regulate vegetation beyond the area contemplated by 49 C.F.R. § 213.37. Missouri Pacific Railway Co. v. Railroad Comm. of Texas, 833 F.2d 570 (5th Cir.1987). Accordingly, Plaintiff's claims of negligence and wantonness relating to vegetation immediately on or adjacent to the railroad track are preempted and summary judgment will enter as to Defendant CSX; but to the extent that Plaintiff's claims relate to vegetation on Defendant Butler County's right-of-way near the railroad tracks, beyond the area covered by the federal regulation, these claims are not preempted, and State tort law will apply as to the County's alleged negligence and wantonness.\n\nIV. NEGLIGENCE\nBeyond those claims addressed above, Plaintiff seeks to impose negligence liability against Defendants based upon the alleged (1) failure of the County to remove vegetation near the tracks which obstruct a motorist's view of an oncoming train and (2) failure of CSX, Amtrak and Cheatwood to sound the *1416 train whistle before entering the crossing. There are no applicable federal regulations.\nUnder Alabama law, \"[t]he basic elements of any negligence action are: 1) an obligation owed by the defendant to the plaintiff, 2) a breach of the standard of care applicable to that obligation, 3) causation, and 4) damage.\" Hilliard v. Huntsville Elec. Util. Bd., 599 So.2d 1108, 1110 (Ala. 1992) [quoting Maharry v. City of Gadsden, 587 So.2d 966, 968 (Ala.1991)]. Furthermore, Plaintiff bears the burden of proof in establishing these elements of negligence. See Brown v. Autry, Greer & Sons, Inc., 551 So.2d 1049, 1050 (Ala.1989).\nDefendants, in moving for summary judgment, submit affidavits and photographs of the approach to the scene of the accident. Defendants first submit the affidavit of Alabama State Trooper J.D. Darby, which states: \"I recall that when I arrived at the accident scene it was daytime, there was no fog, rain or smoke and visibility was good.\" [Affidavit of J.D. Darby attached to Brief in Support of Motion for Summary Judgment filed by Defendant Butler County Commission on August 25, 1993]. Darby further states: \"I affirm that there was no underbrush, trees or foliage to obstruct Robert Day Lewis' view from his vehicle as he approached said crossing on February 16, 1991 * * *.\" [Id.] Defendants also submit the affidavit of train engineer M.L. Cheatwood, which states that as the train was approaching the crossing, he was \"blowing the whistle, ringing the bell, and had the headlights on.\" [Affidavit of M.L. Cheatwood attached to Motion for Summary Judgment filed July 1, 1992, at 1-2]. Additionally, Defendants offer the affidavit of Thomas Laurance Stennis, III, who was a passenger on the train. Stennis states that he heard the train whistle blowing just before the train collided with Lewis' car. [Affidavit of Thomas Laurance Stennis, III, attached to Motion for Summary Judgment filed July 1, 1992, at 1]. Finally, Defendants offer the affidavit of Carla Womack. Plaintiff previously offered an affidavit of Ms. Womack made on July 20, 1992, in which she stated: \"On the occasion of this accident, I don't remember hearing a train whistle blow its whistle and I did not know a train was present until I saw it enter the intersection and strike the vehicle in front of me.\" [Affidavit of Carla Womack attached to Plaintiff's Response to Defendants' Motion for Summary Judgment filed July 20, 1992]. Defendants now offer a second affidavit in which Ms. Womack further states: \"I am not saying that the train did not blow its whistle. The train could have sounded its whistle and I didn't hear it, or I don't recall hearing it. I also do not recall hearing the train strike the automobile, although I saw the accident.\" [Affidavit of Carla Womack attached to Defendants Amtrak, CSX and Cheatwood's Motion for Summary Judgment, supra, at 2].\nAlthough Defendants do not specifically note the significance of these affidavits, the Court is of the opinion that these statements tend to show the existence of a material issue of fact, whether the warning whistle was sounded in a timely fashion.\nTo meet this burden, Plaintiff offers a number of affidavits, some of which were previously submitted in her response to Defendants' Motion for Summary Judgment filed July 1, 1992. Plaintiff first offers the July 20, 1992 affidavit of Carla Womack discussed above. Next, Plaintiff offers the affidavit of Jim Hammonds, who lives on County Road 30 in Butler County, west of the railroad crossing where the collision occurred. Mr. Hammonds states that, for \"several years\" prior to the accident, he observed \"dangerous conditions\" at the railroad crossing. [Affidavit of Jim Hammonds attached to Plaintiff's Response to Defendants' Motion for Summary Judgment filed July 20, 1992, at 1]. He also states that it was impossible for a car approaching from the east to see a train approaching from the north \"because of the height of the bank on the north side of the crossing and the vegetation present there.\" [Id.] This condition, according to Mr. Hammonds, created a situation where one \"could not clearly see an approaching train until you pull upon the tracks.\" [Id., at 2].[3]\n*1417 Plaintiff also offers the affidavit of Joe Shealy, a licensed surveyor. Mr. Shealy's affidavit includes a copy of the surveying work done by him and his staff, representing distances and elevations of various points of interest at the accident scene. [Affidavit of Joe Shealy attached to Plaintiff's Amended Response filed September 10, 1993]. Shealy's affidavit, with his map attached, shows a view of the train from all points on the highway within 230 feet of the intersection. The view of the oncoming train is an issue.\nFinally, Plaintiff offers the affidavit of Terry Mullins, an Investigator with the Butler County Sheriff's Department. Mullins previously gave an affidavit in this case in which he identified photographs of the accident scene attached thereto. [Affidavit of Terry Mullins attached to Defendant Butler County's Motion for Summary Judgment, supra]. Plaintiff now offers a second affidavit in which Mullins states:\n\"I did not take any of the photographs that were attached to my Affidavit nor did I make any determination of what angles or distances said photographs were taken. I did not take any measurements to determine any distances. Thus, although the pictures attached to my Affidavit appear to accurately reflect what appears on the photograph, there are places on Butler County Road 30 which a driver traveling west could not see an oncoming train traveling south and I cannot accurately testify at what distance from the railroad track a driver would have a clear line of sight to an oncoming train.\" [Affidavit of Terry Mullins dated September 10, 1993, attached to Plaintiff's Amended Response, supra].\nDefendants filed an objection to the Court's consideration of Mullins' statements that \"there are places on Butler County Road 30 where a driver traveling west could not see an oncoming train,\" and further requests the Court to strike Mullins' September 10, 1993 affidavit. Defendants contend that Mullins' second affidavit is inadmissible as evidence and cannot be used in opposition to Defendants summary judgment motions on the grounds that such is (1) conclusionary, (2) does not state where on County Road 30 a driver could not observe an oncoming train, (3) is not specific in time and place, and (4) does not set forth facts admissible into evidence in violation of Rule 56(e), Federal Rules of Civil Procedure.\nThe Court agrees with Defendants that Mullins' statement that \"there are places on Butler County Road 30 where a driver traveling west could not see an oncoming train\" is not specific in time or place. The statement does not establish where and when such observations were made. The statement also fails to show that such observations were made at a time when the property was in a substantially similar condition to that of the day of the accident. However, these observations are relevant as to the weight of Mullins' observations. Thus, the Motion to Strike filed herein September 17, 1993, by Defendants Amtrak, CSX and Cheatwood is due to be DENIED.\nAs previously indicated by this Court, if the alleged negligence by said Defendants was based solely on allegations of permitting excessive vegetation to grow around the crossing, Defendants, as a matter of Alabama law, might be entitled to summary judgment.\n\"[U]nnecessary obstructions such as trees, bushes, shrubs and tall grass, growing on a railroad right of way, which obstruct the view of a traveler approaching a grade crossing, do not constitute actionable negligence.\" Alabama Great S.R.R. v. Johnston, [281 Ala. 140] 199 So.2d 840, 844 (Ala.1967).\nHowever, Defendants have \"an affirmative duty to put and keep railroad approaches and crossings in proper repair for the use of the traveling public,\" Western Railway v. Still, 352 So.2d 1092, 1095 (Ala.1977), and to \"exercise ordinary care in the operation of its *1418 train.\" Johnston, 199 So.2d at 844.[4] In considering whether Defendants breached any of these duties, a jury may consider the presence of vegetation as a factor in determining negligence. Id.\nIn the present case, Plaintiff has presented evidence that, if believed, would establish that a car approaching the crossing in question could not see an oncoming train because of obstructions created by vegetation growing adjacent to the railroad track. Even though Defendants present photographic evidence that purports to show the absence of excessive vegetation, Defendants fail to provide any evidence indicating the distances and angles at which these photographs were taken. Additionally, the statement by Ms. Womack, that she does not remember hearing a train whistle or bell, creates a reasonable inference that the train may not have sounded its whistle or bell near the crossing.[5] Also, there is no evidence before the Court on whether Ms. Womack, based on the circumstances at the time, should have reasonably heard the train's whistle or bell if it was in fact sounded.\nWhile Defendants submit several affidavits asserting that the view of the crossing was unobstructed and that the train did sound its bell and whistle, these opposing affidavits create a classical factual dispute. This Court cannot consider quality or weight of the evidence issues on motion for summary judgment, as these determinations are properly left for the jury. Rollins v. Tech-South, Inc., 833 F.2d 1525 (11th Cir.1987) [quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)]. Therefore, because there are genuine issues of material fact remaining on the negligence claim, Defendants Amtrak, CSX and Cheatwood's Motion for Summary Judgement is due to be denied as to the issue of negligence, independent of any claims of contributory negligence.\nAs to Defendant Butler County's Motion for Summary Judgment, this Court is of the opinion that Plaintiff has failed to state a cause of action for negligence against Butler County on the vegetation claim. Plaintiff seeks to impose negligence liability on Defendant for its allowing vegetation to grow near the railroad track which allegedly obstructed Lewis' view of an approaching train. As stated above, under Alabama law, unnecessary vegetation growing on a railroad right of way, which obstructs a traveler's view of a grade crossing, does not, within itself, constitute negligence. See Alabama Great S.R.R. v. Johnston, 281 Ala. 140, 199 So.2d 840, 844 (1967). Therefore, as a matter of law, Defendant Butler County is entitled to summary judgment on this issue.\n\nV. Contributory Negligence\nDefendants Amtrak, CSX and Cheatwood alternatively base their motion for summary judgment on acts of alleged contributory negligence by Lewis. Defendants will bear the burden of proof on contributory negligence and proximate cause at trial and, therefore, must establish the absence of genuine *1419 issue of any material fact in order to succeed on their motions.\nDefendants first claim that Lewis was contributorily negligent as a matter of law because, while under the influence of alcohol, he failed to stop at the railroad crossing. This, according to Defendants, violated Lewis' common law duty to \"stop, look, and listen\" at a railroad crossing and his statutory duty to stop at an Alabama stop sign.[6] It is undisputed that Lewis passed warning signs at 1010 feet and 710 feet from the intersection and failed to heed the stop sign and drove his car directly into the path of the train. The only evidence that Lewis attempted to stop is the 58 feet of skid marks he made in an attempt to stop his car before being struck by the train. [Affidavit of J.D. Darby, supra]. Plaintiff's own witness, Carla Womack, states that the car Lewis was driving \"was slowing but * * * never did come to a complete stop.\" [July 20, 1992 Affidavit of Carla Womack, supra]. Nevertheless, these undisputed facts, alone, may not establish that Defendants are entitled to judgment as a matter of law.\nIn Burlington N.R.R. v. Whitt, 575 So.2d 1011, 1021 (Ala.1990), the Alabama Supreme Court required proof of the elements of contributory negligence as alleged to include knowledge and appreciation of danger as well as the failure to exercise due care. Applying this standard in Burlington, the Alabama Supreme Court found that contributory negligence was a jury question, even though the undisputed facts, as here, established that the decedent did not stop prior to the collision with the train. Id. Indeed, both the Alabama Supreme Court and the Eleventh Circuit Court of Appeals have recognized that Alabama's duty to stop, look, and listen \"is not hard, fast, or absolute in its application.\" Stallworth v. Illinois Cent. Gulf R.R., 690 F.2d 858 (11th Cir.1982) [quoting Alabama Great S.R.R. v. Johnston, 281 Ala. 140, 199 So.2d 840, 848 (Ala.1967)]. Instead, the courts have required that those approaching a railroad crossing \"use ordinary care and prudence to discover the approach of trains.\" Id. [quoting McCullough v. Louisville & N.R.R., 396 So.2d 683, 686 (Ala.1981)]. Some of the discussions about a distinction between assumption of risk and contributory negligence which appear in various cases for a period of some years have been confusing in that they seem to imply that contributory negligence and assumption of risk as defenses were either identical or very nearly identical. The Supreme Court in the case of Slade v. City of Montgomery, 577 So.2d 887, 892-893 (Ala.1991), seemed to clarify the distinction made.\nThe original cases on contributory negligence in Alabama were uniform in saying that contributory negligence is negligence (or a want of due care) on the part of the plaintiff which proximately contributed to the alleged injury. The Slade Court distinguishes this from a more complicated definition of contributory negligence in another type case as follows:\n\"Slade argues that the trial court failed to correctly define `contributory negligence' for the jury and that the evidence presented at trial did not merit an instruction on contributory negligence.\n\"In the present case, the record reflects that that trial court defined contributory negligence for the jury in the following manner: `Contributory negligence, of course, is negligence on the part of the plaintiff, Mr. Slade, which proximately contributed to the alleged injury.' Slade asserts that contributory negligence should have been defined for the jury as consisting of: (1) knowledge by the plaintiff of a dangerous condition; (2) the plaintiff's appreciation of the danger; and (3) thereafter, the plaintiff's failure to exercise reasonable care.\n\"In Cooper v. Bishop Freeman Co., 495 So.2d 559 (Ala.1986), overruled on other grounds, Burlington N.R.R. v. Whitt, 575 So.2d 1011 (Ala.1990), we pointed out that this court has continued to recognize a distinction between assumption of risk and contributory negligence as defenses to actions in simple negligence. We further *1420 noted in Cooper that, in Alabama, the term `assumption of risk' has been used to describe a form of contributory negligence applicable to factual situations in which it is alleged that the plaintiff failed to exercise due care by placing himself or herself into a dangerous position with appreciation of a known risk. The elements of [such] assumption of risk are: (1) knowledge by the plaintiff of the condition; (2) appreciation by the plaintiff of the danger under the surrounding conditions and circumstances; and (3) the plaintiff's failure to exercise reasonable care in the premises, and, with such knowledge and appreciation, the plaintiff's putting himself into the way of danger. Baptist Medical Center v. Byars, 289 Ala. 713, 271 So.2d 847 (1972). On the other hand, contributory negligence, in the context of actions in simple negligence, is negligence on the part of a plaintiff that proximately contributes to the plaintiff's injury [emphasis added]. Cooper, supra.\n\"At trial, the city was not attempting to make use of the assumption of risk defense; rather, the city was attempting to assert the affirmative defense of contributory negligence as a defense to a simple negligence action. The record reveals that Slade testified that, although he was walking in the gutter at the edge of the street, he had no reason to feel that he needed to be careful. Furthermore, the evidence revealed that Slade occasionally mowed the grass around the location of the sewer grate and that Slade or other members of his family placed their garbage can on the curb directly above the sewer grate approximately twice each week. Although Slade was not under a duty to keep a vigilant watch for unknown defects and obstructions that cannot be observed by the use of ordinary care, he was required to exercise such ordinary care as the situation on the whole would lead a reasonably prudent person to observe in respect to conditions immediately ahead. See Jacks v. City of Birmingham, 268 Ala. 138, 105 So.2d 121 (1958). In view of the above, we find no error in the trial court's instructions to the jury on the issue of contributory negligence.\" Slade, supra, at 892-893.\nThis Court, therefore, concludes that the test for contributory negligence as an affirmative defense to a simple negligence action as in the above-styled case is whether or not the Plaintiff's intestate, Mr. Lewis, acted as a reasonable person with due care and, if not, whether or not his lack of due care (his negligence) proximately contributed to his injury. See also, Sprouse v. Belcher Oil Co., 577 So.2d 443, 444 (Ala.1991); Gulledge v. Brown & Root, 598 So.2d 1325 (Ala. 1992). In Gulledge, the Court noted that, although the question of the existence of contributory negligence is normally one for the jury, \"contributory negligence may be found to exist as a matter of law when the evidence is such that all reasonable people must reach the same conclusion * * *\" that the plaintiff was negligent (or failed to exercise reasonable care) and that such negligence was a proximate cause of the injury. Gulledge, supra, 598 So.2d at 1326-1327. \"If Plaintiff had knowledge of facts sufficient to warn a man of ordinary sense and prudence of the danger to be encountered, and of the natural and probable consequences of his own conduct in the premises, then he was guilty of negligence if he failed to exercise ordinary care to discover and avoid the danger and the injury.\" Gulledge, supra, 598 So.2d at 1327, quoting Alabama Power Co. v. Mosley, 318 So.2d 260, 263, quoting Dwight Mfg. Co. v. Word, 200 Ala. 221, 225, 75 So. 979, 983 (1917).\nWhile the general rule on this \"ordinary care\" requires that one stop, look, and listen at railroad crossings, \"an exception arises when the evidence is such that a reasonable jury could determine that some peculiar environment or hazardous condition made the failure to stop not negligent.\" Stallworth, supra, 690 F.2d at 865 [citing Alabama Great S.R.R. v. Johnston, 281 Ala. 140, 199 So.2d 840 (1967)]. Here, Plaintiff argued that she has presented evidence that, if believed, would establish that one could not see an approaching train without pulling onto the tracks. See Callaway v. Adams, 40 So.2d 73 (Ala.1949) (special conditions of topography, grade, and course of highway prevented notice of train's presence until on track). That theory has apparently been *1421 abandoned or so discredited, as hereinafter pointed out, as to be of no reasonable credibility. There was no substantial evidence from which a reasonable jury could find that Lewis was not negligent in failing to stop before the crossing. The 58-foot skid mark made by Lewis' car is undenied evidence that he had notice of the danger before he reached the tracks. Alabama Great So. R.R. v. Johnston, supra, and Callaway v. Adams, supra, are, therefore, inapposite. See also the pictures and the testimony of Deputy Sheriff Mullins attached to the brief in support of the Motion for Summary Judgment filed August 25, 1993, by Defendant County and the sketch of the scene of the accident made by Plaintiff's own surveyor, Joe Shealy [see Shealy Affidavit attached to Plaintiff's Amended Opposition filed September 10, 1993, to Motion for Summary Judgment]. The sketch and pictures of the warning signs show clearly that one approaching the railroad along County Road 30, as was Plaintiff's intestate on the day in question, would, upon reaching a point 234 feet from the crossing, be able to see the train.\nDefendants next argue that Lewis was contributorily negligent as a matter of law because he was intoxicated at the time of the accident, in violation of Ala.Code § 32-5A-191. In support of this claim, Defendants present unrebutted evidence that Lewis had been drinking the day of the accident and that his blood alcohol level was .162%. [Affidavit of M.T. Barnhill, Jr., Ph.D. attached to Motion for Summary Judgment, supra, at 2].[7]\nOnce the defendants make a prima facie showing of contributory negligence, the plaintiff must rebut that showing by offering substantial evidence that plaintiff acted with reasonable care. The record in the case at bar is bare on the question of the defensive processes of the Plaintiff's intestate except for the fact that he did skid for 58 feet before the train hit him. This is not substantial evidence that Plaintiff's intestate acted with ordinary care. It does show that, at some point prior to running the stop sign at the railroad track, he did have consciousness that the train was in the area and that he should have followed directions of the warning signs to avoid injury. The associated undenied evidence of the warning signs, well back from the 58-foot mark, and of Mr. Lewis' drunkenness show clearly that Mr. Lewis ignored the legally prescribed warnings displayed on the highway and proceeded in his intoxicated condition for far too long and until his injury was a preconceived certainty.\nA concurrence of these undenied facts, in this Court's opinion, establishes that Lewis was negligent as a matter of law. However, this negligence is not a bar to recovery unless it is shown to be a proximate contributing cause of the collision. Hallman v. Summerville, 495 So.2d 626, 627 (Ala. 1986).\nThis Court notes that the Plaintiff in the above-styled cause accuses Defendant County of not maintaining a clear right-of-way at the intersection, the site of the fatal accident in question, and accuses Defendant CSX Railroad with not having sounded its whistle at its approach to the railroad crossing.\nThe evidence is undenied that approaching the intersection in question the Plaintiff's intestate passed a yellow and black railroad advance warning sign displayed 1010 feet from the crossing, then passed a yellow diamond-shaped \"stop ahead\" sign 710 feet from the crossing and drove out on the railroad tracks past a railroad crossbuck sign and a State Highway intersection stop sign into the path of the advancing train. It is also undenied that, at the time the Plaintiff's intestate committed these acts, his blood alcohol content was .162 percent. The Court notices that driving under the influence of alcohol is prohibited by CODE OF ALABAMA [1975], § 32-5A-191, which created an undenied presumption that Plaintiff's intestate was violating the law and was, therefore, prima facie negligent at the time of the accident; that he failed to stop at a State of Alabama stop sign in violation of §§ 32-5A-112 and 32-5A-31 of the CODE OF ALABAMA; and that, upon *1422 approaching the railroad crossing, he failed to stop, look and listen as required by the crossbuck sign at the track. All this evidence is undenied.\nThe courts have ruled that, generally, a common-law duty exists for one to stop, look and listen before entering on a train track at an intersection. Southern Railway Co. v. Carter, 276 Ala. 218, 160 So.2d 628 (Ala.1963); Stallworth v. Illinois Central Gulf Railway, 690 F.2d 858 (11th Cir.1982). The court also notes that, generally speaking, one who is driving under the influence of alcohol or one who runs a stop sign is considered to be negligent per se. Simpson v. Glenn, 264 Ala. 519, 88 So.2d 326; Carroll v. Deaton, 555 So.2d 140, 141 (Ala.).\nWhile any one or more of these violations would constitute negligence per se or be prima facie evidence of negligence, there is in this case no evidence that the Plaintiff's intestate was not negligent when he passed the two advance railroad warning signs or when he drove past the crossbuck sign and the stop sign out onto the tracks in front of the oncoming train. In the opinion of this Court, Plaintiff's intestate clearly was contributorily negligent in disregarding while under the influence of alcohol all of the warnings and the stop signs in question and in not discovering a train which he could have seen for over 186 feet or 62 yards before his skid marks began, according to Shealy's map offered by Plaintiff. The Plaintiff is unable to offer any evidence that her intestate was not negligent or that the presumption of negligence is not applicable to control this case. Negligence, of course, depends upon all of the circumstances, but the additional circumstances about the case do not help the Plaintiff. The Plaintiff's own surveyor's sketch shows there was a clear view of the top of the train from the highway for 234 feet before the Plaintiff's intestate entered the crossing. This was confirmed by the testimony of Deputy Sheriff Mullins attached to Defendant County's brief filed August 25, 1993. Testimony that no whistle was blown is equivocal from Ms. Womack and is unequivocally denied by the engineer and a passenger from the train. That the Plaintiff's intestate did finally see the train before the crossing is reasonably confirmed by the evidence that he did put on his brakes and skidded the last 58 feet before the train struck him in the intersection. Plaintiff's intestate was proceeding after several warnings at such a speed that he was unable to stop within the last 58 feet before the intersection.\nDefendants cite the recent Alabama Supreme Court decision in Middaugh v. City of Montgomery, 621 So.2d 275 (Ala.1993), 621 So.2d 272, for the proposition that summary judgment should be granted on the issue of contributory negligence because there is no evidence that Lewis ever looked up the railroad track or attempted to do so before the collision and that Lewis' negligence was the sole proximate cause of the accident and his death. This Court finds, for reasons discussed more fully in footnote 9 hereof, that no reasonable juror could find that Lewis' contributory negligence was not the sole proximate cause of the accident and death here in question.\n\nVI. Wantonness\nDefendants also move for summary judgment on Plaintiff's wantonness claim, stating that \"Plaintiff has presented no evidence whatsoever to establish that Defendant[s] acted wantonly.\" [Defendant Butler County's Brief, supra, at 7; Defendants Amtrak, CSX and Cheatwood's Brief, supra, at 12 n. 8]. Plaintiff would bear the burden of proof on this issue at trial and must now establish the existence of a genuine issue of material fact in order to defeat Defendants' Motions for Summary Judgment. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.\nTo meet this burden, Plaintiff submits the affidavits of Carla Womack (July 20, 1992) and Jim Hammonds, discussed in Part IV. Mr. Hammonds' affidavit, in addition to the statements already mentioned, states that in 1989 or 1990 he had and reported by telephone, a \"near miss\" at the railroad crossing in question to some unidentified person, and that no improvements have been made to the crossing since then which improved visibility. [Affidavit of Jim Hammonds, supra, at 2].[8]\n*1423 The Court must consider now whether the two affidavits offered are sufficient to create a genuine issue of material fact concerning wantonness. Under Alabama law, wanton conduct is the \"conscious doing of some act or the omission of some duty (by one who has) knowledge of the existing conditions, and (who is) conscious that from the doing of such act or omission of such duty injury will likely or probably result.\" Rommell v. Automobile Racing Club of America, Inc., 964 F.2d 1090, 1096 (11th Cir.1992) [quoting Copeland v. Pike Liberal Arts School, 553 So.2d 100 (1989)]. When a person having knowledge of existing conditions and circumstances and being conscious that his conduct will likely result in injury, yet \"acts with reckless indifference or disregard of the natural or probable consequences of his act or failure to act,\" his conduct is wanton. Id. Knowledge of conditions and consciousness of the likelihood of injury may be inferred. Stallworth v. Illinois Cent. Gulf R.R., 690 F.2d 858, 863 (11th Cir.1982) [citing Myers v. Evans, 255 So.2d 581, 583 (Ala. 1971)]. Furthermore, what constitutes wanton conduct depends on the facts of each case, and must be based upon more than mere negligence. Rommell, 964 F.2d at 1096. The most that can be reasonably inferred adverse to the Defendants is that no whistle was blown. There was no evidence of knowledge that any person would ignore the four warning signs and enter the crossing or of knowledge that any person was driving under the influence of alcohol.\nIn order to prevail on the wanton conduct claim, Plaintiff must show that Defendants had knowledge of dangerous conditions at the crossing, and that Defendants acted with reckless indifference or disregard of the likelihood of injury. To prevail against Defendants Amtrak, CSX and Cheatwood, \"the plaintiff must show knowledge and wanton actions by the crew charged with the operation of the train.\" Radford v. Seaboard System R.R., Inc., 828 F.2d 1552, 1553 (11th Cir.1987) (citations omitted). Applying that rule to this case, there is no evidence that the railroad crew knew of the alleged dangerous conditions at the crossing or that the conditions were dangerous, and there was no evidence of reckless indifference, or likelihood of injury prior to Lewis' illegal disregard of obvious warnings. The testimony of Ms. Womack, if believed, establishes only that she did not recall hearing any whistle as the train approached the crossing. This testimony may represent evidence of negligence but not substantial evidence of wantonness as required to defeat summary judgment. Additionally, the Supreme Court's Middaugh ruling, that the driver in that case, while driving under the influence and ignoring a stop sign, thereby displayed negligence which, although there were some arguments to the contrary, was the sole proximate cause of that accident, mandates that this Court find that Plaintiff's intestate's negligence, independent of Defendants' negligence or wantonness, if any, was the sole proximate cause of subject accident.[9] This *1424 Court is of the opinion that reasonable jurors could not disagree with the conclusion that none of the Defendants was wanton and that any Defendant's wantonness or negligence, if any, was not a proximate cause of the accident here considered and, therefore, finds that summary judgment is proper against Plaintiff and for all Defendants.\nAdditionally, Plaintiff has presented no admissible evidence that Defendant Butler County had knowledge of the alleged dangerous condition of the crossing. Thus, Plaintiff has failed to establish the existence of a genuine issue of material fact required to defeat Defendant Butler County's Motion for Summary Judgment.\nAn Order will be entered in accordance with this Opinion.\nNOTES\n[1] As hereafter mentioned, Defendant Butler County was subsequently added by amendment.\n[2] The definition of warning devices provided in the federal regulations states, in relevant part:\n\n\"(i) Passive warning devices means those types of traffic control devices, including signs, markings and other devices, located at or in advance of grade crossings to indicate the presence of a crossing but which do not change aspect upon the approach or presence of a train.\"\n23 C.F.R. § 646.204(i). In the present case, passive warning devices including the following were present at the crossing in question:\n\"1. A yellow and black railroad advance warning sign located approximately 1,010 feet from the crossing;\n\"2. A yellow diamond-shaped \"Stop Ahead\" sign located 710 feet from the railroad crossing;\n\"3. A red Alabama stop sign located adjacent to the railroad crossing;\n\"4. A crossbuck sign located adjacent to the crossing.\n[Affidavit of J.D. Darby attached to Brief in Support of Motion for Summary Judgment filed by Defendant Butler County Commission on August 25, 1993].\n[3] As previously indicated by this Court: \"While Hammonds' statement that the crossing was `dangerous' was conclusory, his additional statements, that the height of the bank and the vegetation prevented one from seeing an approaching train, are specific factual assertions pertinent to a possible factual conclusion that [one or more Defendants] maintained a dangerous condition.\" [Order of November 20, 1992, at 9].\n[4] An engineer or operator of a railroad locomotive has a duty to blow a horn or whistle or ring a bell while approaching a railroad crossing. Ala.Code § 37-2-81(1) (Supp.1991). This Court in its prior Order of November 20, 1992 held that this statutory duty to ring a bell or whistle is not applicable to Defendant Amtrak pursuant to Ala. Code § 37-2-2 (Supp.1991). However, this exclusion from statutory coverage does not exempt Amtrak from the common-law duty to \"exercise ordinary care in the operation of its train.\" Johnston, 199 So.2d at 844.\n[5] Defendants cite Alabama cases for the proposition that there is no substantial conflict that the bell or whistle was sounded. However, in those cases the claimants positively testified that they heard no bell or whistle. In the present case, Ms. Womack states in her affidavit: \"I am not saying that the train did not blow its whistle. The train could have sounded its whistle and I didn't hear it, or I don't recall hearing it.\" [August 25, 1993 Affidavit of Carla Womack, supra]. Her statement creates an inference in this case that the whistle may not have sounded at all. \"While generally positive testimony (such as I heard the whistle) is better than negative testimony (such as I did not hear the whistle) the district court may not accept positive testimony to the exclusion of negative testimony on a motion for summary judgment. It is a credibility question whether one witness' memory is more reliable than another witness' memory, and such credibility determinations are not to be made on a motion for summary judgment.\" Easterwood, 933 F.2d at 1560 n. 14 [citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)].\n[6] See Ala.Code §§ 32-5A-31 and 32-5A-112 (1975). Stallworth v. Illinois Central Gulf R.R., 690 F.2d 858 (11th Cir.1982).\n[7] CODE OF ALABAMA [1975], § 32-5A-194(b)(3) provides: \"If there were at that time 0.10 percent or more by weight of alcohol in the person's blood, it shall be presumed that the person was under the influence of alcohol.\"\n[8] Hammonds' affidavit states that after his near miss he telephoned Defendant CSX Transportation, spoke with a man who answered the phone, and \"informed him of the dangerous condition of that particular crossing,\" and that the man responded that he \"would report it to the appropriate authorities with the railroad who could alleviate the problem.\" [Hammonds Affidavit, supra, at 2]. Defendants objected to these statements and moved to strike this portion of Hammonds' affidavit. This Court in its November 20, 1992 Order found that such statements were hearsay and not admissible to prove that any agent of any Defendant knew that the crossing was dangerous. Additionally, Hammonds' statement to whomever made was an inadmissible conclusion at best. Thus, such statements will not be considered by this Court in ruling on the Defendants' summary judgment motions.\n[9] As recently as May 14, 1993, the Supreme Court of Alabama recognized that there are circumstances justifying the grant of summary judgment on the basis of a plaintiff's negligence. In Middaugh v. City of Montgomery, supra, 621 So.2d at 278, the Alabama Court affirmed a summary judgment for all defendants against all plaintiffs when the plaintiffs' \"* * * driver (Meadows), being under an influence of an alcoholic beverage, failed to yield the right-of-way to the Freightliner tractor-trailer truck, (and) entered the intersection causing the tractor-trailer truck to collide with the * * * (automobile driven by Meadows) * * *.\" The Court pointed out that, \"The Middaughs offered no evidence to rebut the evidence that (the driver) failed to heed the stop sign and drove his car directly into the path of McGhee's truck.\" There was some evidence which the Supreme Court found was not substantial, which plaintiffs argued had presented material factual issues (1) whether evidence of the speed of the truck contributed to the accident, (2) whether an advertising sign which might have blocked Meadows' view of the approaching truck was a contributing factor, and (3) whether the driver of the plaintiffs' automobile was under the influence of alcohol. While contributory negligence was not pleaded, the Supreme Court found:\n\n\"The overwhelming weight of the evidence, however, shows that Meadows (Plaintiffs' driver) had been drinking alcoholic beverages before he drove that evening, that he was intoxicated at the time he drove, and that he failed to heed a stop sign and drove into the path of McGhee's vehicle. * * * [W]e must conclude that the Middaughs failed to present substantial evidence to rebut the prima facie showing that the accident was caused solely by Meadows' (plaintiffs' driver) failure to observe the stop signs\" [emphasis added]. Middaugh, 621 So.2d at 280-281.\nThis Court is of the opinion that, while differences exist between the cases, the Middaugh case is controlling of the instant case as to both contributory negligence and sole proximate cause. In Middaugh, as here, the driver Lewis [Plaintiff's intestate] disobeyed a stop sign, thereby providing Defendants with prima facie evidence of his negligence. Also, as here, there was substantial evidence (a statutory inference) that Lewis was under the influence of alcohol. The Alabama Supreme Court in Middaugh found that plaintiffs' driver was negligent and that his (contributory) negligence was the sole proximate cause of the accident. The instant case is more favorable to the Defendants than Middaugh as the photographs in the instant case show clear visibility of not only the stop sign, but also the warning signs at 1010 feet and 710 feet and the crossbuck sign at the intersection. Additionally, there was in this case absolutely no evidence that Plaintiff's intestate was not intoxicated, and there was undenied evidence that he had knowledge of his danger within 58 feet of the intersection, if not before. This evidence convinces this Court that any reasonable juror would find that Mr. Lewis was negligent and that said negligence was the sole contributing proximate cause of the accident and injury in this case. Accordingly, summary judgment as to the defense of contributory negligence should and will be entered for the Defendants and against the Plaintiff in this cause. Additionally, the finding in Middaugh indicates clearly that, since the drinking driver's failure to stop in that case was the sole proximate cause of that accident, then the drinking driver's failure in the instant case to heed the warning signs and stop at the stop signs was the sole proximate cause of the instant accident and that, if a Defendant in the instant case had been wanton or negligent, such wantonness or negligence could not have been a proximate cause of the subject accident. Accordingly, summary judgment must issue for all Defendants in this cause.\n\n",
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| M.D. Alabama | District Court, M.D. Alabama | FD | Alabama, AL |
2,672,253 | null | 2014-02-07 | false | guzman-v-piercy-canyon-county-sutton | Guzman | Guzman v. Piercy / Canyon County / Sutton | null | null | null | null | null | null | null | null | null | null | null | null | 0 | Published | null | null | null | [
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"download_url": "http://www.isc.idaho.gov/opinions/39708FIX.pdf",
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"opinion_text": " IN THE SUPREME COURT OF THE STATE OF IDAHO\n Docket No. 39708\n\nLUIS JESUS GUZMAN, individually, )\n )\n Plaintiff-Defendant-Respondent, )\n )\nv. )\n ) Boise, December 2013 Term\nDALE PIERCY, individually, )\n ) 2014 Opinion No. 10\n Defendant-Plaintiff-Appellant, )\n ) Filed: February 7, 2014\nv. )\n ) Stephen W. Kenyon, Clerk\nCANYON COUNTY, )\n )\n Defendant-Respondent, )\n )\nand )\n )\nJENNIFER L. SUTTON, individually, )\n )\n Defendant-Respondent. )\n________________________________________\n\n Appeal from the District Court of the Third Judicial District of the State of Idaho,\n Canyon County. Hon. Bradley S. Ford, District Judge.\n\n The decision of the district court is affirmed. Costs are awarded to respondents.\n\n Saetrum Law Offices, Boise, attorneys for appellant, Rodney R. Saetrum argued.\n\n Chasan & Walton, LLC, Boise, attorneys for respondent Guzman, Andrew M.\n Chasan argued.\n\n Elam & Burke, PA, Boise, attorneys for respondent Sutton, Joshua S. Evett\n argued.\n\n Canyon County Prosecuting Attorney, Caldwell, attorney for respondent\n Canyon County, Zachary J. Wesley argued.\n ______________________________________\n\nSchroeder, J. pro tem\n I.\n NATURE OF THE CASE\n\n 1\n\f Dale Piercy appeals the district court’s dismissal of his amended action for declaratory\nrelief, which challenged the validity of a herd district ordinance enacted in 1982 by the Canyon\nCounty Commissioners. The district court dismissed Piercy’s claim on the basis that it was\nbarred by a seven-year statute of limitations or, in the alternative, a four-year statute of\nlimitations. Piercy challenges the application of both statutes and maintains that Respondents\nJennifer Sutton, Luis Guzman, and Canyon County waived any statute of limitations defense.\n II.\n FACTUAL AND PROCEDURAL BACKGROUND\n In March 2005, Piercy pastured several bulls in a field south of Parma, Idaho. One of his\nbulls escaped the pasture. On April 20, 2005, Sutton struck one of the bulls while driving her\nvehicle on Wamstad Road. Sutton’s passengers Erika Rivera 1 and Luis Guzman were injured in\nthe collision.\n On May 4, 2005, Guzman filed a negligence action against Piercy. Subsequently,\nGuzman filed an amended complaint adding Sutton as a co-defendant. Among other defenses,\nPiercy claimed he was “entitled to the protection of Idaho’s Open Range statutes and\nimmunities,” including I.C. § 25-2118, which grants the owner of any domestic animal immunity\nfrom a negligence action arising from the animal’s lawful presence on a highway.\n On May 1, 2007, Piercy filed a motion for summary judgment. He challenged the validity\nof an ordinance passed by the Canyon County Commissioners on December 10, 1982, which\nestablished a herd district in the area where the bull was pastured. If valid, the existence of the\nherd district would deprive Piercy of the immunity under the open range statute, I.C. § 25-2118.\nPiercy argued that the herd district ordinance was invalid because the Canyon County\nCommissioners failed to follow the procedures required by I.C. §§ 25-2402 to -2404 to enact a\nlawful herd district ordinance.\n Sutton and Guzman opposed Piercy’s motion for summary judgment. Guzman\nmaintained that the herd ordinance was presumed valid under I.C. § 31-857, which establishes a\npresumption of validity for all proceedings and jurisdictional steps in enacting a herd district\nafter two years from the date of the ordinance. Guzman also argued that the doctrine of quasi\nestoppel barred Piercy from challenging the validity of the herd district ordinance. Sutton\n\n\n1\n Rivera and Piercy settled and the court dismissed Rivera’s claims with prejudice in February 2008. Rivera is no\nlonger a party in this action.\n\n 2\n\fmaintained that the district court should order Piercy to join Canyon County before rendering a\ndecision, thereby allowing Canyon County to defend its ordinance. Sutton also argued that the\ndoctrine of estoppel by laches precluded Piercy’s challenge of the herd district ordinance.\n On October 9, 2007, the district court denied Piercy’s motion for summary judgment,\nbecause Piercy “failed to overcome the presumption of validity of the herd districts because\ngenuine issues of material fact exist.” The district court agreed with Sutton and ordered Sutton to\njoin Canyon County as a third-party defendant, determining that Canyon County “needs to be a\npart of this litigation for the limited purpose of fully developing the validity of herd districts in\nthe area Piercy’s bull escaped and in the area where the collision with the bull took place.”\nSutton filed an action for declaratory judgment pursuant to I.C. § 10-1201 and I.C. § 10-1202\nand joined Canyon County in the action. Subsequently, the district court denied Guzman’s\nassertion of quasi estoppel and Sutton’s assertion of the doctrine of laches.\n Prior to the trial the parties stipulated to amend pleadings and scheduling “to simplify the\nprocedural posture of the case and to have the pleadings accurately reflect the positions of the\ndifferent parties.” In the stipulation the parties made numerous requests, including a request that\nPiercy be recognized as the plaintiff and Sutton, Guzman, and Canyon County as the defendants.\nThey also asked the district court to allow Piercy to file an amended action for declaratory relief.\nThe parties requested that Respondents “may Answer the Amended Action for Declaratory\nRelief filed by Mr. Piercy as provided for in the Idaho Rules of Civil Procedure.” Finally, the\nparties requested that Respondents “waive any defenses they may have regarding the timing of\nthe filing of Mr. Piercy’s Amended Action for Declaratory Relief.” The district court granted the\nparties’ requests.\n On September 11, 2008, Piercy filed his amended action for declaratory relief, asking the\ndistrict court to declare the herd district ordinance invalid. Guzman’s and Sutton’s answers\nincluded a statutes of limitations defense based on I.C. § 5-224, and Guzman again raised the\ndoctrine of equitable estoppel and doctrine of estoppel by laches as affirmative defenses. Sutton\nagain raised estoppel by laches, estoppel by waiver, and equitable estoppel. Canyon County’s\nanswer asserted that I.C. § 31-857, which establishes the two-year presumption of validity, “in\neffect, created a limited statute of limitations.” In Guzman’s and Sutton’s post-trial briefs, they\nalso argued that the statutes of limitations in I.C. § 5-224 barred Piercy’s declaratory action to\nchallenge the herd district ordinance.\n\n 3\n\f The district court issued an order on January 21, 2009, determining that the herd district\nordinance was invalid for failing to comply with the statutory procedures in I.C. §§ 25-2401 to -\n2404. Thus, the district court held neither Guzman nor Sutton “may rely upon the existence of a\nherd district at the location of their involvement in a collision” with the bull. The district court\ndid not address the statute of limitations issue.\n On May 5, 2009, Piercy filed a second motion for summary judgment, arguing that the\ndistrict court should dismiss Guzman’s negligence action because Piercy owed no duty to\nGuzman based on the district court’s order in the declaratory action that the bull was pastured in\nan open range area. Guzman and Sutton opposed the motion and moved for reconsideration of\nthe district court’s order in the declaratory action. They asked the district court to reconsider the\napplication of the statute of limitations in I.C. § 5-224.\n On December 4, 2009, the district court granted Sutton’s and Guzman’s motions for\nreconsideration. Guzman and Sutton again asserted that the four-year statute of limitations in I.C.\n§ 5-224 barred Piercy’s declaratory action challenging the herd district ordinance. They also\ncontended that a recent amendment to I.C. § 31-857 applied retroactively to Piercy’s declaratory\naction. That amendment, enacted on March 23, 2009, and effective on July 1, 2009, added a\nseven-year statute of limitations to the existing two-year presumption of validity in I.C. § 31-\n857. Specifically, the amendment stated: “No challenge to the proceedings or jurisdictional steps\npreceding such an order, shall be heard or considered after seven (7) years has lapsed from the\ndate of the order.” I.C. § 31-857. Piercy responded that Guzman and Sutton waived any statute of\nlimitations defense, that I.C. § 31-857 did not apply retroactively to his action, and that the\nstatute violated his procedural and substantive due process rights.\n The district court denied Guzman and Sutton’s quasi estoppel and estoppel by laches\ndefenses. However, the district court held that I.C. § 31-857 applied retroactively to bar Piercy’s\ndeclaratory action challenging the herd district ordinance. In the alternative, the district court\nheld that the statute of limitations in I.C. § 5-224 applied to Piercy’s declaratory action. In\naddition, the district court determined Piercy’s constitutional challenges to I.C. § 31-857 were\n“misguided.” In conclusion, the district court vacated and reversed its finding that the herd\ndistrict ordinance was invalid. The district court dismissed Piercy’s declaratory action with\nprejudice and asked Sutton or Guzman to submit a proposed judgment.\n\n\n\n 4\n\f Following a stipulation by the parties, the district court certified the dismissal of Piercy’s\ndeclaratory action as a final judgment pursuant to Idaho Rule of Civil Procedure (IRCP) 54(b).\nPiercy filed a notice of appeal and Guzman and Sutton filed notices of cross-appeal. Canyon\nCounty did not cross-appeal. Sutton waived her cross-appeal in her brief before this Court. 2\n III.\n ISSUES ON APPEAL\n1. Whether Respondents waived a statute of limitations defense to Piercy’s declaratory\n action challenging the validity of the herd district ordinance.\n2. Whether the statute of limitations in I.C. § 31-857 or I.C. § 5-224 bar Piercy’s declaratory\n action challenging the validity of the herd district ordinance.\n3. Whether the Court should correct a statement in the district court’s order dismissing\n Piercy’s declaratory action.\n IV.\n STANDARD OF REVIEW\n The Court exercises free review over questions of law and matters of statutory\ninterpretation. Intermountain Real Props., L.L.C. v. Draw, L.L.C., 155 Idaho 313, 317–18, 311\nP.3d 734, 738–39 (2013). In particular, “[t]he determination of the applicable statute of\nlimitation is a question of law over which this Court has free review.’” Farber v. Idaho State Ins.\nFund, 152 Idaho 495, 497, 272 P.3d 467, 469 (2012) (quoting Hayden Lake Fire Prot. Dist. v.\nAlcorn, 141 Idaho 388, 403, 111 P.3d 73, 88 (2005)).\n The Court exercises free review over the determination and legal effect of a provision in\na stipulation. See Maroun v. Wyreless Sys., Inc., 141 Idaho 604, 611, 114 P.3d 974, 981 (2005).\n When reviewing the constitutionality of a statute, this Court exercises free\n review. To prevail, a challenger must show that the statute is “unconstitutional as\n a whole, without any valid application.” This Court makes “every presumption [ ]\n in favor of the constitutionality of the statute, and the burden of establishing the\n unconstitutionality of a statutory provision rests upon the challenger.”\nCitizens Against Range Expansion v. Idaho Fish & Game Dep’t, 153 Idaho 630, 633–34, 289\nP.3d 32, 35–36 (2012) (alteration in original) (quoting Idaho Schs. For Equal Educ. Opportunity\nv. State, 140 Idaho 586, 590, 97 P.3d 453, 457 (2004)).\n V.\n\n\n\n2\n Guzman’s cross-appeal is also waived because Guzman relied solely on Sutton’s brief for Guzman’s cross-appeal\nargument. See Bach v. Bagley, 148 Idaho 748, 790, 229 P.3d 1146, 1152 (2010).\n\n 5\n\f Respondents Did Not Waive A Statute Of Limitations Defense To Piercy’s Declaratory\n Action Challenging The Validity Of The Herd District Ordinance.\n Even though Sutton and Guzman raised a statute of limitations defense based on I.C. § 5-\n224 in their answers to Piercy’s amended action for declaratory relief, Piercy claims that they\nwaived a statute of limitations defense.\n A threshold question is which statute of limitations defense Piercy claims Respondents\nwaived. The four-year statute of limitations in I.C. § 5-224 has been in effect since the start of\nthis case. It is this defense that Respondents raised in their answers to Piercy’s amended action,\nand it is clear that Piercy argues on appeal that they waived this defense. The other statute of\nlimitations at issue in this case, I.C. § 31-857, was enacted by the Legislature after the district\ncourt granted Sutton’s and Guzman’s motions to reconsider. Respondents could not have raised\nit at an earlier time because the statute did not exist—the issue is whether or not I.C. § 31-857\napplies retroactively.\n A. Respondents adequately pled a statute of limitations defense in their answers to\n Piercy’s amended action for declaratory relief.\n Pursuant to IRCP 8(c), “a party shall set forth affirmatively . . . statute of limitations . . .\nand any other matter constituting an avoidance or affirmative defense.” IRCP 8(c). To set forth a\nstatute of limitations defense, the party must “state generally that the action is barred, and allege\nwith particularity the Session Law or the section of the Idaho Code upon which the [party]\nrelies.” IRCP 9(h). These pleading requirements, however, do not impose sanctions on a party\nwho fails to abide by them. As the Court explained in Patterson v. Idaho Dep’t of Health &\nWelfare, “This Court has interpreted IRCP 8(c) as requiring affirmative defenses to be plead, but\nwithout identifying the consequences for failing to do so.” 151 Idaho 310, 316, 256 P.3d 718,\n724 (2011) (citing Fuhriman v. Idaho Dep’t of Transp., 143 Idaho 800, 803–04, 153 P.3d 480,\n483–84 (2007)). Because IRCP 8(c) identifies no consequences for failing to plead an affirmative\ndefense, the Court determined that “a party does not waive an affirmative defense for failing to\nraise it in the initial answer, so long as it is raised before trial and the opposing party has time to\nrespond in briefing and oral argument.” Id.\n Sutton and Guzman raised a statute of limitations defense based on I.C. § 5-224 in their\nanswers to Piercy’s declaratory action. They filed their answers before the bench trial on his\ndeclaratory action and with adequate time for Piercy to respond. Piercy responded to the statute\nof limitations defense in his post-trial reply brief, which the district court ordered in lieu of\n\n 6\n\fclosing arguments. Thus, Respondents did not waive the statute of limitations defense. See\nFuhriman, 143 Idaho at 804, 153 P.3d at 484 (no waiver of affirmative defense because\ndefendant alerted plaintiff to defense in motion for summary judgment and plaintiff had time to\nrespond and present opposing argument).\n The declaratory action was a separate cause of action from the initial negligence action\nwith its own pleadings, motions and memoranda, bench trial, and final judgment. Because the\ndeclaratory action is a separate cause of action, Respondents sufficiently raised the statute of\nlimitations defense by pleading it in two of their answers to Piercy’s complaint.\n B. Piercy waived any argument on appeal that Respondents cannot assert a statute of\n limitations defense without Canyon County raising it.\n Piercy argues that Sutton and Guzman are barred from raising a statute of limitations\ndefense because Canyon County did not raise the defense in its answer. The district court held\nthat Canyon County waived the right to assert a statute of limitations defense by failing to plead\nthe defense in its answer to Piercy’s amended action for declaratory relief. Although the district\ncourt held Canyon County waived the issue, the district court determined that Sutton and\nGuzman adequately raised the issue in their pleadings and had standing. The district court\nexplained, “Sutton and Guzman have an articulated and identifiable financial interest in the\noutcome of the declaratory action.”\n Regardless of the merits of Piercy’s standing argument, he has waived the issue on\nappeal. The Idaho Appellate Rules (I.A.R.) require that “[t]he argument shall contain the\ncontentions of the appellant with respect to the issues presented on appeal, the reasons therefor,\nwith citations to authorities, statutes and parts of the transcript and the record relied upon.”\nI.A.R. 35(a)(6). “This Court has held that if an appellant does not ‘assert his assignments of error\nwith particularity and . . . support his position with sufficient authority, those assignments of\nerror are too indefinite to be heard by the Court.’” Bettwieser v. N.Y. Irrigation Dist., 154 Idaho\n317, 325, 297 P.3d 1134, 1142 (2012) (quoting Bach v. Bagley, 148 Idaho 784, 790, 229 P.3d\n1146, 1152 (2010)). Piercy provides no authority in his brief for his assertion that only Canyon\nCounty, and no other defendant in the declaratory action, may defend the ordinance with a\nstatute of limitations defense. He cites no authority for the proposition that one defendant’s\nfailure to raise a defense precludes the other defendants from raising it. He also provides no\nauthority or argument for his assertion that Sutton and Guzman lack standing. Accordingly,\nPiercy waived this issue on appeal.\n 7\n\f C. Respondents did not waive the statute of limitations defense with the parties’\n stipulation prior to the bench trial on the declaratory action.\n Piercy also asserts that Respondents waived the statute of limitations in the parties’ joint\nstipulation. He claims that the stipulation’s waiver provision applies to all affirmative defenses to\nPiercy’s declaratory action. Respondents contend that the waiver provision applies to the narrow\nissue of the timing of the filing of Piercy’s declaratory action.\n “A stipulation is a contract and its enforceability is determined by contract principles.”\nMaroun, 141 Idaho at 611, 114 P.3d at 981. The Court’s “primary objective when interpreting a\ncontract is to discover the mutual intent of the parties at the time the contract is made.” Straub v.\nSmith, 145 Idaho 65, 69, 175 P.3d 754, 758 (2007). “‘If possible, the intent of the parties should\nbe ascertained from the language of the agreement as the best indication of their intent.’” Id.\n(quoting Opportunity, L.L.C. v. Ossewarde, 136 Idaho 602, 607, 38 P.3d 1258, 1263 (2002)).\nThe Court construes a stipulation against the drafter. Id.\n Sutton filed the declaratory action to join Canyon County on October 16, 2007. On\nMarch 25, 2008, the district court set the trial for the declaratory action for October 8, 2008. On\nSeptember 4, 2008, the parties jointly filed a stipulation to amend pleadings and scheduling.\nPiercy drafted the stipulation. The stipulation allowed Respondents to “Answer the Amended\nAction for Declaratory Relief filed by Mr. Piercy as provided for in the Idaho Rules of Civil\nProcedure.” But it also required that Respondents “waive any defenses they may have regarding\nthe timing of the filing of Mr. Piercy’s Amended Action for Declaratory Relief.” Shortly after\nthe district court granted the stipulation, on September 11, 2008, Piercy filed his amended action\nfor declaratory relief. In sum, almost eleven months passed between Sutton’s declaratory action\nand Piercy’s amended declaratory action.\n In stipulating to an amendment, a party does not waive all defenses that\n might otherwise be raised against the claim that is being added. Such a stipulation\n is generally a matter of courtesy and relieves the plaintiff of the need to file a\n motion and convince the trial court of the propriety of the amendment. It is not an\n acknowledgement of the validity of any claim set out in the amended pleading.\nGalloway v. Walker, 140 Idaho 672, 675, 99 P.3d 625, 628 (Ct. App. 2004). The stipulation here\nrepresents the parties’ limited agreement allowing Piercy to file an amended pleading to simplify\nthe case and reflect the parties’ positions without expending additional time and resources to\nseek leave from the court. See IRCP 15(a). The stipulation is not an endorsement of Piercy’s\nclaims set out in the pleading. The waiver simply bars Respondents from challenging the\n\n 8\n\funtimely filing of Piercy’s amended pleading based on the Idaho rules for amendments to\npleadings.\n This interpretation of the stipulation is consistent with its purpose “to simplify the\nprocedural posture of the case and to have the pleadings accurately reflect the positions of the\ndifferent parties.” The purpose was procedural housekeeping. There is no indication that the\nstipulation affected the merits of the declaratory action. Moreover, this narrow interpretation is\nconsistent with the mutual intent of the parties at the time the parties made the stipulation.\nDuring the oral argument before the district court on this issue, Piercy’s counsel admitted that the\nparties “never talked about statute of limitations in connection with that stipulation.” Sutton’s\ncounsel stated that neither he nor Guzman’s counsel would have signed the stipulation if it\nwaived their affirmative defenses. To this end, Sutton’s counsel explained that the purpose of the\nstipulation “was simply to indicate that we agree that neither [Sutton nor Guzman] were going to\nobject based on the timing of [Piercy’s declaratory action] filing in relationship to the cutoff date\nfor amendments of pleadings.” Similarly, Guzman’s counsel explained that the waiver referred to\nfiling deadlines. It appears that Piercy believed he was giving up a “tactical advantage” and\ndrafted the stipulation “very particularly” to waive all defenses unbeknownst to the parties.\nAccording to Piercy, he should not be faulted if Respondents, who voluntarily signed the\nstipulation, failed to understand or recognize the true meaning of the waiver provision.\nAcceptance of Piercy’s stipulation strategy might well encourage drafters to make ambiguous\ncontracts and mislead the opposing party. Construing the stipulation against the drafter, Piercy,\nStraub, 145 Idaho at 69, 175 P.3d at 758, avoids use of such a strategy and is consistent with this\nCourt’s approach. Respondents did not waive a statute of limitations defense in the joint\nstipulation.\n Respondents adequately raised the statute of limitations defense in I.C. § 5-224 by\npleading the defense in Sutton’s and Guzman’s answers to Piercy’s declaratory action.\n VI.\n The Statute Of Limitations In I.C. § 31-857 Bars Piercy’s Declaratory Action Challenging\n The Validity Of Herd District Ordinance.\n The district court made two alternative findings regarding the application of the two\nstatutes of limitations to Piercy’s declaratory action. The district court first held that I.C. § 31-\n857, which establishes a seven-year statute of limitations to challenges to the procedural or\njurisdictional steps for enacting a herd district ordinance, applied retroactively to Piercy’s\n 9\n\fdeclaratory action. Second, the district court held that I.C. § 5-224, which contains a catch-all\nfour-year statute of limitations for civil actions, applied to Piercy’s declaratory action.\n A. The seven-year statute of limitations amendment to I.C. § 31-857 applies\n retroactively to bar Piercy’s declaratory action.\n Prior to the statute of limitations amendment, I.C. § 31-857 provided:\n Whenever any . . . herd district . . . has heretofore been, or shall hereafter be,\n declared to be created, established, disestablished, dissolved, or modified, by an\n order of the board of county commissioners in any county of the state of Idaho, a\n legal prima facie presumption is hereby declared to exist, after a lapse of two (2)\n years from the date of such order, that all proceedings and jurisdictional steps\n preceding the making of such order have been properly and regularly taken so as\n to warrant said board in making said order, and the burden of proof shall rest upon\n the party who shall deny, dispute, or question the validity of said order to show\n that any of such preceding proceedings or jurisdictional steps were not properly or\n regularly taken; and such prima facie presumption shall be a rule of evidence in\n all courts in the state of Idaho.\nCh. 73, § 25, 1989 Idaho Sess. Laws 117, 127. In short, the statute contained a presumption of\nvalidity for all herd district ordinances two years after the ordinance’s enactment.\n On March 23, 2009, the Legislature amended I.C. § 31-857 by adding a seven-year\nstatute of limitations to the statute. Ch. 43, § 1, 2009 Idaho Sess. Laws 124, 124–25. The\namendment stated: “No challenge to the proceedings or jurisdictional steps preceding such an\norder, shall be heard or considered after seven (7) years has lapsed from the date of the order.”\nId. The Statement of Purpose for the amendment provided:\n This bill establishes a standard seven year statute of limitations for procedural and\n jurisdictional challenges to the creation of governmental districts under Idaho law.\n This will eliminate unreasonably delayed legal challenges to the procedures used\n by the County Commission after seven years have passed, the districts are in place\n and have been relied upon by the citizens and the county.\nStatement of Purpose, H.B. 102, 60th Leg., 1st Reg. Sess. (Idaho 2009). Other than the statute of\nlimitations amendment, the Legislature made no other changes to the statute. The amendment\nbecame effective July 1, 2009. Ch. 43, § 1, 2009 Idaho Sess. Laws at 125.\n In general, legislation acts prospectively. Ben Lomond, Inc. v. City of Idaho Falls, 92\nIdaho 595, 601, 448 P.2d 209, 215 (1968). “Retrospective or retroactive legislation is not\nfavored.” Winans v. Swisher, 68 Idaho 364, 367, 195 P.2d 357, 359 (1948). As such, “a well-\nsettled and fundamental rule of statutory construction” is to construe statutes to have a\nprospective rather than retroactive effect. Id. “Consonant with this view, I.C. § 73-101 states that\n\n\n 10\n\f‘[n]o part of these compiled laws is retroactive, unless expressly so declared.’” Univ. of Utah\nHosp. ex. rel. Harris v. Pence, 104 Idaho 172, 174, 657 P.2d 469, 471 (1982) (alteration in\noriginal) (quoting I.C. § 73-101). “Thus, in Idaho, a statute is not applied retroactively unless\nthere is ‘clear legislative intent to that effect.’” Gailey v. Jerome Cnty., 113 Idaho 430, 432, 745\nP.2d 1051, 1053 (1987) (quoting City of Garden City v. City of Boise, 104 Idaho 512, 515, 660\nP.2d 1355, 1358 (1983)).\n “[A] statute should be applied retroactively only if the legislature has clearly expressed\nthat intent or such intent is clearly implied by the language of the statute.” Kent v. Idaho Pub.\nUtils. Comm’n, 93 Idaho 618, 621, 469 P.2d 745, 748 (1970). The Legislature does not need to\n“use the words, ‘this statute is to be deemed retroactive,’” however. Peavy v. McCombs, 26\nIdaho 143, 151, 140 P. 965, 968 (1914).\n [I]t is sufficient if the enacting words are such that the intention to make the law\n retroactive is clear. In other words, if the language clearly refers to the past as\n well as to the future, then the intent to make the law retroactive is expressly\n declared within the meaning of [I.C. § 73-101].\nId.\n With amendments to statutes, this Court has stated that they will not be deemed\nretroactive in application absent an express legislative statement to the contrary. Nebeker v.\nPiper Aircraft Corp., 113 Idaho 609, 614, 747 P.2d 18, 23 (1987). The express legislative\nstatement may be in the amendment itself or, as recent cases have recognized, the express\nlegislative statement may be in the original statute or act and extend to future amendments. To\nthis end, this Court explained, “When a legislative act is expressly stated to be retroactive,\nsubsequent amendments to that act are also retroactive, as long as retroactive application would\nnot violate the Constitution.” Bottum v. Idaho State Police Bureau of Criminal Identification\nCent. Sex Offender Registry, 154 Idaho 182, 184, 296 P.3d 388, 390 (2013). For example, the\nCourt determined in Bottum that an amendment to the Sex Offender Registration Act (SORA)\nhad a retroactive effect because SORA expressly declared that all of its provisions were\nretroactive. Id. Similarly, the Court determined in A & B Irrigation Dist. v. Idaho Dep’t of Water\nRes. that an amendment to the Ground Water Act (GWA) applied retroactively to pre-\namendment water rights because the GWA, interpreted in its entirety, “was made retroactive by\nthe express language” in the original act. 153 Idaho 500, 508, 284 P.3d 225, 233 (2012). In that\ncase, the GWA provided that “the administration of all rights to the use of ground water,\n\n\n 11\n\fwhenever or however acquired or to be acquired, shall, unless specifically excepted therefrom,\nbe governed by the provisions of this act.” Id. at 508, 284 P.3d at 232. As a retroactive act in\ngeneral, this Court stated that any amendment to the GWA “should be administered in\naccordance” with the retroactive act. Id. at 508, 284 P.3d at 233.\n Although I.C. § 31-857 does not have as clear a retroactive provision as in SORA, I.C. §\n31-857 has a retroactive provision analogous to that expressed in the GWA. I.C. § 31-857\nprovides that “[w]henever any . . . herd district . . . has heretofore been, or shall hereafter be,\ndeclared to be created . . . by an order,” “[n]o challenge to . . . such an order, shall be heard or\nconsidered after seven (7) years has lapsed from the date of the order.” I.C. § 31-857. This\nlanguage referencing “any” order that “has heretofore been, or shall hereafter be” is similar to the\nGWA statute governing all water rights “whenever or however acquired or to be acquired.” See\nA & B Irrigation Dist., 153 Idaho at 508, 284 P.3d at 232. As the GWA governs all water rights\nwhenever acquired, I.C. § 31-857 governs all herd district ordinances whenever enacted. Thus,\nthe seven-year statute of limitations amendment to I.C. § 31-857 should be administered in\naccordance with the retroactive statute. Accordingly, any past or future herd district ordinance\nmay not be challenged based on its procedural or jurisdictional defects after seven years from the\ndate of its enactment.\n Both parties argue that the opposing party’s interpretation of the statute of limitations\namendment creates absurd results. Piercy contends that applying the amendment retroactively\nmeans he “would have had to have been sued and raised his defense that the [o]rdinance was\nvoid no later than 1989, before the collision in this case had even taken place.” He claims that he\nhas until 2016. Conversely, Sutton contends that Piercy’s assertion that “the statute of limitations\nonly applies to districts created after July 1, 2009, does not make sense when the purpose of the\namendment is to preclude challenges to old districts. It was not the legislature’s intent to grant\nanother seven years to challenge procedural defects in a one hundred year old herd district\nstatute.” Even if an unambiguous statute has allegedly absurd results, this Court stated that it\ndoes not have the authority to revise or void “an unambiguous statute on the ground that it is\npatently absurd or would produce absurd results when construed as written.” Verska v. Saint\nAlphonsus Reg’l Med. Ctr., 151 Idaho 889, 896, 265 P.3d 502, 509 (2011). The Court reasoned:\n The public policy of legislative enactments cannot be questioned by the courts\n and avoided simply because the courts might not agree with the public policy so\n announced. Indeed, the contention that we could revise an unambiguous statute\n\n 12\n\f because we believed it was absurd or would produce absurd results is itself\n illogical.\nId. (internal citation and quotation marks omitted). Based on this reasoning, I.C. § 31-857 cannot\nbe construed to have a different effect than the unambiguous language of the statute, which seeks\nto govern all ordinances whenever they are enacted. Therefore, unless the retroactive application\nof the statute of limitations in I.C. § 31-857 violates the Constitution, Bottum, 154 Idaho at 184,\n296 P.3d at 390, Piercy’s declaratory action is barred because it was filed well over seven years\nafter the enactment of the herd district ordinance on December 10, 1982.\n B. The retroactive statute of limitations in I.C. § 31-857 does not violate the\n procedural or substantive due process rights in the United States and Idaho\n Constitutions.\n The United States and Idaho Constitutions protect against state deprivation of a person’s\n“life, liberty, or property, without due process of law.” U.S. CONST. AMEND. XIV, § 1; IDAHO\nCONST. ART. I, § 13. Piercy argues that the statute of limitations amendment to I.C. § 31-857\nviolates his procedural and substantive due process rights.\n 1. Piercy’s procedural due process rights are not violated by the statute of\n limitations in I.C. § 31-857.\n “Procedural due process requires that ‘there must be some process to ensure that the\nindividual is not arbitrarily deprived of his rights in violation of the state or federal\nconstitutions.’” In re Pangburn, 154 Idaho 233, 242, 296 P.3d 1080, 1089 (2013) (quoting\nAberdeen-Springfield Canal Co. v. Peiper, 133 Idaho 82, 91, 982 P.2d 917, 926 (1999)).\n “To determine whether an individual’s due process rights under the Fourteenth\nAmendment have been violated, courts must engage in a two-step analysis. The Court must first\ndecide whether the individual’s threatened interest is a liberty or property interest under the\nFourteenth Amendment.” Bradbury v. Idaho Judicial Council, 136 Idaho 63, 72–73, 28 P.3d\n1006, 1015–16 (2001). In the second step, the Court “determines what process is due.” Id. at 73,\n28 P.3d at 1016.\n “A deprivation of property encompasses claims where there is a legitimate claim or\nentitlement to the asserted benefit under either state or federal law.” Id. at 72, 28 P.3d at 1015.\n Whether a property interest exists can be determined only by an examination of\n the particular statute, rule or ordinance in question. The existence of a liberty or\n property interest depends on the “construction of the relevant statutes,” and the\n “nature of the interest at stake.” The procedural protection of property guaranteed\n\n\n 13\n\f by the Fourteenth Amendment “is a safeguard of the security of interests that a\n person has already acquired in specific benefits.”\nId. at 73, 28 P.3d at 1016 (quoting Maresh v. Idaho Dep’t of Health & Welfare, 132 Idaho 221,\n226, 970 P.2d 14, 19 (1998)). To receive due process, the property interest must be an\nidentifiable and legitimate claim or entitlement to a specific benefit provided by state or federal\nlaw.\n Piercy claims to have more than one property interest. He claims to have an interest in\nbeing able to have his cattle roam in open range without being subject to liability for an accident\ncaused if his cattle wander onto the roadway. He also claims to have a personal property interest\nbecause herd districts are also taxing districts that affect personal property. He claims to have\n“gained the right to challenge” the notice and opportunity process because the Legislature\nprovided for the right to have notice and an opportunity to be heard prior to the enactment of a\nherd district ordinance.\n None of these alleged interests is a protected property interest for purposes of procedural\ndue process. The statutes governing herd districts, I.C. §§ 25-2401 to -2409, do not entitle an\nindividual to the benefits of an open range area. Rather, the statutes provide that open range areas\nare subject to modification into herd districts by the county commissioners. See I.C. § 25-2401.\nIf anything, the herd district statutes grant individuals the ability to petition the county\ncommissioners to create, modify, or eliminate a herd district, but this ability is not an unrestricted\nor guaranteed right. A petition must be supported by a majority of landowners in the interested\narea and, to become an ordinance, the petition must be supported by a majority of landowners\nowning fifty-percent of the land in interested area. See I.C. §§ 25-2402 to -2404. As such, this\nability to petition certainly is not an entitlement to open range areas or limited liability. Further,\nthe “right to challenge” the petition process is not a specific benefit provided by state law. There\nis no “right to challenge” an existing herd district ordinance due to its flawed enactment\nprocedures in the relevant statutes; there is only the limited statutory ability to petition to create,\nmodify, or eliminate an ordinance in accordance with the statute’s procedures.\n 2. Piercy’s substantive due process rights are not violated by the statute of\n limitations in I.C. § 31-857.\n “‘Substantive due process’ means ‘that state action which deprives [a person] of life,\nliberty, or property must have a rational basis—that is to say, the reason for the deprivation may\nnot be so inadequate that the judiciary will characterize it as ‘arbitrary.’” Halvorson v. N. Latah\n\n 14\n\fCnty. Highway Dist., 151 Idaho 196, 207, 254 P.3d 497, 508 (2011) (quoting Bradbury, 136\nIdaho at 69, 28 P.3d at 1012 (alternation in original)).\n For substantive due process claims, the Court applies “the rational basis test’s deferential\nstandard of review when dealing with legislation regarding economic interests.” In re Jerome\nCnty. Bd. of Comm’rs, 153 Idaho 298, 315, 281 P.3d 1076, 1093 (2012).\n Substantive due process requires that a statute bear a reasonable relationship to a\n permissible legislative objective. Where it is at least debatable that governmental\n conduct is rationally related to a legitimate governmental interest, no violation of\n substantive due process will be found. In this context, legislative acts are\n presumed valid and only overcome by clearly showing arbitrariness and\n irrationality.\nId. (internal citations and quotation marks omitted).\n Assuming that Piercy has experienced a deprivation of property, he cannot show that the\nstatute of limitations does not bear a rational relationship to a legitimate government interest. He\nargues, “By enacting an absolute bar on challenges to the due process requirements of county\nordinances, the legislature has capriciously cut off legitimate due process challenges without\nallowing any inquiry into whether a challenge has been unreasonably delayed.” Piercy fails to\nrealize that the Legislature has not enacted an absolute bar. Interested citizens have up to seven\nyears after an ordinance’s enactment to challenge it. Moreover, a statute of limitations may bar a\nconstitutional right. See Wadsworth v. Idaho Dep’t of Transp., 128 Idaho 439, 442, 915 P.2d 1, 4\n(1996) (citing United States v. Dickinson, 331 U.S. 745 (1947)); see also McCuskey v. Canyon\nCnty. Comm’rs, 128 Idaho 213, 215–18, 912 P.2d 100, 102–05 (1996) (holding that an inverse\ncondemnation action was barred by the four-year statute of limitation in I.C. § 5-224). “‘The\npolicy behind statutes of limitations is protection of defendants against stale claims, and\nprotection of the courts against needless expenditures of resources.’ Statutes of limitation are\ndesigned to promote stability and avoid uncertainty with regards to future litigation.”\nWadsworth, 128 Idaho at 442, 915 P.2d at 4 (quoting Johnson v. Pischke, 108 Idaho 397, 402,\n700 P.2d 19, 25 (1985)). The Legislature’s statement of purpose for the statute of limitations in\nI.C. § 31-857 reflects these policies. The purpose states: “This will eliminate unreasonably\ndelayed legal challenges to the procedures used by the County Commission after seven years\nhave passed, the districts are in place and have been relied upon by the citizens and the county.”\nStatement of Purpose, H.B. 102, 60th Leg., 1st Reg. Sess. (Idaho 2009). The government’s\ninterest in providing its citizens and the county with some reliability and finality for its herd\n\n 15\n\fdistrict ordinances is permissible and legitimate as is an interest in encouraging timely challenges\nto statutes and ordinances. The statute of limitations bears a rational relationship to the\ngovernment’s legitimate interests in curbing stale challenges and providing reliable ordinances.\nTherefore, there is no violation of substantive due process.\n VII.\n The Four-Year Statute Of Limitations In I.C. § 5-224 Also Bars Piercy’s Declaratory\n Action.\n I.C. § 5-224 “is the statute of limitations for all actions not specifically provided for in\nanother statute.” McCuskey, 128 Idaho at 216, 912 P.2d at 103. This statute of limitations has\nbeen referred to as a “catch-all provision.” Hoglan v. First Sec. Bank of Idaho, N.A., 120 Idaho\n682, 685, 819 P.2d 100, 103 (1991). “I.C. § 5-224 requires that claims within its purview ‘must\nbe commenced within four (4) years after the cause of action shall have accrued.’” McCuskey,\n128 Idaho at 216, 912 P.2d at 104 (quoting I.C. § 5-224). I.C. § 5-224 applies to all civil actions\nexcept when another section of Title 5, Chapter 2 governs the particular cause of action or when\n“a different limitation” for “special cases” is prescribed by another section in the Idaho Code.\nI.C. §§ 5-201, -224. In this case I.C. § 31-857 is such a limitation for special cases.\n If I.C. § 31-857 did not apply retroactively, Piercy’s declaratory action challenging the\nherd district ordinance would fall within the purview of I.C. § 5-224 because it is a civil action\nthat lacks a different limitation provided by another statute. McCuskey, 128 Idaho at 216–17, 912\nP.2d at 103–04. The two-year presumption of validity in I.C. § 31-857 is not a different\nlimitation prescribed by statute that overrides the catch-all statute of limitations in I.C. § 5-224.\nThe two-year presumption in I.C. § 31-857 is “a rule of evidence” to assign “the burden of\nproof.” I.C. § 31-857. These words in the statute “‘must be given their plain, usual, and ordinary\nmeaning.’” Brannon v. City of Coeur d’Alene, 153 Idaho 843, 848, 292 P.3d 234, 239 (2012)\n(quoting Verska, 151 Idaho at 893, 265 P.3d at 506).\n A cause of action to challenge the validity of the herd district ordinance based on\nimproper jurisdictional or procedural steps accrued on the date that the Canyon County\nCommissioners enacted the ordinance: December 10, 1982. See Canady v. Coeur d’Alene\nLumber Co., 21 Idaho 77, 93, 120 P. 830, 835 (1911). Piercy did not file his declaratory action\nwithin four years of that date. His action would have been barred under this statute of limitations\nprior to the amendment to I.C. § 31-857.\n VIII.\n 16\n\f The Court Will Not Correct A Statement In The District Court’s Order Dismissing\n Piercy’s Declaratory Action.\n Piercy asks this Court to correct a statement made by the district court in its order\ndismissing Piercy’s declaratory action. The district court stated in its order: “There was actual\npublic notice given of the Board of Commissioners intent to consider and possibly adopt the\nordinance.” The district court relied on this fact in part to determine when Piercy’s cause of\naction accrued for purposes of the statute of limitations in I.C. § 5-224. Piercy asks this Court to\nchange the district court’s statement because he claims that the evidence at the bench trial\nrevealed no actual notice prior to the adoption of the herd district ordinance. One of the reasons\nPiercy offers for this alleged error is that Judge Ford, who took over the case from Judge Petrie\nand ordered the dismissal of Piercy’s action, did not preside at the bench trial. He asks the Court\nto correct the statement “to state that there was no actual public notice of the Board of\nCommissioners’ intent to consider and possibly adopt the ordinance.” This lack of notice, Piercy\ncontends, “is relevant to [his] constitutional and substantive arguments.”\n This request by Piercy is meritless. First, there is no indication in the record that the\ndistrict court refused a motion by Piercy to reconsider or clarify its order or that Piercy even filed\nsuch a motion. It is unclear how this Court can alter the district court’s factual findings. The\nCourt could find them unsupported or in error, but the Court cannot change what they say.\nSecond, Piercy provides no authority for his request. “A general attack on the findings and\nconclusions of the district court, without specific reference to evidentiary or legal errors, is\ninsufficient to preserve an issue. . . . Consequently, to the extent that an assignment of error is\nnot argued and supported in compliance with the I.A.R., it is deemed to be waived.” Bach, 148\nIdaho at 790, 229 P.3d at 1152; see also I.A.R. 35(a)(6). With no authority to support Piercy’s\nattack on the district court’s statements, this argument is waived. Finally, Judge Ford’s statement\ndoes not affect the outcome of this case. Piercy’s declaratory action is barred under the seven-\nyear statute of limitations in I.C. § 31-857 regardless of any notice. See Nampa & Meridian\nIrrigation Dist. v. Mussell, 139 Idaho 28, 33, 72 P.3d 868, 873 (2003) (“Where the lower court\nreaches the correct result by an erroneous theory, this Court will affirm the order on the correct\ntheory.”) I.C. § 31-857 clearly sets the date of accrual for challenges to a herd district ordinance\nas the date of the ordinance’s enactment. The request to alter the district court’s findings is\ndenied.\n\n\n 17\n\f IX.\n\n At oral argument Piercy argued that the herd district would only include swine because\nthe ordinance failed to designate the kinds of animals controlled by it. This issue was not briefed\nand will not be considered.\n X.\n CONCLUSION\n The decision of the district court is affirmed. Neither party requested attorney’s fees on\nappeal. Respondents are awarded costs.\n Chief Justice BURDICK, Justices J. JONES and HORTON, CONCUR.\n\n Justice EISMANN, concurring in part.\n I concur in the majority opinion except for Part VI.B.2. discussing substantive due\nprocess. The words due process in the Fifth and Fourteenth Amendments to the Constitution of\nthe United States and in article I, section 13, of the Constitution of the State of Idaho only meant\nprocedural due process when they were adopted. The concept of substantive due process is\nsimply a doctrine created by courts to permit them to strike down statutes with which they\npersonally disagree. Because courts lack the authority to change the meaning of the words in\neither Constitution, I do not concur in this part. Since the majority does not find any merit in\nPiercy’s claim based upon substantive due process, I have no need to dissent\n\n\n\n\n 18\n\f",
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| Idaho Supreme Court | Idaho Supreme Court | S | Idaho, ID |
1,443,362 | Brehhan | 1952-06-26 | false | in-re-howell | In Re Howell | In Re Howell | In the Matter of Robert G. Howell, an Attorney and Counsellor-At-Law | For the order, Mr. Robert Peacock, Deputy Attorney General of New Jersey., For the respondent, Mr. Leroy W. Loder. | null | null | null | null | null | null | null | Argued June 23, 1952 | null | null | 15 | Published | null | <parties id="b155-7">
IN THE MATTER OF ROBERT G. HOWELL, AN ATTORNEY AND COUNSELLOR-AT-LAW.
</parties><br><otherdate id="b155-8">
Argued June 23, 1952
</otherdate><decisiondate id="AEx">
Decided June 26, 1952.
</decisiondate><br><attorneys id="b156-9">
<span citation-index="1" class="star-pagination" label="140">
*140
</span>
For the order,
<em>
Mr. Robert
</em>
Peacock, Deputy Attorney General of New Jersey.
</attorneys><br><attorneys id="b156-10">
For the respondent,
<em>
Mr. Leroy W. Loder.
</em>
</attorneys> | [
"89 A.2d 652",
"10 N.J. 139"
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"opinion_text": "\n10 N.J. 139 (1952)\n89 A.2d 652\nIN THE MATTER OF ROBERT G. HOWELL, AN ATTORNEY AND COUNSELLOR-AT-LAW.\nThe Supreme Court of New Jersey.\nArgued June 23, 1952.\nDecided June 26, 1952.\n*140 For the order, Mr. Robert Peacock, Deputy Attorney General of New Jersey.\nFor the respondent, Mr. Leroy W. Loder.\nPER CURIAM.\nRespect for the law is the keystone of our democracy. An attorney by tradition is an appropriate advocate of this truism and it behooves him to act accordingly and to exercise the utmost restraint under all circumstances. This is the theme of the Canons of Professional Ethics, explicitly set forth in the preamble thereto. And Canon 29 provides, inter alia, that the lawyer \"should strive at all times to uphold the honor and to maintain the dignity of the profession and to improve not only the law but the administration of justice\"; in Canon 32 he is admonished \"to observe the statute law\" and advised that he \"will find his highest honor in a deserved reputation for fidelity to public trust and to public duty.\" It is axiomatic that it is extremely desirable that respectability of the bar should be maintained.\nIn the present case the respondent committed assault and battery and subsequently pleaded non vult thereto in criminal proceedings. An attorney's responsibility is to the courts, the profession and the public, and his misconduct may *141 be of such a nature as to engender disrespect for the law which is his basic trust. No criticism of his professional conduct has been otherwise made.\nThe respondent violated the Canons of Professional Ethics. In the circumstances of the case he should be suspended from the practice of the law for a period of six months and until further order of this court.\nWILLIAM J. BRENNAN, JR., J. (concurring).\nRobert G. Howell, an attorney and counsellor at law, was sentenced in the Cumberland County Court upon his plea of non vult to the lesser offense of simple assault and battery upon his indictment for an atrocious assault and battery. Thereupon an order to show cause was issued why he should not be disbarred or otherwise disciplined.\nThe assault was committed upon Shike Levine, editor of the Bridgeton Bulletin, a weekly newspaper. Mr. Howell, a resident of Hopewell but practicing in Bridgeton, is a leader of a political organization in Bridgeton styled the \"Good Government Group,\" which is opposed by the Bulletin. Ralph Spoltare was elected a Bridgeton councilman with \"Good Government\" support. Mr. Spoltare suffered a heart attack on March 30, 1951, as a consequence of which he died a week later, on April 7, 1951. On the day before his death the weekly edition of the Bulletin carried an editorial saying among other things that, \"It is unfortunate that the health of individuals suffer as the result of politics, but the sudden illness of Councilman Ralph Spoltare brings to focus this fact.\" \"Spoltare has clashed with the G.G. colleagues.\" \"This must have had some effect upon his emotional structure.\" \"Spoltare at heart wanted to do what was good for the town, but the G.G. clique muzzled him.\" \"Although he was elected on that label, many who observed him at meetings felt that in time he * * * would discover that the G.G. label was just a mask to disguise the real motives of the string-puller from Hopewell township.\" The reference to \"string-puller from Hopewell township\" was to Mr. Howell.\n*142 Mr. Howell read the editorial at his home on the evening of its publication. He went immediately to Mr. Levine's newspaper office, taking with him a length of rubber hose and a riding crop. He asked Mr. Levine's secretary to leave, and then beat Mr. Levine with the hose and riding crop about the back, neck and legs. Mr. Levine ran to the street after telephoning for a police officer. The men there engaged in fisticuffs until the police officer arrived and they were separated.\nMr. Howell filed an affidavit in these proceedings in an attempt to justify his conduct on the ground, \"My judgment was badly overcome by emotions. I felt that I was being unfairly charged with causing a friend's death, his wife to be widowed and his children to be fatherless, that such had been done to me ruthlessly. I had received (word) that day that Spoltare could not possibly live, I was greatly distressed.\" It was conceded at the oral argument that an interval of about 40 minutes elapsed from the time Mr. Howell read the editorial until he reached Mr. Levine's office.\nOrdinarily a lawyer convicted of a crime is subject to suspension or disbarment whether or not the offense was committed in his professional capacity, although the matter of discipline is made to depend upon the nature of the crime. Conviction of a crime involving moral turpitude almost always will result in discipline. The concept of what is moral turpitude is not immutable but embraces a wide variety of crimes. 7 C.J.S., Attorney and Client, § 21, pp. 737-738. If it be arguable that assault and battery does not necessarily involve moral degeneration in the guilty lawyer, nonetheless it is a transgression which brings reproach to the profession, fosters public distrust of the bar and, worse, is a very menace to the administration of justice itself. We are a society governed by law, whose integrity it is the lawyer's special role to guard and champion. In that society there is no place for a personal code of justice. The preamble to the Canons of Professional Ethics observes \"The future of the Republic, to a great extent, depends upon our maintenance *143 of Justice pure and unsullied. It cannot be so maintained unless the conduct and the motives of the members of our profession are such as to merit the approval of all just men.\" Canon 29 obligates every member of the bar to \"strive at all times to uphold the honor and to maintain the dignity of the profession and to improve not only the law but the administration of justice.\" A lawyer who attempts to avenge real or fancied personal grievances by resort to a personal code offensive to the criminal laws is deficient in that degree of fair private and professional character that the public rightly expects of every member of the bar. His office is a very badge of respectability and his conduct sullies the office. He \"invites and merits stern and just condemnation.\" Cf. Canon 32. His conduct perforce imperils not him alone but the honor and integrity of his profession which depends for its very existence upon public trust and confidence. The spectacle of a lawyer criminating himself by the perpetration upon another of an assault instead of redressing his alleged grievances under law, necessarily prejudices, in the eyes of \"just men,\" not him alone, but his fellows also. Discipline must be imposed not primarily to punish him but to give assurance to the public that the profession is deserving of its trust and confidence and will demand that all lawyers meticulously adhere to the high standards imposed by the profession upon itself.\nIt should be noted that upon Mr. Howell's admission to the bar he took a solemn oath \"that I will faithfully and honestly demean myself in the practice\" of the office. C.S. p. 3769, sec. 6; R.S. 2:20-1, now supplanted by N.J.S. 2A:13-1. The redress of wrongs according to a private code is plainly not good demeanor.\nThat Mr. Howell may have been enraged by what to him were unfair imputations of responsibility for his friend's death cannot excuse him. In the interval of 40 minutes before arriving at Mr. Levine's office there was ample time within which to bring his emotions under control and realize *144 that a stigma upon him and his profession was bound to follow in the wake of what he was proposing to do.\nI agree that Mr. Howell be suspended from the practice of the law for a period of six months and until the further order of this court.\nVANDERBILT, C.J., joins in this opinion.\nFor suspension for six months and until further order Chief Justice VANDERBILT, and Justices HEHER, OLIPHANT, WACHENFELD, BURLING, JACOBS and BRENNAN 7.\nOpposed None.\n",
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"opinion_text": "\nPer Curiam.\nRespect for the law is the keystone of our democracy. An attorney by tradition is an appropriate advocate of this truism and it behooves him to act accordingly and to exercise the utmost restraint under all circumstances. This is the theme of the Canons of Professional Ethics, explicitly set forth in the preamble thereto. And Canon 39 provides, inter alia, that the lawyer “should strive at all times to uphold the honor and to maintain the dignity of the profession and to improve not only the law but the administration of justice”; in Canon 33 he is admonished “to observe the statute law” and advised that he “will find his highest honor in a deserved reputation for fidelity to public trust and to public duty.” It is axiomatic that it is extremely desirable that respectability of the bar should be maintained.\nIn the present case the respondent committed assault and battery and subsequently pleaded non vult thereto in criminal proceedings. An attorney’s responsibility is to the courts, the profession and the public, and his misconduct may *141be of such a nature as to engender disrespect for the law which is his basic trust. No criticism of his professional conduct has been otherwise made.\nThe respondent violated the Canons of Professional Ethics. In the circumstances of the case he should be suspended from the practice of the law for a period of sis months and until further order of this court.\n",
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"opinion_text": "\nWilliam J. Brehhan, Jr., J.\n(concurring). Robert G. Howell, an attorney and counsellor at law, was sentenced in the Cumberland County Court upon his plea of non vult to the lesser offense of simple assault and battery upon his indictment for an atrocious assault and battery. Thereupon an order to show cause was issued why he should not be disbarred or otherwise disciplined.\nThe assault was committed upon Shike Levine, editor of the Bridgeton Bulletin, a weekly newspaper. Mr. Howell, a resident of Hopewell but practicing in Bridgeton, is a leader of a political organization in Bridgeton styled the “Good Government Group,” which is opposed by the Bulletin. Ralph Spoltare was elected a Bridgeton councilman with “Good Government” support. Mr. Spoltare suffered a heart attack on March 30, 1951, as a consequence of which he died a week later, on 'April 7, 1951. On the day before his death the weekly edition of the Bulletin carried an editorial saying among other things that, “It is unfortunate that the health of individuals suffer as the result of politics, but the sudden illness of Councilman Ralph Spoltare brings to focus this fact.” “Spoltare has clashed with the G. G. colleagues.” “This must have had some effect upon his emotional structure.” “Spoltare at heart wanted to do what was good for the town, but the G. G. clique muzzled him.” “Although he was elected on that label, many who observed him at meetings felt that in time he * * * would discover that the G. G. label was just a mask to disguise the real motives of the string-puller from Hopewell township.” The reference to “string-puller from Hopewell township” was to Mr. Howell.\n*142Mr. Howell read the editorial at his home on the evening of its publication. He went immediately to Mr. Levine’s newspaper office, taking with him a length of rubber hose and a riding crop. He asked Mr. Levine’s secretary to leave, and then beat Mr. Levine with the hose and riding crop about the back, neck and legs. Mr. Levine ran to the street after telephoning for a police officer. The men there engaged in fisticuffs until the police officer arrived and they were separated.\nMr. Howell filed an affidavit in these proceedings in an attempt to justify his conduct on the ground, “My judgment was badly overcome by emotions. I felt that I was being unfairly charged with causing a friend’s death, his wife to be widowed and his children to be fatherless, that such had been done to me ruthlessly. I had received (word) that day that Spoltare could not possibly live, I was greatly distressed.” It was conceded at the oral argument that an interval of about 40 minutes elapsed from the time Mr. Howell read the editorial until he reached Mr. Levine’s office.\nOrdinarily a lawyer convicted of a crime is subject to suspension or disbarment whether or not the offense was committed in his professional capacity, although the matter of discipline is made to depend upon the nature of the crime. Conviction of a crime involving moral turpitude almost always will result in discipline. The concept of what is moral turpitude is not-immutable but embraces a wide variety of crimes. 7 C. J. S., Attorney and Client, § 21, pp. 737-738. If it be arguable that assault and battery does not necessarily involve moral degeneration in the guilty lawyer, nonetheless it is a transgression which brings reproach to the profession, fosters public distrust of the bar and, worse, is a very menace to the administration of justice itself. We are a society governed by law, whose integrity it is the lawyer’s special role to guard and champion. In that society there is no place for a personal code of justice. The preamble to the Canons of Professional Ethics observes “The future of the Republic, to a great extent, depends upon our maintenance *143of Justice pure and unsullied. It cannot be so maintained unless the conduct and the motives of the members of our profession are such as to merit the approval of all just men.” Canon 29 obligates every member of the bar to “strive at all times to uphold the honor and to maintain the dignity of the profession and to improve not only the law but the administration of justice.” A lawyer who attempts to avenge real or fancied personal grievances by resort to a personal code offensive to the criminal laws is deficient in that degree of fair private and professional character that the public rightly expects of every member of the bar. His office is a very badge of respectability and his conduct sullies the office. He “invites and merits stern and just condemnation.” Cf. Canon 32. His conduct perforce imperils not him alone but the honor and integrity of his profession which depends for its very existence upon -public trust and confidence. The spectacle of a lawyer criminating himself by the perpetration upon another of an assault instead of redressing his alleged grievances under law, necessarily prejudices, in the eyes of “just men,” not him alone, but his fellows also. Discipline must be imposed not primarily to punish him but to give assurance to the public that the profession is deserving of its trust and confidence and will demand that all lawyers meticulously adhere to the high standards imposed by the profession upon itself.\nIt should be noted that upon Mr. Howell’s admission to the bar he took a solemn oath “that I will faithfully and honestly demean myself in the practice” of the office. C. S. p. 3769, sec. 6; R. S. 2:20-1, now supplanted by N. J. S. 2A :13—1. The redress of wrongs according to a private code is plainly not good demeanor.\n’ That Mr. Howell may have been enraged by what to him were unfair imputations of responsibility for his friend’s death cannot excuse him. In the interval of 40 minutes before arriving at Mr. Levine’s office there was ample time within which to bring his emotions under control and realize *144that a stigma upon him and his profession was hound to follow in the wake of what he was proposing to do.\nI agree that Mr. Howell he suspended from the practice of the law for a period of six months and until the further order of this court.\nVanderbilt, C. J., joins in this opinion.\nFor suspension for six months and until further order — • Chief Justice Vanderbilt, and Justices Heher, Oliphant, Waciieneeld, Burling, Jacobs and Brennan — 7.\nOpposed — Hone.\n",
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| Supreme Court of New Jersey | Supreme Court of New Jersey | S | New Jersey, NJ |
197,235 | Coffin, Tauro, Torruella | 1997-03-05 | false | united-states-v-dandrea | D'Andrea | United States v. D'Andrea | UNITED STATES, Appellee, v. Thomas D'ANDREA, Defendant-Appellant | Arthur R. Silen, Newton, MA, by appointment of the Court, with whom Roberts & Newman, P.A. was on brief, for appellant., Ira Belkin, Assistant United States Attorney, Providence, RI, with whom Sheldon Whitehouse, United States Attorney, was on brief, for appellee. | null | null | null | null | null | null | null | Heard Sept. 11, 1996. | null | null | 26 | Published | null | <parties id="b1047-14">
UNITED STATES, Appellee, v. Thomas D’ANDREA, Defendant—Appellant.
</parties><br><docketnumber id="b1047-17">
No. 95-2105.
</docketnumber><br><court id="b1047-18">
United States Court of Appeals, First Circuit.
</court><br><otherdate id="b1047-20">
Heard Sept. 11, 1996.
</otherdate><br><decisiondate id="b1047-21">
Decided March 5, 1997.
</decisiondate><br><attorneys id="b1050-9">
<span citation-index="1" class="star-pagination" label="-632">
*-632
</span>
Arthur R. Silen, Newton, MA, by appointment of the Court, with whom Roberts & Newman, P.A. was on brief, for appellant.
</attorneys><br><attorneys id="b1050-10">
Ira Belkin, Assistant United States Attorney, Providence, RI, with whom Sheldon Whitehouse, United States Attorney, was on brief, for appellee.
</attorneys><br><judges id="b1050-11">
Before TORRUELLA, Chief Judge, COFFIN, Senior Circuit Judge, and TAURO,
<a class="footnote" href="#fn*" id="fn*_ref">
*
</a>
District Judge.
</judges><div class="footnotes"><div class="footnote" id="fn*" label="*">
<a class="footnote" href="#fn*_ref">
*
</a>
<p id="b1050-14">
Of the District of Massachusetts, sitting by designation.
</p>
</div></div> | [
"107 F.3d 949"
]
| [
{
"author_str": "Torruella",
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"type": "010combined",
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"download_url": "http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=95-2105.01A",
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"opinion_text": "107 F.3d 949\n UNITED STATES, Appellee,v.Thomas D'ANDREA, Defendant--Appellant.\n No. 95-2105.\n United States Court of Appeals,First Circuit.\n Heard Sept. 11, 1996.Decided March 5, 1997.\n \n Arthur R. Silen, Newton, MA, by appointment of the Court, with whom Roberts & Newman, P.A. was on brief, for appellant.\n Ira Belkin, Assistant United States Attorney, Providence, RI, with whom Sheldon Whitehouse, United States Attorney, was on brief, for appellee.\n Before TORRUELLA, Chief Judge, COFFIN, Senior Circuit Judge, and TAURO,* District Judge.\n TORRUELLA, Chief Judge.\n \n \n 1\n On October 13, 1994, Defendant-Appellant Thomas D'Andrea (\"D'Andrea\") was indicted on one count of bank fraud in violation of 18 U.S.C. § 1344 (Count One) and six counts of making false statements to a federally insured financial institution in violation of 18 U.S.C. § 1014. After a two-week trial in the District Court of Rhode Island, a jury found D'Andrea guilty on all counts. The district court sentenced D'Andrea to five years' imprisonment on Count One and two years' imprisonment for each of the other counts, to run concurrently, and three years' supervised release on Count One and one year supervised release on the other counts, also to run concurrently. In addition, the district court ordered D'Andrea to make restitution to the Resolution Trust Corporation in the amount of $2.2 million for losses related to the fraudulent loan activities. D'Andrea now claims errors related to both the trial and sentencing phases. Concluding that the district court did not commit error, we affirm D'Andrea's conviction and sentence.\n \n BACKGROUND\n \n 2\n In late 1988, D'Andrea, Robert D'Andrea (D'Andrea's brother), Gary Lowenstein, and Michael Tulman applied for and obtained a $2.88 million loan from New England Federal Savings Bank (\"New England Federal\" or \"the bank\"), a federally insured institution. The loan was obtained for the purpose of acquiring a warehouse and truck terminal located in Cranston, Rhode Island. Because the bank would only lend up to eighty percent of the total purchase price of the warehouse, D'Andrea, and at least one of the sellers of the property, Frank Paolino, schemed to inflate the purchase price of the warehouse from just over two million dollars to $4.18 million. By so inflating the price, D'Andrea was able to receive from the bank a loan in the amount of the purchase price, thereby relieving himself and his fellow purchasers of the burden of putting any of their own money into the purchase of the warehouse.\n \n \n 3\n The scheme went as follows. D'Andrea represented to New England Federal that the purchasers would pay the $1.3 million difference required to meet the $4.18 million purchase price. In order to make up this gap, D'Andrea submitted false records to the bank indicating that certain deposits had already been made to the sellers. In addition, the bank requested agreements indicating the amount of rent paid by each of the tenants at the warehouse. D'Andrea forged the signatures of the officers of each of the warehouse tenants on documents that he then submitted to the bank. D'Andrea also submitted a document to the bank indicating a tenant-landlord relationship with a company that never rented space at the warehouse. Two witnesses testified that D'Andrea presented them with copies of documents containing falsified rental amounts for tenants at the warehouse. D'Andrea also admitted that he forged tenant signatures on tenant-at-will agreements without the knowledge or permission of officials at the tenant-companies.\n \n \n 4\n During the course of the trial, D'Andrea testified that he took pains to pay off the $2.88 million loan from New England Federal. On cross-examination of D'Andrea, the government elicited testimony that he used proceeds from a $5.9 million loan from Rhode Island Central Credit Union to pay off part of that loan. D'Andrea obtained this loan along with four others, the Zarella brothers.1 D'Andrea testified that, in obtaining this loan, he forged the signatures of the Zarella brothers' wives on a guarantee form.\n \n \n 5\n Finally, D'Andrea used the warehouse property located in Cranston, Rhode Island, obtained through the use of false documents, as security for yet another loan, for $585,000 from Rhode Island Central Credit Union.\n \n DISCUSSION\n \n 6\n D'Andrea makes numerous claims on appeal, most of which we discern to be related to his sentencing. We will consider each argument individually.\n \n \n 7\n I. Government's Use of the Phrase \"Straw Borrowers\"\n \n \n 8\n Without citation to any supporting case law, D'Andrea argues as follows:\n \n \n 9\n At trial, over D'Andrea's objection, the prosecutor repeatedly asked D'Andrea whether he used 'straw borrowers' in his dealings with Rhode Island Central Credit Union.... D'Andrea denied using 'straws', but regardless, the jury could not have been unaffected, because the term 'straw borrowers' was a hot-button term repeatedly used by the news media to describe unsophisticated participants in real estate ventures who were said to [have] been induced to join with real estate developers in funding speculative and unsound real estate ventures.\n \n \n 10\n We read this statement to be an argument that the prejudicial effect of the government's use of the term \"straw borrowers\" so outweighed its probative value that the district court should have barred use of the term. \"Unfairly prejudicial evidence is evidence ... that 'triggers [the] mainsprings of human action [in such a way as to] cause the jury to base its decision on something other than the established proposition in the case.' \" United States v. Currier, 836 F.2d 11, 18 (1st Cir.1987) (quoting 1 Weinstein's Evidence § 403, 36-39 (1986)).\n \n \n 11\n We review a district court's evidentiary rulings for abuse of discretion. United States v. Trenkler, 61 F.3d 45, 56 (1st Cir.1995). We grant a district court's on-the-spot determination of prejudice and probativeness wide latitude and \" '[o]nly in exceptional circumstances will we reverse the exercise of a district court's informed discretion vis-a-vis the relative weighing of probative value and unfairly prejudicial effect.' \" United States v. DiSanto, 86 F.3d 1238, 1252 (1st Cir.1996) (quoting Currier, 836 F.2d at 18), cert. denied, --- U.S. ----, 117 S.Ct. 1109, 137 L.Ed.2d 310 (1997).\n \n \n 12\n Although the judge did not make explicit findings regarding the probativeness of the inquiry into the use of \"straw borrowers,\" the government stated that it was pursuing the inquiry as rebuttal to D'Andrea's statement that he had approximately $100,000 on deposit with Rhode Island Central Credit Union when the credit union closed. The government was attempting to show that, although D'Andrea lost a significant sum of money because of the failure of the credit union, he also owed the credit union millions of dollars, including money from loans obtained using others' names.\n \n \n 13\n The government's line of questioning was probative for rebuttal purposes and was limited in nature. \"Rebuttal evidence may be introduced to explain, repel, contradict or disprove an adversary's proof.\" United States v. Laboy, 909 F.2d 581, 588 (1st Cir.1990). Moreover, once the government established in a matter of five questions that D'Andrea claimed no knowledge of such loans, it moved on and did not refer to \"straw borrowers\" again during the course of the trial. We find that the district court did not abuse its discretion.\n \n II. Sentencing Issues\n A. Relevant Conduct\n \n 14\n D'Andrea's next claim of error suggests that the district court's judgment during sentencing was somehow tainted by its consideration of the term \"straw borrowers\":\n \n \n 15\n D'Andrea's prominent role as a major borrower from [Rhode Island Central Credit Union] could not have been ignored by Judge Lagueux in his assessment of D'Andrea's culpability, and it was his involvement in the latter that fatally infected the court's judgment in the New England Federal Savings Bank case.... D'Andrea was not on trial for his activities involving the RISDIC-insured credit unions; and the prosecutor's questions [regarding \"straw borrowers\"] were clearly intended to inflame the jury and the court.\n \n \n 16\n * * * * * *\n \n \n 17\n In considering the Government's position, Judge Lagueux noted D'Andrea's objections, but considered D'Andrea's forgery of the Zarrella wive's [sic] signatures on the loan guarantee as \"relevant conduct\"....\n \n \n 18\n At the same time the trial judge assumed that the Zarrellas['] role in that transaction was ... fraudulent, and he made no finding that the Zarrellas, or for that matter, any of the other alleged \"straw borrowers\" were involved in a scheme to defraud Rhode Island Central Credit Union, were unsophisticated investors, or were unaware of the obligations they were incurring....\n \n \n 19\n Appellant's Brief at 22-24. Although appellant's brief is difficult to decipher, D'Andrea appears to object both to the district court's consideration of D'Andrea's forgery of the Zarellas' wives' signatures and to the district court's consideration of the alleged fraudulent nature of the loan D'Andrea obtained from Rhode Island Central Credit Union with the Zarellas. Both claims lack merit.\n \n \n 20\n First, the district court's determination that D'Andrea's forgery constituted \"relevant conduct\" is a finding of fact, which we review for clear error. United States v. Tejada-Beltran, 50 F.3d 105, 109 (1st Cir.1995). For the sentencing court to consider uncharged conduct at sentencing, \"the government must show a sufficient nexus between the conduct and the offense of conviction by a preponderance of the evidence.\" United States v. Young, 78 F.3d 758, 763 (1st Cir.1996). Under the Sentencing Guidelines, \"relevant conduct\" includes acts \"that were part of the same course of conduct or common scheme or plan as the offense of conviction.\" U.S.S.G. § 1B1.3. For actions in the Rhode Island Central Credit Union loan acquisition and the charged offense to be considered part of a common scheme or plan, \"they must be substantially connected to each other by at least one common factor, such as common victims, common accomplices, common purpose, or similar modus operandi.\" U.S.S.G. § 1B1.3, Commentary.\n \n \n 21\n We believe that the district court properly concluded that the use of forgery to obtain the Rhode Island Central Credit Union loan was part of the same scheme or plan as D'Andrea's fraudulent efforts to obtain the loan from New England Federal. D'Andrea used proceeds from the fraudulently obtained $5.9 million credit union loan to pay off portions of the first fraudulently obtained bank loan. This, as the district court noted, amounted to a scheme by which D'Andrea \"robb[ed] Peter to pay Paul.\" Transcript of Sentencing Hearing, September 7, 1995, at 16. We cannot find any error here, let alone clear error.\n \n \n 22\n Second, the record offers some indication that the sentencing court considered D'Andrea's use of straw borrowers as part of the fraud he perpetrated on Rhode Island Central Credit Union to obtain the $5.9 million loan. To be considered \"relevant conduct,\" the government must prove D'Andrea's actions by a preponderance of the evidence. At trial, D'Andrea denied use of straw borrowers and nothing in the pre-sentencing report supports, by a preponderance of the evidence, the conclusion that D'Andrea used the Zarellas as straw borrowers. Although, on this record, it does not appear that a showing by a preponderance of the evidence was made by the government regarding D'Andrea's use of straw borrowers, we have already determined that the loan was properly before the court as \"relevant conduct\" based on the forgery.\n \n \n 23\n Moreover, at the sentencing proceeding, D'Andrea's trial counsel objected to enhancement of D'Andrea's offense level on the basis of his use of straw borrowers only as it related to what he considered triple counting: use of the loan to calculate the measure of loss as a result of D'Andrea's fraudulent activities; use of the loan as \"relevant conduct\"; and use of the loan to determine D'Andrea's role in the offense.2 D'Andrea did not object that the government had failed to prove uncharged \"straw borrowers\" conduct by a preponderance of the evidence to justify its consideration as \"relevant conduct,\" as he appears to charge here. Because D'Andrea did not preserve this argument below, we review only for plain error. See United States v. Bennett, 60 F.3d 902, 905 (1st Cir.1995) (rejecting appellant's argument raised for the first time on appeal where different argument accompanied his objection below); United States v. Tutiven, 40 F.3d 1, 7-8 (1st Cir.1994) (applying plain error to sentencing argument that was not preserved below), cert. denied, 514 U.S. 1031, 115 S.Ct. 1391, 131 L.Ed.2d 243 (1995). Under this standard, we \"will reverse only if the error 'seriously affect[ed] the fundamental fairness and basic integrity of the proceedings.' \" United States v. Tuesta-Toro, 29 F.3d 771, 775 (1st Cir.1994), cert. denied, 513 U.S. 1132, 115 S.Ct. 947, 130 L.Ed.2d 890 (1995). Because the $5.9 million loan was properly before the sentencing court as \"relevant conduct\" based on the forgeries alone, the district court's consideration of the loan based on other factors cannot be plain error.\n \n B. Amount of Loss\n \n 24\n D'Andrea claims error both in the sentencing court's failure to depart downward for multiple loss causation regarding the amount of loss to New England Federal and in the sentencing court's consideration of the Rhode Island Central Credit Union loan in calculating overall loss.\n \n 1. The New England Federal Loan\n \n 25\n Regarding the New England Federal loan, D'Andrea contends that the loss of $2.2 million3 to New England Federal, and its successor, Resolution Trust Corporation, had more to do with the economic climate in which it later sold the property to recover some of its loss than it had to do with D'Andrea's conduct. He appears to argue that the district court should have recognized the multiple loss causation and departed downward to accommodate it.\n \n \n 26\n We begin by noting that the loss table in section 2F1.1 of the Sentencing Guidelines \"presumes that the defendant alone is responsible for the entire amount of victim loss specified in the particular loss range selected by the sentencing court.\" United States v. Gregorio, 956 F.2d 341, 347 (1st Cir.1992). Commentary to section 2F1.1 states that a sentencing court may depart downward where it finds the loss was caused by factors in addition to the defendant's conduct:In a few instances, the total dollar loss that results from the offense may overstate its seriousness. Such situations typically occur when a misrepresentation is of limited materiality or is not the sole cause of the loss.... In such instances, a downward departure may be warranted.\n \n \n 27\n U.S.S.G. § 2F1.1, Commentary.\n \n \n 28\n We lack jurisdiction to review the district court's decision not to depart downward under the long-standing rule that \"a criminal defendant cannot ground an appeal on a sentencing court's discretionary decision not to depart below the guideline sentencing range.\" United States v. Pierro, 32 F.3d 611, 619 (1st Cir.1994), cert. denied, 513 U.S. 1119, 115 S.Ct. 919, 130 L.Ed.2d 799 (1995); see generally, United States v. Tucker, 892 F.2d 8, 9 (1st Cir.1989) (holding defendant may not appeal a district court's decision not to depart downward).\n \n \n 29\n 2. The Rhode Island Central Credit Union Loan\n \n \n 30\n D'Andrea's argument here appears to suggest that the $5.9 million loss was not foreseeable to him because he thought he was negotiating a non-recourse loan. At trial, D'Andrea contended that he was convinced after discussions with the credit union's president, John Lanfredi, that the loan was to be non-recourse and, therefore, the bank could not pursue the borrowers for recourse in the event of default. Because of this misperception, D'Andrea seems to suggest that he could not have foreseen the loss and thus cannot be held liable for the amount of that loss.\n \n \n 31\n The record shows only the following comment from D'Andrea's counsel regarding the loss calculation: \"The defendant contends under Section F1.1(b)(1)(L) that the principal and actual loss was 1.3 million and no other factors should be considered to determine the characteristic level.\" Addendum to the Presentence Report, at 2. We accordingly find that D'Andrea failed to preserve any foreseeability argument for appeal, and review only for plain error. Tuesta-Toro, 29 F.3d at 775. We discern no such error here.\n \n C. Role in the Offense\n \n 32\n D'Andrea argues that the sentencing court committed reversible error when it determined, in finding that D'Andrea was a \"leader\" or \"organizer\" under U.S.S.G. section 3B1.1, that D'Andrea's fraud included at least five participants or was otherwise extensive. D'Andrea presents no caselaw to support this proposition. Typically, finding an error of this sort, we vacate the sentence and remand to the sentencing court for resentencing. See, e.g., United States v. Wester, 90 F.3d 592, 599-600 (1st Cir.1996) (vacating appellant's sentence and remanding case for resentencing upon a determination that the sentencing court had not made clear and legally supportable findings that the defendant was a leader or organizer of a fraud involving five or more participants or that was otherwise extensive).\n \n \n 33\n The district court's findings regarding D'Andrea's role in the offense are fact-intensive and we review them for clear error. See United States v. Rostoff, 53 F.3d 398, 413 (1st Cir.1995). In finding that D'Andrea was a leader or organizer of this fraud, the sentencing court determined the following:\n \n \n 34\n There's no question that he was an organizer or leader of this transaction and he enlisted two other people, [Tulman] and Lowenstein, in this transaction. There's very little evidence about [Tulman] or Lowenstein that was presented in this case but certain[ly] they had to be aware of some of the Defendant's activities in securing this fraudulent loan and making all these false statements with the bank. Paolino was in effect a co-conspirator with him. The evidence is clear on that. Paolino had to know that this was a great big fraud, that the real purchase price for the property was $2.8 million and not $4.1 million as stated in the purchase and sale agreement.... [Pat Paolino] did [D'Andrea's] road running to get all the fraudulent tenant letters together to fool the bank. And Michael Favicchio, another actor in this, he was the mortgage broker. He was the most nervous witness I ever saw on the witness stand. Michael Favicchio knew what was going on. He wanted his fee as a mortgage broker and so he transmitted all this material that was coming from the Defendant to the bank. He didn't tell all he knew from the witness stand but he was a participant in this fraud whether wittingly or unwittingly. So there were at least five participants in this particular fraud and, of course, there were the Zarrellas in the other banking fraud with Rhode Island Central Credit Union and his forgery of the Zarrella wives' signatures. So it seems to me that the first test is met that he was an organizer or leader with five or more participants. In any event, it was an otherwise extensive fraud and there was one other co-conspirator, Paolino, and so both prongs of that adjustment are met in this case and the total offense level should be increased by four.\n \n \n 35\n Transcript of Sentencing Hearing, at 18-19. A court making a four-level role-in-the-offense adjustment under U.S.S.G. section 3B1.1(a) must first determine \"whether the defendant acted as an organizer/leader of a specific criminal activity. If so, the court asks the separate question of whether that criminal activity involved five or more participants, defined in the Commentary as persons who are 'criminally responsible for the commission of the offense....' \" United States v. Preakos, 907 F.2d 7, 10 (1st Cir.1990) (quoting U.S.S.G. § 3B1.1, Commentary). D'Andrea does not challenge the sentencing court's initial finding that he was an organizer or leader of criminal activity. His argument focuses on whether the district court properly found five participants in his fraud.\n \n \n 36\n The record indicates that the district court set out the individuals involved in the transaction, without making a specific finding that each was a \"participant.\" We need not determine, however, whether the court could have found by a preponderance of the evidence that D'Andrea's fraud involved five criminally responsible \"participants.\" \"Since the relevant language of subsection[ ] (a) ... is disjunctive, either extensiveness or numerosity is a sufficient predicate for a ... four-level upward adjustment.\" Rostoff, 53 F.3d at 413. Thus, we affirm the district court's determination of D'Andrea's role in the offense because it properly found that his fraud was \"otherwise extensive.\"\n \n \n 37\n \"[A] determination that a criminal activity is 'extensive' within the meaning of section 3B1.1 derives from 'the totality of the circumstances, including not only the number of participants but also the width, breadth, scope, complexity, and duration of the scheme.' \" Id. at 414 (quoting United States v. Dietz, 950 F.2d 50, 53 (1st Cir.1991)). The commentary to the Guidelines provides: \"In assessing whether an organization is 'otherwise extensive,' all persons involved during the course of the entire offense are to be considered. Thus, a fraud that involved only three participants but used the unknowing services of many outsiders could be considered extensive.\" U.S.S.G. § 3B1.1, Commentary. Where a sentencing court finds that the defendant's scheme involved one other criminally responsible participant, the \"court is free to consider the use of unwitting outsiders in determining [whether] a criminal enterprise is 'extensive' within the contemplation of section 3B1.1.\" Dietz, 950 F.2d at 53. D'Andrea's criminal activity, including relevant conduct, involved a fraud against two financial institutions whereby he obtained loans for a total of $8.1 million by submitting to those institutions documents that contained false financial information and the forged signatures of tenants and guarantors. D'Andrea's forgeries of the tenants' signatures attested to the accuracy of the financial information supplied to the bank, while his forgeries of the Zarellas' wives' signatures bound the wives to guarantee a loan in the amount of $5.9 million. He conspired with Frank Paolino, a participant under section 3B1.1, to falsify the actual sale price of the property. He manipulated figures involved in the transaction to indicate that he and his co-purchasers were investing $1.3 million of their own money into the sale, when, in fact, they were not investing any of their own money. He also used the witting or unwitting services of Michael Favicchio, Pat Paolino, Michael Tulman, and Gary Lowenstein to secure the $2.88 million New England Federal loan, and of the four Zarella brothers and their wives, to obtain the $5.9 million Rhode Island Central Credit Union loan. We find that the sentencing court quite properly determined that D'Andrea's fraudulent schemes were extensive and thus supported a four-level role-in-the-offense enhancement.\n \n \n 38\n D'Andrea further argues that the sentencing judge's determination that his criminal activities were extensive impermissibly mixes \"legitimate loans and development activities with isolated instances of criminal conduct.\" Absolutely nothing in the record indicates that the sentencing judge considered any activities, legitimate or illegitimate, beyond those related to the New England Federal and Rhode Island Central Credit Union loans. This argument, unsupported by the record, does not alter our finding of no error in the sentencing court's extensiveness determination.\n \n D. Obstruction of Justice\n \n 39\n The sentencing court enhanced D'Andrea's base offense level by two points for obstruction of justice under U.S.S.G. § 3C1.1. Under that section, the sentencing court must increase the offense level by two \"[i]f the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense....\" U.S.S.G. § 3C1.1. Perjury falls within the scope of obstruction of justice. See U.S.S.G. § 3C1.1, Commentary. The sentencing court found that D'Andrea committed perjury on four separate occasions during the trial:\n \n \n 40\n I conclude that two points should be added for obstruction of justice because the Defendant committed perjury during this trial. He committed perjury time and time again. His main approach to his testimony was to lie about everything until he was backed up against the wall and then he admitted the truth, admitted forgery, but then tried to rationalize them. I can think of four instances where he committed perjury. He committed perjury concerning his lack of knowledge of the amount of money that was in the tenant letters. He denied forging some, admitted forging others. He forged them all. He committed perjury by claiming that there was another purchase and sale agreement that didn't have the words 'as is' in it. Such document was never found or presented. He was just lying through his teeth. There was no such document. He lied about his conversation with Patty El[der]. What Patty El[der] said concerning the amount of money that had to be available at closing. And he lied about the work credits. That was a substantial part of the fraud. He claimed that there were legitimate work credits taken off the purchase price to get it down to two million eight. The figures didn't even add up.\n \n \n 41\n Transcript of Sentencing Hearing, at 20.\n \n \n 42\n A determination of perjury must be based on the traditional perjury test as explained by the Supreme Court in United States v. Dunnigan, 507 U.S. 87, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993). Dunnigan requires a finding that \"[a] witness testifying under oath or affirmation ... [gave] false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory.\" Dunnigan, 507 U.S. at 94, 113 S.Ct. at 1116. Here, the court found at least four instances of perjury, \"but any one is sufficient\" to uphold the adjustment. See United States v. Webster, 54 F.3d 1, 8 (1st Cir.1995).\n \n \n 43\n The matters regarding which the court found D'Andrea offered false testimony were material because they concern D'Andrea's specific intent to commit fraud, an element the jury must have found to support a guilty verdict. The sentencing court's findings of perjury cannot be overturned unless they are clearly erroneous. United States v. Tracy, 36 F.3d 199, 202 (1st Cir.), cert. denied, 513 U.S. 1031, 115 S.Ct. 609, 130 L.Ed.2d 518 (1994).\n \n \n 44\n Even if the record, read generously to appellant, might conceivably support some less damning scenario--and we do not suggest that it can--we would not meddle. Our review is only for clear error--and \"where there is more than one plausible view of the circumstances, the sentencing court's choice among supportable alternatives cannot be clearly erroneous.\"\n \n \n 45\n Tejada-Beltran, 50 F.3d at 110. Here, there was ample evidence, considering only D'Andrea's false testimony regarding his forgery of both tenant and guarantor signatures, to find that he willfully obstructed justice. On more than one occasion, D'Andrea testified on direct examination that he had permission to sign a tenant or guarantor signature, only to be caught in his lie on cross-examination and to be forced to acknowledge that he indeed committed forgery without the permission or knowledge of the pertinent \"signatory.\" The sentencing court could easily have found that such direct testimony was not the result of confusion, mistake, or faulty memory. This single finding of perjury is sufficient to uphold the sentencing court's obstruction of justice enhancement. We further note in passing, that support for the sentencing court's other findings of perjury exist in the record and preclude a finding that they were clearly erroneous. See id.\n \n E. Restitution Order\n \n 46\n D'Andrea implores us to vacate the sentencing court's imposition of $2.2 million restitution to be paid to Resolution Trust Corporation, the successor to New England Federal. He contends that such action is warranted because \"[r]estitution in the amount ordered by [J]udge Lagueux is, as a practical matter, virtually impossible of fulfillment, regardless of D'Andrea's post-imprisonment earning capacity, and his sentence should reflect that reality.\" Appellant's Brief at 43. D'Andrea's argument, then, is that the restitution order cannot stand because the sentencing court failed to properly take into consideration his ability to pay such an amount. The sentencing court found the following:\n \n \n 47\n On all these supervised release terms I impose a condition that the Defendant make restitution to the Resolution Trust Corporation in the amount of $2.2 million. I realize that's probably unrealistic. I realize that the Defendant probably will never earn anything close to that in the future when he comes out of prison. But I want him to be aware that he has that obligation and that any earnings that he makes will go toward restitution.\n \n \n 48\n Transcript of Sentencing Hearing, at 32.\n \n \n 49\n \"In fashioning a restitution order, a court must consider 'the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant's dependents, and such other factors as the court deems appropriate.' \" United States v. Newman, 49 F.3d 1, 10 (1st Cir.1995) (quoting 18 U.S.C. § 3664(a) (1988)). The sentencing court is not required to base its determination on a finding that the defendant has the ability to repay the ordered amount of restitution. United States v. Royal, 100 F.3d 1019, 1033 (1st Cir.1996). Instead, there must only be an indication that the sentencing court considered D'Andrea's financial situation in arriving at its figure. Id. The record here sufficiently supports the conclusion that the sentencing court considered all of the relevant factors in making its determination. That is all that is required.\n \n \n 50\n Moreover, should this restitution order prove so unreasonably onerous that D'Andrea is clearly unable to meet his responsibilities, he may move the district court to modify it pursuant to 18 U.S.C. § 3663(g).\n \n III. Judicial Misconduct\n \n 51\n D'Andrea peppers the \"Argument\" section of his appellate brief with allegations of judicial bias and misconduct.4An inquiry into the judge's conduct of the trial necessarily turns on the question of whether the complaining party can show serious prejudice.... In answering this question a reviewing court must evaluate the judge's actions 'according to a standard of fairness and impartiality, recognizing that each case tends to be fact-specific.' ... This process requires the reviewing court to differentiate between expressions of impatience, annoyance or ire, on the one hand, and bias or partiality, on the other.\n \n \n 52\n Logue v. Dore, 103 F.3d 1040, 1045 (1st Cir. 1997) (quoting United States v. Polito, 856 F.2d 414, 418 (1st Cir.1988)) (citations omitted).\n \n \n 53\n D'Andrea points to nothing in the record to support his allegations, nor does he demonstrate any prejudice. After painstakingly poring over nearly 1,450 pages of transcript from both the trial and sentencing hearing, we are left with the unmistakable conclusion that Judge Lagueux did not engage in a single act of \"impatience, annoyance or ire,\" let alone bias or misconduct. D'Andrea's allegations are meritless.\n \n CONCLUSION\n \n 54\n Based on the foregoing considerations, we affirm the district court's rulings.\n \n \n \n *\n Of the District of Massachusetts, sitting by designation\n \n \n 1\n This name is spelled \"Zarella\" in the trial transcript and \"Zarrella\" in the sentencing hearing transcript. For purposes of consistency, we will use the spelling \"Zarella.\" Some quotations taken from Appellant's Brief contain the spelling \"Zarrella.\"\n \n \n 2\n D'Andrea's counsel's objection was stated as follows:\n In addition, your Honor, it's counsel's opinion that all of the reference with respect to the adjustment for the role of the offense of straw borrowers in the state case, cases, is, again, an attempt with an increase of a level 4 to subject Mr. D'Andrea to additional punishment for something that has not been decided. I realize there are federal cases that say in fact that can be done. My point is that it's being done three times to him on three different levels for three different types of consideration under the guidelines. I don't think that's appropriate. Certainly if the Court finds that it's \"relevant conduct\" it can consider it. But it considers it as to the amount of the loan, as to the \"relevant conduct\", as to his participation in the offense. It's all the same thing. But yet he gets increased levels for that kind of activity and I don't think that's appropriate.... So my suggestion to the Court is that although the level with respect to fraud is six it can be increased but it should not be increased three fold with respect to those particular items.\n Transcript of Sentencing Hearing, at 13-14.\n \n \n 3\n The amount of loss was determined by subtracting from the original $2.88 million loan the amount recovered at the ultimate sale of the property by Resolution Trust Corporation, roughly $600,000\n \n \n 4\n Appellant's bald assertions of misconduct include the following:\n --\"D'Andrea's prominent role as a major borrower from [Rhode Island Central Credit Union] could not have been ignored by Judge Lagueux in his assessment of D'Andrea's culpability, and it was his involvement in the latter that fatally infected the court's judgment in the New England Federal Savings Bank case.\" (citing to a newspaper article in the March 6, 1996 issue of the Providence Sunday Journal). Appellant's Brief, at 22.\n --\"Given the depressed economic climate and hostile political atmosphere prevailing in Rhode Island since 1991, and the fact that Rhode Islanders will be repaying the losses ... well into the 21st Century, it is unsurprising that heavy borrowers, including D'Andrea would be demonized, both in the public mind, and as political scapegoats. Judge Lagueux also appears to have been infected by the clamor, and that his sentence reflected a willingness to punish D'Andrea for his involvement with [Rhode Island Central Credit Union], on a dubious theory of liability, without specific proof of fraud or conspiracy presented.\" Id. at 26.\n --\"Moreover, [Rhode Island Central Credit Union], a privately insured financial institution, subject to weak state regulation and political intrigue with the Rhode Island Legislature and Statehouse makes a weak case on which the Government can rely. Absent proof he violated specific prohibitions, moral condemnation is not enough to sustain D'Andrea's punishment.... This distinction was apparently lost on Judge Lagueux, and he regarded the [Rhode Island Central Credit Union] and [New England Federal] transactions as correlatives both in time and intent. Given the limited information the judge had before him, linking the two together in his own mind in order to quadruple the punishment meted out to D'Andrea strongly suggests that the prior publicity about RISDIC and [Rhode Island Central Credit Union] had an effect.\" Id. at 30.\n --\"A fair reading of the sentencing hearing transcript yields but one conclusion, that Judge Lagueux's comments from the bench say more about what he thought D'Andrea stood for than about conduct for which D'Andrea bears legitimate responsibility.\" Id. at 35-36.\n --\"Judge Lagueux determined that virtually every disagreement between D'Andrea's testimony and the testimony of witnesses against him was perjurious. Those findings were entirely one-sided and unfair.... The entire tenor of Judge Lagueux's comment showed his predisposition to discount everything D'Andrea said, regardless of the probability that one or more of the Government's witnesses was not telling the entire truth.\" Id. at 39-41.\n \n \n ",
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| First Circuit | Court of Appeals for the First Circuit | F | USA, Federal |
247,437 | null | 1959-02-24 | false | united-states-steel-corporation-of-the-steamer-elbert-h-gary-v-detroit | null | null | United States Steel Corporation, of the Steamer Elbert H. Gary v. Detroit & Cleveland Navigation Company, a Michigan Corporation, Etc., Detroit & Cleveland Navigation Company, a Michigan Corporation, Etc., Cross-Appellant v. United States Steel Corporation, of the Steamer Elbert H. Gary, Cross-Appellee | null | null | null | null | null | null | null | null | null | null | null | 1 | Published | null | null | [
"264 F.2d 247"
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| [
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"opinion_text": "264 F.2d 247\n UNITED STATES STEEL CORPORATION, Claimant of the SteamerElbert H. Gary, Appellant,v.DETROIT & CLEVELAND NAVIGATION COMPANY, a Michigancorporation, etc., Appellee.DETROIT & CLEVELAND NAVIGATION COMPANY, a Michigancorporation, etc., Cross-Appellant,v.UNITED STATES STEEL CORPORATION, Claimant of the SteamerElbert H. Gary, Cross-Appellee.\n Nos. 13637, 13638.\n United States Court of Appeals Sixth Circuit.\n Feb. 24, 1959.\n \n Arter, Haddon, Wykoff & Van Duzer, Cleveland, Ohio, Watson, Lott & Wunsch, Detroit, Mich., for United States Steel Corp., etc.\n Foster, Meadows & Ballard, John A. Hamilton, Detroit, Mich., for Detroit & Cleveland Navigation Co., etc.\n Before ALLEN and McALLISTER, Circuit Judges, and MATHES, District judge.\n PER CURIAM.\n \n \n 1\n The above cause coming on to be heard upon the briefs of the parties, the transcript of record, and the arguments of counsel in open court, and the court being fully advised, Now, Therefore,It is Ordered, Adjudged and Decreed that the judgment of the District Court, Detroit & Cleveland Nav. Co. v. The Elbert H. Gary, 161 F. Supp. 570, be and is hereby affirmed upon the findings of fact and conclusions of law of Judge O'Sullivan.\n \n ",
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| Sixth Circuit | Court of Appeals for the Sixth Circuit | F | USA, Federal |
2,672,317 | null | 2011-05-27 | false | machon-lyons-v-direct-general-insurance-company-of | null | Machon Lyons v. Direct General Insurance Company of Mississippi | null | null | null | null | null | null | null | null | null | null | null | null | 0 | Published | null | null | null | [
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"opinion_text": " IN THE SUPREME COURT OF MISSISSIPPI\n\n NO. 2011-CT-00896-SCT\n\nMACHON LYONS\n\nv.\n\nDIRECT GENERAL INSURANCE COMPANY OF\nMISSISSIPPI\n\n ON WRIT OF CERTIORARI\n\nDATE OF JUDGMENT: 05/27/2011\nTRIAL JUDGE: HON. JAMES LAMAR ROBERTS, JR.\nCOURT FROM WHICH APPEALED: MONROE COUNTY CIRCUIT COURT\nATTORNEY FOR APPELLANT: LANCE L. STEVENS\nATTORNEYS FOR APPELLEE: WALKER REECE GIBSON\n MICHAEL WAYNE BAXTER\n ANDY LOWRY\nNATURE OF THE CASE: CIVIL - INSURANCE\nDISPOSITION: THE JUDGMENT OF THE COURT OF\n APPEALS IS AFFIRMED. THE JUDGMENT\n OF THE MONROE COUNTY CIRCUIT\n COURT IS REVERSED AND THE CASE IS\n REMANDED - 02/13/2014\nMOTION FOR REHEARING FILED:\nMANDATE ISSUED:\n\n EN BANC.\n\n DICKINSON, PRESIDING JUSTICE, FOR THE COURT:\n\n¶1. An insurance company denied an injured passenger’s personal-injury claim against\n\nthe driver because its policy excluded any coverage for the person who was driving, and who\n\nwas also the tortfeasor. The circuit court granted the insurance company summary judgment.\n\nBut because – to the extent of statutorily required liability coverage – the policy exclusion\n\nviolates Mississippi law, we reverse in part.\n\f FACTS AND PROCEDURAL HISTORY\n\n¶2. Machon Lyons suffered severe injuries in an single-car automobile accident. The\n\naccident occurred when a Chevrolet Lumina operated by Roderick Holliday -- in which\n\nLyons was a passenger -- left the road and collided with a tree. As a result, Lyons obtained\n\na default judgment of $72,500 against Holliday.\n\n¶3. Holliday’s mother, Daisy Lang, insured the Chevrolet Lumina through Direct General\n\nInsurance Company of Mississippi. Lang’s policy included a provision specifically\n\nexcluding Holliday from any coverage under the policy. Accordingly, Direct denied\n\ncoverage for the judgment.\n\n¶4. Lyons sought a declaratory judgment, asking the Circuit Court of Monroe County to\n\nhold that Lang’s policy covered the judgment against Holliday. Lyons acknowledged the\n\npolicy exclusion, but argued that Lang’s policy covered the judgment against Holliday\n\nbecause Mississippi law1 requires minimum-liability coverage for all permissive drivers, and\n\nbecause Lang’s insurance card – provided to Lang by Direct General for use as evidence of\n\ncoverage – failed to mention any permissive-driver exclusions. This, according to Lyons,\n\ncreated an ambiguity that should be resolved in favor of the injured party.\n\n¶5. The circuit court granted summary judgment in favor of Direct, finding that the policy\n\nclearly and specifically excluded coverage of Holliday. Lyons appealed.\n\n\n\n\n 1\n Miss. Code Ann. § 63-15-43 (Rev. 2013).\n\n 2\n\f¶6. The Mississippi Court of Appeals reversed,2 finding that Mississippi Code Section\n\n63-15-4(2)(a) requires liability insurance for all vehicles operated in Mississippi and that\n\nMississippi Code Section 63-15-43 requires that the liability insurance policy “[s]hall pay\n\non behalf of the named insured and any other person, as insured, using any such motor\n\nvehicle or motor vehicles with the express or implied permission of such named insured. .\n\n. .”3 Accordingly, the court held that an insured’s policy must cover all permissive drivers,\n\nrendering the named-driver exclusion void up to the minimum coverage limits.4 Although\n\nthe Court of Appeals reached the right result, it cited as its authority the incorrect statute, so\n\nwe granted certiorari.\n\n ANALYSIS\n\n¶7. In its petition for certiorari, Direct argues that the Court of Appeals erred because\n\nSection 63-15-43 does not establish the requirements for minimum mandatory liability\n\ncoverage. Rather, Direct argues that Section 63-15-3(j) provides the minimum requirements\n\nfor mandatory liability insurance and, because that section lacks any requirement for\n\ncoverage of all permissive drivers, its named-driver exclusion – which unambiguously\n\nexcludes Holliday as a covered driver – is valid under Mississippi law.\n\n¶8. Mississippi law requires liability insurance for every motor vehicle operated within\n\nthe state:\n\n\n\n 2\n Lyons v. Direct Gen. Ins. Co. of Miss., No. 2011-CA-00896-COA, 2012 WL 6117874\n(Miss. Ct. App. Dec. 11, 2013).\n 3\n Miss. Code Ann. § 63-15-43(2)(b) (Rev. 2013).\n 4\n Lyons, 2012 WL 6117874, at *3.\n\n 3\n\f Every motor vehicle operated in this state shall have an insurance card\n maintained in the motor vehicle as proof of liability insurance that is in\n compliance with the liability limits required by Section 63-15-3(j). The\n insured parties shall be responsible for maintaining the insurance card in each\n motor vehicle.5\n\nBut the Court of Appeals erred by finding that “[t]he requirements for these mandatory\n\nliability insurance policies are set out in section 63-15-43 of the Mississippi Code.”6 Section\n\n63-15-4 specifically provides that the insurance policy must comply with the requirements\n\nof Section 63-15-3(j),7 which makes no reference to Section 63-15-43.8\n\n¶9. Further, Section 63-15-43 applies by its terms to “an owner’s or an operator’s policy\n\nof liability insurance, certified as provided in Section 63-15-39 or Section 63-15-41.”9 We\n\npreviously have addressed the precise issue of whether Section 63-15-43 applies “to all\n\nautomobile liability insurance policies issued in the State, or only to those certified as proof\n\nof financial responsibility.”10\n\n¶10. Prior to 2001, Mississippi law contained no general requirement that the owner or\n\noperator of a vehicle carry liability insurance.11 Instead, Mississippi law required that the\n\nDepartment of Public Safety suspend all automobile registrations of an owner – or the\n\n\n\n 5\n Miss. Code Ann. § 63-15-4(2)(a) (Rev. 2013).\n 6\n Lyons, 2012 WL 6117874, at *1.\n 7\n Miss. Code Ann. § 63-15-4(2)(a) (Rev. 2013).\n 8\n Miss. Code Ann. § 63-15-3(j) (Rev. 2013).\n 9\n Miss. Code Ann. § 63-15-43(1) (Rev. 2013).\n 10\n State Farm Mut. Auto. Ins. Co. v. Mettetal, 534 So. 2d 189, 190 (Miss. 1988).\n 11\n Id. at 192.\n\n 4\n\fdriver’s license of an operator – of any vehicle involved in an accident without liability\n\ninsurance, unless the owner or operator could produce proof of future financial\n\nresponsibility12 by “providing a written certificate of an insurance company ‘certifying that\n\nthere is in effect a motor vehicle liability policy for the benefit of the person required to\n\nfurnish proof of financial responsibility.’”13\n\n¶11. When the insured party in Mettetal voluntarily obtained his liability insurance policy,\n\nunrelated to any accident or proof of future financial responsibility,14 we had to determine\n\nwhether an exclusion contained in the voluntarily obtained policy – which conflicted with\n\nthe requirements of Section 63-15-43 – could be enforced.15 We held that it could because\n\n“it is clear from the language of Subsection (1) that the provisions of § 63-15-43 apply only\n\nto policies certified as proof of financial responsibility.”16\n\n¶12. Since the Mettetal decision, the Legislature has repealed the requirement for proof\n\nof future financial responsibility following an accident,17 and has adopted a requirement that\n\nall vehicles operated within the State have liability insurance.18\n\n\n\n\n 12\n Id. (citing Miss. Code Ann. § 63-15-11 (repealed March 20, 2013)).\n 13\n Id. (quoting Miss. Code Ann. § 63-15-39).\n 14\n Id. at 190.\n 15\n Id.\n 16\n Id. at 193.\n 17\n Miss. Code Ann. § 63-15-11 (repealed March 20, 2013).\n 18\n Miss. Code Ann. § 63-15-4(2)(a) (Rev. 2013).\n\n 5\n\f¶13. Likewise, in the case before us today, Section 63-15-43 is inapplicable by its own\n\nlanguage because, by its terms, it applies only to policies certified under Sections 63-15-39\n\nand 63-15-41.19 Because neither of the parties before us today suggests that the liability\n\npolicy in the present case is one certified under Sections 63-15-39 and 63-15-41, the Court\n\nof Appeals erred by applying the requirements of Section 63-15-43.\n\n¶14. But our analysis does not conclude here. Section 63-15-4(2)(b) provides that an\n\n“insurance company issuing a policy of motor vehicle liability insurance as required by this\n\nsection shall furnish to the insured an insurance card for each motor vehicle . . . . ”20 Here,\n\nthe parties stipulated that the insurance card Direct issued to Daisy Lang was her evidence\n\nof insurance coverage. Counsel for Direct confirmed at oral argument that this coverage was\n\nthe coverage required by Mississippi statute.\n\n¶15. For automobiles operated in Mississippi, Section 63-15-4(2)(a) requires that an\n\ninsurance card be “maintained in the motor vehicle,” and that the insurance card serve as\n\n“proof of liability insurance that is in compliance with the limits required by Section 63-15-\n\n3(j).”21 This statute – when read together with Section 63-15-4(2)(b), which requires the\n\ninsurance company to issue the card – leaves no doubt that an insurer may not issue an\n\ninsurance card for use as proof of coverage unless the policy complies with minimum\n\nstatutory requirements. And if the policy provides no liability coverage for certain drivers,\n\nit does not comply.\n\n 19\n Miss. Code Ann. § 63-15-43(1) (Rev. 2013).\n 20\n Miss. Code Ann. § 63-15-4(2)(b) (Rev. 2013).\n 21\n Miss. Code Ann. § 63-15-4(2)(a) (Rev. 2013) (emphasis added).\n\n 6\n\f¶16. Accordingly, we hold that Daisy Lang’s Direct General policy did not comply with\n\nthe following minimum-liability coverage requirements\n\n . . . . in the amount of Twenty-five Thousand Dollars ($25,000.00) because of\n bodily injury to or death of one (1) person in any one (1) accident, and subject\n to said limit for one (1) person, in the amount of Fifty Thousand Dollars\n ($50,000.00) because of bodily injury to or death of two (2) or more persons\n in any one (1) accident, and in the amount of Twenty-five Thousand Dollars\n ($25,000.00) because of injury to or destruction of property of others in any\n one (1) accident.22\n\n¶17. This mandatory liability insurance requirement pertains to vehicles, not owners or\n\noperators. Said differently, every vehicle operated within this State must have the statutorily\n\nrequired minimum-coverage requirements of $25,000 for injury to one person, $50,000 for\n\ninjury to two or more people, and $25,000 for property damage.23 A liability policy that\n\npurports to exclude that coverage for certain drivers fails to comply with the statutory\n\nmandate.\n\n¶18. The dissent labels as “mysterious” our belief that exclusions to the statutorily\n\nmandated minimum-liability limits must come from – or be authorized by – the Legislature.\n\nBut we find compelling the fact that the Legislature passed a lawful statute that\n\nunequivocally requires automobiles to maintain minimum-liability coverage in the amount\n\nof $25,000. Because the statute neither includes nor authorizes exclusions, we must hold\n\nthat the exclusion at issue in this case does not apply to the first $25,000 of liability. The\n\nLegislature possesses the sole power to authorize such exclusions, and automobile insurers\n\nare not free to escape the statutorily required minimum-liability coverage simply by inserting\n\n 22\n Miss. Code Ann. § 63-15-4(2)(a) (Rev. 2013)\n 23\n Miss. Code Ann. § 63-15-3(j) (Rev. 2013)\n\n 7\n\fan exclusion of their choice – no matter how well-reasoned – into their policies. Arguments\n\nfor exceptions to clear statutory requirements should be made to the Legislature, not this\n\nCourt.\n\n¶19. The dissent also states that “parties are free to agree to whatever contractual terms\n\nthey wish as long as the terms are not prohibited.” We agree. The parties indeed may\n\nnegotiate – and automobile insurers may include – exclusions from coverage, so long as\n\nthose exclusions do not emasculate the statutorily required minimum coverage. In other\n\nwords, our opinion does not invalidate the exclusion at issue today for amounts which\n\nexceed the statutorily required minimum.\n\n¶20. The dissent’s concern appears focused on other commonplace exclusions that are not\n\nat issue here. The essence of the dissent’s position is, if automobile insurers may exclude\n\nthe minimum statutory coverage for intentional acts, why not for certain drivers? While this\n\nissue is not before us, it does showcase a problem that suggests additional analysis.\n\n¶21. The dissent suggests that – so long as automobile insurers provide the minimum\n\nstatutory coverage – they are free to exclude from that coverage any acts they choose. We\n\nfind to be a non sequitur the notion that insurance companies are free to insert their own\n\nexceptions to minimum requirements. Requirements are just that – requirements – and\n\nnothing in the statute suggests that exceptions exist, or that insurance companies are\n\nauthorized to include them in their policies. Indeed, this unbridled freedom would leave\n\nautomobile insurers free to exclude coverage for accidents in which their insureds were\n\nexceeding the speed limit or under the influence of alcohol.\n\n\n\n 8\n\f¶22. We have reached a similar conclusion in the context of uninsured-motorist benefits.\n\nPakita Payne obtained an uninsured motorist policy which specifically excluded coverage\n\nwhen her husband Randy drove their car.24 We held the named-driver exclusion in that case\n\nvoid because it defeated the purposes of the statutory requirement for uninsured-motorist\n\nbenefits, and it did not meet the statutory requirements for waiver.25 Here, we have no\n\nstatutory provision for waiver. Our statutes create an absolute requirement for liability\n\ninsurance up to the statutory minimum.\n\n CONCLUSION\n\n¶23. Accordingly, we find that, even though Holliday was an excluded driver under the\n\nDirect General policy issued to Daisy Lang, the exclusion did not operate to eliminate\n\nliability coverage in the minimum amounts required by statute, so we affirm the judgment\n\nreached by the Court of Appeals, although we disagree with its citation of authority, and\n\nreverse the trial court’s grant of summary judgment and remand for proceedings consistent\n\nwith this opinion.\n\n¶24. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. THE\nJUDGMENT OF THE MONROE COUNTY CIRCUIT COURT IS REVERSED AND\nTHE CASE IS REMANDED.\n\n LAMAR, KITCHENS, CHANDLER, PIERCE AND KING, JJ., CONCUR.\nCOLEMAN, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY\nRANDOLPH, P.J. WALLER, C.J., NOT PARTICIPATING.\n\n COLEMAN, JUSTICE, DISSENTING:\n\n\n\n\n 24\n Atlanta Cas. Co. v. Payne, 603 So. 2d 343, 344 (Miss. 1992).\n 25\n Id. at 346, 347.\n\n 9\n\f¶25. I agree with the majority that the Court of Appeals erred in relying on the language\n\nof Section 63-15-43. However, in my view, the majority opinion misinterprets the interplay\n\nbetween and judicially adds to the statutory language of Mississippi Code Sections 63-15-3(j)\n\nand 63-15-4. I further believe the majority misapplies the undisputed facts regarding the\n\ncoverage in place and the insurance contract to the aforementioned statutes. Accordingly,\n\nI respectfully dissent.\n\n¶26. At issue in the instant case is the coverage – or lack thereof – provided by a policy of\n\nautomobile liability insurance issued by Direct General and bearing policy number MSPD-\n\n111604187. The policy insured the vehicle at issue, a 2000 Ford Contour, and the\n\ndeclarations page establishes that it carried limits of liability of $25,000 per person and\n\n$50,000 per accident. “Limit of liability” is defined in the policy as follows:\n\n The limit of liability shown in the Declarations for each “person” for Bodily\n Injury Liability is our maximum limit of liability for all damages . . . due to\n bodily injury sustained by any one person in any one auto accident. Subject\n to this limit for each “person”, the limit of liability shown in the Declarations\n for each “accident” for Bodily Injury Liability is our maximum limit of\n liability for all damages due to bodily injury to two or more person [sic]\n resulting from any one auto accident.\n\nThe policy also contained exclusions in addition to the driver exclusion at issue today,\n\nincluding, inter alia, exclusions for intentional acts, an employee injured during the course\n\nof employment, liability arising out of ownership or operation of a vehicle being used to\n\ncarry persons or property for hire, and the use of the insured vehicle without a reasonable\n\nbelief one is entitled to use it.\n\n\n\n\n 10\n\f¶27. With the provisions of the policy thus briefly described, I turn to the applicable\n\nstatutes, of which there are two. First, Mississippi Code Section 63-15-4(2) provides, in\n\npertinent part, as follows:\n\n (a) Every motor vehicle operated in this state shall have an insurance card\n maintained in the motor vehicle as proof of liability insurance that is in\n compliance with the liability limits required by Section 63-15-3(j). The insured\n parties shall be responsible for maintaining the insurance card in each motor\n vehicle.\n\n (b) An insurance company issuing a policy of motor vehicle liability insurance\n as required by this section shall furnish to the insured an insurance card for\n each motor vehicle at the time the insurance policy becomes effective. . . .\n\nMiss. Code Ann. § 63-15-4(2) (Rev. 2013) (emphasis added). Second, Mississippi Code\n\nSection 63-15-3(j) provides as follows:\n\n “Proof of financial responsibility” means proof of ability to respond in\n damages for liability, on account of accidents occurring subsequent to the\n effective date of said proof, arising out of the ownership, maintenance or use\n of a motor vehicle, in the amount of Twenty-five Thousand Dollars\n ($25,000.00) because of bodily injury to or death of one (1) person in any one\n (1) accident, and subject to said limit for one (1) person, in the amount of Fifty\n Thousand Dollars ($50,000.00) because of bodily injury to or death of two (2)\n or more persons in any one (1) accident, and in the amount of Twenty-five\n Thousand Dollars ($25,000.00) because of injury to or destruction of property\n of others in any one (1) accident.\n\nMiss. Code Ann. § 63-15-3(j) (Rev. 2013). I agree with the majority that Section 63-15-43\n\nlacks any controlling influence over the issue before the Court today, pursuant to our holding\n\nin State Farm Mutual Automobile Insurance Co. v. Mettetal, 534 So. 2d 189 (Miss. 1988).\n\nAs the majority points out, Section 63-15-43 harkens back to the system of certificates of\n\nfinancial responsibility, which predates Mississippi’s mandatory liability insurance\n\nrequirement. However, when the Legislature enacted the new, mandatory liability insurance\n\n\n\n 11\n\frequirement, it did so while leaving most of the statutes regulating proof of financial\n\nresponsibility intact. Reading the statutes as a whole, it appears that the Legislature\n\nsuperimposed the new mandatory insurance requirement over the proof of financial\n\nresponsibility statutes.\n\n¶28. The imposition of the mandatory liability insurance requirement over the pre-existing\n\nstatutes delineating the procedures and requirements of the older proof of financial\n\nresponsibility serves as the root of my disagreement with the majority. Just as Section 63-15-\n\n43 predates the mandatory insurance requirement, so does Section 63-15-3(j), which defines\n\n“proof of financial responsibility” and is, therefore, relevant to the requirements of liability\n\ninsurance coverage only to the extent Section 63-15-4(2)(a), quoted above, incorporates it.\n\nAccordingly, the question we must ask is to what extent, if any, does Section 63-15-4(2)(a)\n\nincorporate Section 63-15-3(j)? The plain language of 63-15-4(2)(a) gives us the answer, see\n\nLawson v. Honeywell Int’l, Inc., 75 So. 3d 1024, 1030 (Miss. 2011) (The Court “cannot .\n\n. . add to the plain meaning of the statute or presume that the legislature failed to state\n\nsomething other than what was plainly stated.”) (quoting His Way Homes, Inc. v. Miss.\n\nGaming Comm’n, 733 So. 2d 764, 769 (Miss. 1999)), which is that the liability limits given\n\nin Section 63-15-3(j) are incorporated into and required by Section 63-15-4(2)(a).\n\n¶29. In other words, the Legislature requires that liability insurance have limits of liability\n\nof $25,000 per person and $50,000 per accident. Respectfully, to do as the majority does\n\ntoday and incorporate additional language from Section 63-15-3(j) in order to limit policy\n\nexclusions improperly adds to the plain meaning of Mississippi’s statutory liability insurance\n\nrequirement. The undisputed policy language at issue in the instant case defines limits of\n\n 12\n\fliability as the greatest dollar amount the insurance company will be required to pay. The\n\nfacts of the case and contract at issue show that policy number MSPD-111604187 carried\n\nlimits of liability of $25,000 per person and $50,000 per accident.\n\n¶30. In reaching more expansively into Section 63-15-3(j) than the plain language of 63-\n\n15-4(a)(2) supports, the majority holds that all cars must be insured at all times while being\n\noperated on the roads, and because the driver exclusion at issue rendered the subject car\n\nuninsured for purposes of its operation at the time of the underlying accident, the exclusion\n\nviolates Mississippi law. Under the majority’s analysis, what other policy exclusions are\n\ninvalid? If a driver uses an otherwise-insured vehicle to cause intentional harm to another,\n\nthe damage caused would be excluded under the language of the policy in the instant case\n\nand under the language of every automobile liability insurance policy I can recall reading.\n\nHowever, under the reasoning of the majority would such an exclusion be illegal because,\n\nwhen the driver was acting with intent, the car would be uninsured? If a car was stolen and\n\nthen used to injure another, would the exclusion regarding use by one without reason to\n\nbelieve he is entitled to drive the car no longer apply? To quote the majority, in both\n\nhypothetical situations, the policy “fails to insure the vehicle to the statutory minimum for\n\na portion of the time it is operated within the state.”\n\n¶31. The majority attempts to distance itself from the problems I raise by pointing out that\n\nthe above exclusions are not at issue in the instant litigation, which is true. However, the\n\nmajority opinion announces a legal principle, that under Section 63-15-4(a), all vehicles must\n\nbe covered by liability insurance at all times while being operated upon Mississippi’s roads.\n\nThat principle has consequences that will apply to future litigation and, as I understand it, it\n\n\n 13\n\fwill apply to end all exclusions. The majority mysteriously seems to believe that, in order\n\nfor any exclusion to be valid, the Legislature must mandate it, or at least explicitly allow it,\n\nin the wording of the statute itself. However, the better statement of the law is that parties\n\nare free to agree to whatever contractual terms they wish as long as the terms are not\n\nprohibited. Koch v. H & S Dev. Co., 249 Miss. 590, 629, 163 So. 2d 710, 727 (1964)\n\n(“Provided it is not illegal or against public policy, persons have and should have the right\n\nto contract with reference to their property, their interests therein, and the use thereof with\n\nother persons, and to rely upon the terms and conditions of the contract mutually agreed\n\nupon.”). The majority accuses my dissent of opening the door to any and all exclusions, but\n\nthen itself potentially closes the door to all exclusions and fails to explain how, under the\n\nprinciple of law established, the exclusions I cite can remain valid. Because what exclusions\n\nto allow, if any, is the province of the Legislature, and the statutes in question are silent, I\n\nbelieve the better course is to allow the Legislature to make the substantive law on the\n\nquestion rather than the Court.\n\n¶32. I can find nothing in the Legislature’s enactments requiring liability insurance that\n\nprohibits policy exclusions or, to use the majority’s language, requires a vehicle to be insured\n\nunder every circumstance and at all times it is being operated within the state. What does\n\nexist is the requirement that a policy of liability insurance be attached to each vehicle being\n\noperated within the state, and that the policy have liability limits of $25,000 per person and\n\n$50,000 per accident. The car at issue had such a policy attached to it.\n\n¶33. The majority’s expansion of the phrase “liability limits,” found in Section 63-15-\n\n4(a)(2), beyond the dollar amounts of the policy limits lacks support from the undisputed\n\n\n 14\n\ffacts of the case before the Court and from the relevant statutes. Liability limits and\n\nexclusions are two separate insurance policy items, and while the statutes provide explicit,\n\nmandatory dollar-amount requirements for the former, they remain silent as to the latter.\n\nAccordingly, I respectfully dissent.\n\n RANDOLPH, P.J., JOINS THIS OPINION.\n\n\n\n\n 15\n\f",
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| Mississippi Supreme Court | Mississippi Supreme Court | S | Mississippi, MS |
1,763,568 | Erickstad, Gierke, Paul, Pederson, Sand, Vande, Walle | 1984-12-28 | false | bakke-v-st-thomas-public-school-district-no-43 | Bakke | Bakke v. St. Thomas Public School District No. 43 | Norman BAKKE, Plaintiff and Appellant, v. ST. THOMAS PUBLIC SCHOOL DISTRICT NO. 43, Defendant and Appellee | Robert E. Dahl, of Dahl, Greenagel, Cur-rie, Geiger & Petersen, Grafton, for plaintiff and appellant., Douglas R. Herman, of Yogel, Brantner, Kelly, Knutson, Weir & Bye, Fargo, for defendant and appellee. | null | null | null | null | null | null | null | null | null | null | 4 | Published | null | <parties id="b155-11">
Norman BAKKE, Plaintiff and Appellant, v. ST. THOMAS PUBLIC SCHOOL DISTRICT NO. 43, Defendant and Appellee.
</parties><docketnumber id="Ae_">
Civ. No. 10777.
</docketnumber><court id="A0rG">
Supreme Court of North Dakota.
</court><decisiondate id="Acm">
Dec. 28, 1984.
</decisiondate><br><attorneys id="b156-7">
<span citation-index="1" class="star-pagination" label="118">
*118
</span>
Robert E. Dahl, of Dahl, Greenagel, Cur-rie, Geiger & Petersen, Grafton, for plaintiff and appellant.
</attorneys><br><attorneys id="b156-8">
Douglas R. Herman, of Yogel, Brantner, Kelly, Knutson, Weir & Bye, Fargo, for defendant and appellee.
</attorneys> | [
"359 N.W.2d 117"
]
| [
{
"author_str": "De Walle",
"per_curiam": false,
"type": "010combined",
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"opinion_text": "\n359 N.W.2d 117 (1984)\nNorman BAKKE, Plaintiff and Appellant,\nv.\nST. THOMAS PUBLIC SCHOOL DISTRICT NO. 43, Defendant and Appellee.\nCiv. No. 10777.\nSupreme Court of North Dakota.\nDecember 28, 1984.\n*118 Robert E. Dahl, of Dahl, Greenagel, Currie, Geiger & Petersen, Grafton, for plaintiff and appellant.\nDouglas R. Herman, of Vogel, Brantner, Kelly, Knutson, Weir & Bye, Fargo, for defendant and appellee.\nVANDE WALLE, Justice.\nNorman Bakke appealed from the summary judgment ordered by the district court of Pembina County in favor of St. Thomas Public School District No. 43. The trial court held that Bakke had no contractual right to employment as a superintendent because he had failed to properly accept the offer of employment created by Section 15-47-27, N.D.C.C. We affirm.\nThis case involves a contractual dispute concerning the employment of Bakke as superintendent for St. Thomas School District (hereinafter School Board). Bakke was first employed as a superintendent by the School Board on July 1, 1978. Bakke's contract of employment was renewed each year thereafter until June 30, 1983, when the School Board terminated his employment. The five employment contracts, from 1978-1979 to 1982-1983, were signed between the months of April and July with the 1978-1979, 1981-1982, and 1982-1983 contracts signed on or after May 15 of those years.\nThere were no contract negotiations between Bakke, the superintendent, and the School Board for the 1983-1984 school year. Teacher contract negotiations did occur, however, between March and May 1983, but Bakke took no part in those negotiations. The School Board did not offer Bakke a contract for the 1983-1984 school year by April 15, 1983, the statutory deadline under Section 15-47-27, N.D.C.C. Bakke did not give notice of acceptance or rejection of an employment contract by May 15, 1983.\nOn June 14, 1983, the School Board held a special meeting and verbally requested Norman Bakke to resign. Bakke refused the request. On June 23, 1983, at another special meeting, the School Board presented Bakke with a written notice terminating his employment as superintendent effective June 30, 1983. Subsequently, the School Board hired another superintendent.\nBakke commenced an action requesting a writ of mandamus requiring the School Board to employ him as its superintendent for the 1983-1984 school year, or in the alternative, that he be awarded damages for breach of contract. An alternative writ of mandamus was granted ordering the School Board to contract with Bakke for employment as a superintendent for the 1983-1984 school year or to show cause for not complying with the order. The alternative writ of mandamus was vacated after the show-cause hearing. Subsequently, Bakke was allowed to amend his complaint to allege defamation of character as a new cause of action. The School Board moved the court for partial summary judgment on the ground that pursuant to Section 15-47-27, N.D.C.C., Bakke had no contractual right to employment for the 1983-1984 school year.\nThe trial court found that the School Board had failed to give Bakke written notification regarding its determination as to renewal of his contract. Under Section 15-47-27, N.D.C.C., such failure to give notice constitutes an offer to renew the contract for the ensuing year under the same terms and conditions as the contract for the current year. The trial court found that Bakke failed to give the required notice *119 of acceptance of this statutory offer on or before May 15 and that his failure relieved the School Board of the continuing contract provisions of Sections 15-47-26 through 15-47-28, N.D.C.C. The trial court determined that Bakke's failure to properly accept the offer created by statute precluded any contractual right to employment which may have given rise to a material issue of fact. The trial court granted the partial summary judgment and dismissed Bakke's first cause of action with prejudice. Bakke subsequently moved the court for amendment of the judgment to comply with Rule 54(b), N.D.R.Civ.P. The trial court granted the motion, having determined that there was no just reason for delay in dismissing Bakke's first cause of action. Norman Bakke appeals from that judgment.\nBakke contends that the trial court erred in granting summary judgment to the School Board because there were issues of material fact which the court did not consider. Bakke argues that he, as superintendent, was entitled to have the thirty-day period allowed him to accept the renewal of his contract under Section 15-47-27, N.D. C.C., tolled because of the failure of the School Board to issue a notice of nonrenewal of his contract prior to April 15.\nUnder Section 15-47-26, N.D.C.C., Bakke, as a superintendent, is included in the definition of \"teacher\" for purposes of Section 15-47-27, N.D.C.C. See Storbeck v. Oriska Sch. Dist. # 13, 277 N.W.2d 130 (N.D.1979). Section 15-47-27, N.D.C.C., provides in pertinent part that a school board must give a teacher notice by April 15 of the contract year of the board's decision to not renew the teacher's contract. Under Section 15-47-27, failure of a school board to give the required notice by April 15 creates a statutory offer to renew the employment contract and the teacher then has the responsibility to give the school board notice of his acceptance by May 15. The Section further provides that a teacher's failure to notify the school board of his acceptance relieves the school board of the continuing contract provisions of Sections 15-47-26 through 15-47-28, N.D.C.C.\nIn Enstad v. N. Cent. of Barnes Pub. Sch., Etc., 268 N.W.2d 126 (N.D.1978), this court, in an attempt to reconcile the provisions of Chapter 15-38.1, N.D.C.C., the teacher negotiation law, with Section 15-47-27, N.D.C.C., the continuing contract law, interpreted Section 15-47-27 as entitling a teacher to not less than thirty days to accept proffered employment. We held that if negotiations were in progress, such thirty days did not commence to run until the teacher was given notice by the school board informing the teacher of a date upon which she was required to accept or reject proffered reemployment.\nWe further stated in Enstad, supra, 268 N.W.2d at 131, that \"[w]here negotiations are being carried on pursuant to Chapter 15-38.1, N.D.C.C., the provisions of Section 15-47-27, N.D.C.C., requiring the board to give the teacher notice and that the teacher respond to such notice are suspended.\" We held that because North Central failed to notify Enstad on or before April 15 of a specific date by which she must accept proffered reemployment, Mavis Enstad did not lose her rights to reemployment under Section 15-47-27, N.D.C.C., by her failure to give written notice of acceptance to North Central on or before May 15.\nBakke contends that the law in Enstad, supra, is applicable to his case. He points out that our court in Enstad, 268 N.W.2d at 130, stated:\n\"Providing negotiations have not been in progress, failure on the part of the school board to provide the teacher, prior to April 15, with notice of an acceptance date voids operation of the May 15 date under the statute by which the teacher must accept reemployment, and the teacher will have not less than thirty days to accept proffered reemployment from the date the school board actually notifies the teacher of a date upon which acceptance must be made.\"\nWe note that the above quotation from Enstad is in conflict with Section 15-47-27 concerning time for renewal of teachers' contracts.\n*120 Although there are statements in Enstad that may appear to control this case, Enstad is clearly distinguishable from the facts in the case at bar. In Enstad contract negotiations were conducted between Mavis Enstad, as teacher, and the school board, while in our case there were no contract negotiations between Bakke, as superintendent, and the School Board. Thus, in light of the facts in Enstad, we were concerned that if a teacher had to comply with Section 15-47-27 she could be placed in the unreasonable position of having to give written acceptance to the statutory offer of reemployment prior to the conclusion of the negotiation process. We determined that without suspension of the provisions under Section 15-47-27, N.D. C.C., requiring notice by the school board and teachers, the result could be that unsuspecting teachers who were rightfully anticipating contract offers upon completion of the good-faith negotiation process would discover that they had no reemployment rights because the May 15 deadline had passed and they had failed to send an acceptance notice to the school board.\nThe above reasoning of this court in Enstad is inapplicable to the facts of this case.\nAny comment in an opinion which is not essential to the determination of the case and which is not necessarily involved in the action is dictum and not controlling in subsequent cases. See Spalding v. Loyland, 132 N.W.2d 914 (N.D.1964). We recently stated in First Federal Savings and Loan Assn. of Bismarck v. Scherle, 356 N.W.2d 894, 897 (N.D.1984):\n\"A prior opinion is only stare decisis on points decided therein; any expression of opinion on a question not necessary for decision is merely dictum, and is not, in any way, controlling upon later decisions. Our opinion should be read in the light of the facts of the case under discussion. To keep opinions within reasonable bounds precludes writing into them every limitation or variation which might be suggested by circumstances of cases not before the Court. Armour & Company v. Wantock, 323 U.S. 126, 132-33, 65 S.Ct. 165, 168, 89 L.Ed. 118, 123 (1944).\"\nThe provisions of Section 15-47-27, N.D.C.C., controlled the time for renewal of Bakke's contract. Because Bakke failed to comply with Section 15-47-27, he had no contractual right to reemployment as a superintendent for the 1983-1984 school year.\nWe conclude, therefore, that there was no genuine issue of material fact before the trial court and that the trial court properly applied the law to the facts of this case. See Erickson v. Farmers Union Mut. Ins. Co., 311 N.W.2d 579 (N.D.1981).\nAlthough Bakke raised other issues in his brief, the issue concerning the continuing contract law under Section 15-47-27, N.D.C.C., governs our disposition of this case. We need consider only those issues that are controlling. Sanford v. Sanden, 343 N.W.2d 776 (N.D.1984); State v. Bergeron, 340 N.W.2d 51 (N.D.1983).\nThe judgment is affirmed.\nERICKSTAD, C.J., and PEDERSON and GIERKE, JJ., concur.\nJustice Paul M. Sand, who died on December 8, 1984, was a member of this Court at the time this case was submitted.\n",
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| North Dakota Supreme Court | North Dakota Supreme Court | S | North Dakota, ND |
390,595 | null | 1981-01-15 | false | jones-v-m-t-d-products-inc | Jones | Jones v. M. T. D. Products, Inc | null | null | null | null | null | null | null | null | null | null | null | null | 3 | Published | null | null | [
"649 F.2d 859"
]
| [
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": "http://bulk.resource.org/courts.gov/c/F2/649/649.F2d.859.80-1973.html",
"author_id": null,
"opinion_text": "649 F.2d 859\n Jonesv.M. T. D. Products, Inc.\n 80-1973\n UNITED STATES COURT OF APPEALS Third Circuit\n 1/15/81\n M.D.Pa., 507 F.Supp. 8\n AFFIRMED\n ",
"ocr": false,
"opinion_id": 390595
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]
| Third Circuit | Court of Appeals for the Third Circuit | F | USA, Federal |
121,698 | null | 2002-06-24 | false | obando-v-white-warden | Obando | Obando v. White, Warden | null | null | null | null | null | null | null | null | null | null | null | null | 0 | Published | null | null | [
"536 U.S. 945"
]
| [
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": "http://bulk.resource.org/courts.gov/c/US/536/536.US.945.01-9820.html",
"author_id": null,
"opinion_text": "536 U.S. 945\n OBANDOv.WHITE, WARDEN, ET AL.\n No. 01-9820.\n Supreme Court of the United States.\n June 24, 2002.\n \n 1\n C. A. 9th Cir. Certiorari denied. Reported below: 22 Fed. Appx. 836.\n \n ",
"ocr": false,
"opinion_id": 121698
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| Supreme Court | Supreme Court of the United States | F | USA, Federal |
1,114,367 | Klein | 1995-03-15 | false | henderson-v-state | null | Henderson v. State | null | null | null | null | null | null | null | null | null | null | null | null | 3 | Published | null | null | [
"651 So. 2d 822"
]
| [
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": null,
"author_id": 6952,
"opinion_text": "\n651 So.2d 822 (1995)\nDerrick HENDERSON, Appellant,\nv.\nSTATE of Florida, Appellee.\nNo. 94-1710.\nDistrict Court of Appeal of Florida, Fourth District.\nMarch 15, 1995.\nRichard L. Jorandby, Public Defender, and Malloyre G. Cunningham, Asst. Public Defender, West Palm Beach, for appellant.\n*823 Robert A. Butterworth, Atty. Gen., Tallahassee, and Joan L. Greenberg, Asst. Atty. Gen., West Palm Beach, for appellee.\nKLEIN, Judge.\nThe appellant, Derrick Henderson appeals from his sentence as a habitual offender. The state concedes that the trial court erred in sentencing Henderson as a habitual offender because the prior convictions upon which the trial court relied to impose habitual offender status all occurred on the same day; thus, failing to meet the requirements of section 775.084(5), Fla. Stat. (1993). We reverse and remand in order to allow the trial court to resentence the defendant based upon his entire record, including other prior convictions which could support habitualization. Doggett v. State, 584 So.2d 116 (Fla. 1st DCA 1991).\nThe state also concedes that the trial court erred in failing to give Henderson credit for time served on his two concurrent sentences in violation of Daniels v. State, 491 So.2d 543 (Fla. 1986). The error in jail time credit should be corrected in case number 93-3010CF to reflect the same credit which was given in case number 93-1999CF, specifically, credit for 260 days.\nAccordingly, we reverse and remand for further proceedings consistent herewith.\nPARIENTE and SHAHOOD, JJ., concur.\n",
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| District Court of Appeal of Florida | District Court of Appeal of Florida | SA | Florida, FL |
390,667 | null | 1981-01-15 | false | buie-v-garrison | Buie | Buie v. Garrison | null | null | null | null | null | null | null | null | null | null | null | null | 0 | Published | null | null | [
"649 F.2d 862"
]
| [
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": "http://bulk.resource.org/courts.gov/c/F2/649/649.F2d.862.80-6561.html",
"author_id": null,
"opinion_text": "649 F.2d 862\n Buiev.Garrison\n 80-6561\n UNITED STATES COURT OF APPEALS Fourth Circuit\n 1/15/81\n \n 1\n E.D.N.C.\n \n VACATED AND REMANDED\n ",
"ocr": false,
"opinion_id": 390667
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| Fourth Circuit | Court of Appeals for the Fourth Circuit | F | USA, Federal |
1,075,684 | Farmer, Highers, Lillard | 1999-07-15 | false | city-of-jackson-v-jeff-butler | null | City of Jackson v. Jeff Butler | CITY OF JACKSON, Plaintiff/Appellee, v. Jeff BUTLER, Defendant/Appellant | Jeffrey Butler, Jackson, TN, pro se., C. Mark Donahoe, Spragins, Barnett, Cobb & Butler, PLC, Jackson, TN, for Appellee. | null | null | null | null | null | null | null | null | null | null | 0 | Published | null | <parties id="b272-7">
CITY OF JACKSON, Plaintiff/Appellee, v. Jeff BUTLER, Defendant/Appellant.
</parties><br><court id="b272-10">
Court of Appeals of Tennessee, Western Section, at Jackson.
</court><br><decisiondate id="b272-11">
July 15, 1999.
</decisiondate><br><attorneys id="b273-20">
<span citation-index="1" class="star-pagination" label="251">
*251
</span>
Jeffrey Butler, Jackson, TN, pro se.
</attorneys><br><attorneys id="b274-3">
<span citation-index="1" class="star-pagination" label="252">
*252
</span>
C. Mark Donahoe, Spragins, Barnett, Cobb
<em>
&
</em>
Butler, PLC, Jackson, TN, for Appellee.
</attorneys> | [
"10 S.W.3d 250"
]
| [
{
"author_str": "Highers",
"per_curiam": false,
"type": "010combined",
"page_count": 13,
"download_url": "http://www.tsc.state.tn.us/sites/default/files/OPINIONS/TCA/PDF/993/butlerje.pdf",
"author_id": null,
"opinion_text": " IN THE COURT OF APPEALS OF TENNESSEE\n AT JACKSON\n\n\nCITY OF JACKSON, )\n ) FILED\n Plaintiff/Appellee, ) Madison Circuit No. 97-727\n ) July 15, 1999\nVS. ) Appeal No. 02A01-9812-CV-00381\n ) Cecil Crowson, Jr.\nJEFF BUTLER, ) Appellate Court Clerk\n )\n Defendant/Appellant. )\n\n\n APPEAL FROM THE CIRCUIT COURT OF MADISON COUNTY\n AT JACKSON, TENNESSEE\n THE HONORABLE FRANKLIN MURCHISON, JUDGE\n\n\n\n\nJEFFREY BUTLER, pro se\nJackson, Tennessee\nAttorney for Appellant\n\n\n\nC. MARK DONAHOE\nSPRAGINS, BARNETT, COBB & BUTLER, PLC\nJackson, Tennessee\nAttorney for Appellee\n\n\n\n\nAFFIRMED IN PART, REVERSED IN PART\nAND REMANDED\n\n\n\n\n ALAN E. HIGHERS, J.\n\n\n\nCONCUR:\n\nDAVID R. FARMER, J.\n\nHOLLY KIRBY LILLARD, J.\n Jeffrey Butler (“Butler” or “Appellant”) appeals from the trial court’s order finding that\n\fButler was in violation of the health and sanitation code of the City of Jackson (“City” or\n\n“Appellee”).\n\n\n\n I. Factual and Procedural History\n\n\n\n After receiving complaints about the premises at 126 Wilkinson in Jackson,\n\nTennessee, the Health and Sanitation Department of the City of Jackson (“City” or\n\n“Appellee”) instituted an investigation at that address in July of 1997.\n\n\n\n On July 16, 1997, pursuant to Jackson City Code section 13-105, a letter issued\n\nfrom Code Enforcement Officer Rickey Brown to the Appellant, notifying him that he was\n\nin violation of the Official Code of the City of Jackson sections 13-103, 13-104, 13-105,\n\nand 17-105. When Butler failed to take any action, two citations were issued. The first\n\ncitation, issued July 31, 1997, charged Butler with violating City Code 13-202. The second\n\ncitation, issued August 1, 1997, charged Butler with violating City Code sections 13-103,\n\n13-104, 13-105, and 17-105.\n\n\n\n Code Enforcement Officer Rickey Brown based the citations on his observation of\n\nweeds, vines, stacks of wood, metal parts, automotive parts, motors, automobiles,\n\nscattered papers and debris located in the front and back yards of Butler’s residence.\n\nBrown returned in August of 1997 and on September 15, 1997, and found the property in\n\nthe same condition. Accompanying him on September 15 was the Jackson-Madison\n\nCounty Environmental Program Director and Superintendent of the City of Jackson Health\n\nand Sanitation Department, Brent Lewis. Lewis observed the property in the same\n\ncondition and a videotape and photographs were made at that time and later submitted into\n\nevidence. Officer Jerry West observed the same violations, and additionally junk cars, and\n\ncaused the citations for the cars to issue.\n\n\n\n On August 18, 1997, Butler responded to the summons at the City of Jackson City\n\nCourt. Thereafter a trial ensued, resulting in a judgment against Butler in the amount of\n\n\n 2\n\f$250.00. Butler appealed the matter to circuit court.\n\n\n\n On May 8, 1998, the circuit court conducted a de novo hearing. The trial court found\n\nButler to be in violation of City Code sections 13-103, 13-104, 13-105, 13-202 and 17-105\n\nand imposed a fine of $250.00. The trial court found that there had been some clean up\n\nof the yard since the citations were issued. Accordingly, the trial court ordered the city to\n\nsend Butler a new letter informing him of what must be done to bring the property up to\n\ncode. The trial court further held that Butler would then have fifteen (15) days to comply.\n\nIf Butler did not comply, the City would be allowed to clean up the yard at the expense of\n\nButler. It is from that decision that Butler appeals to this Court.\n\n\n\n II. Warrantless Search\n\n\n\n Butler’s first contention on appeal is that the administrative search of his residence\n\nwas warrantless and in violation of Butler’s Fourth Amendment rights. Butler bases this on\n\ntestimony by Brent Lewis that, in order to view the condition of Butler’s yard, Rickey Brown,\n\nCode Enforcement Officer, and Lewis had to climb onto the back of a truck bed and look\n\nover the fence into the yard. Butler argues that the code officer first should have obtained\n\na search warrant for this administrative search. Butler contends that the warrantless search\n\nrenders all of the evidence upon which the citations were based, fruit of the poisonous tree,\n\nand such evidence should have been suppressed by the trial court.\n\n\n\n The City counters that violations of municipal ordinances are considered a civil and\n\nnot a criminal proceeding. While not explicitly stated by the City, the implication is that the\n\nexclusionary rule does not apply in civil matters.\n\n\n\n It is true that cases involving violation of city ordinances are not criminal\n\nprosecutions. Such cases are civil in nature having as their object the vindication of\n\ndomestic regulations. City of Chattanooga v. Meyers, 787 S.W.2d 921, 922 (Tenn. 1990)\n\n(citing Briggs v. City of Union City, 531 S.W.2d 106, 107 (Tenn. 1975)). Such cases are\n\n\n 3\n\fgoverned by rules in civil cases. Meyers at 922 (citing Metropolitan Government v. Allen,\n\n529 S.W.2d 699, 707 (Tenn. 1975)).\n\n\n\n While it has been held that the exclusionary rule generally does not apply to a civil\n\nproceeding, it is usually held that the rule applies to a civil proceeding which is quasi-\n\ncriminal in nature, or in which the government is seeking to exact a penalty or in some way\n\npunish a person. 31A C.J.S. Evidence §253 (1996). See also Adamson v. C.I.R., 745 F.2d\n\n541 (1984); Vander Linden v. U.S., 502 F. Supp. 693 (1980); McDaniel v. City of Seattle,\n\n828 P.2d 81 (1992); U.S. v. Moddes, Inc., 787 F. Supp. 1466 (1992). Therefore, the\n\nexclusionary rule may be available to suppress illegally obtained evidence in a ordinance\n\nviolation hearing.\n\n\n\n However, we expressly decline to address whether the search violated Butler’s\n\nrights as Butler made no objection to the admissibility of the evidence at the trial court, nor\n\ndid he file any prior motion to suppress the evidence nor a motion in limine to prevent the\n\nevidence from being admitted. While we grant Butler some leeway as a pro se litigant, the\n\njob of the Court of Appeals is to address any errors made at the trial court below. This\n\nissue was neither raised nor considered in the trial court, and cannot be raised for the first\n\ntime on appeal. T.R.A.P. 36; Simpson v. Frontier Community Credit Union, 810 S.W.2d\n\n147 (Tenn. 1991).\n\n\n\n III. Penalty Imposed\n\n\n\n The trial court ordered Butler to pay a fine of $250.00 for the violations of the city\n\nordinances. Additionally, the trial court ordered Butler to bring his residence into\n\ncompliance with the Code, with the condition that if he was not in compliance within fifteen\n\n(15) days, the City would clean up the yard at Butler’s expense, plus a twenty-five percent\n\nsurcharge as authorized by section 13-105. The trial court issued the fine under the\n\ngeneral penalty provision of the Code. The general penalty provision provides in pertinent\n\npart:\n\n\n 4\n\f Section 5. Penalty Clause. Wherever in the municipal code,\n including the codes and ordinances adopted by reference, any\n act is prohibited or is made or declared to be unlawful or an\n offense or a misdemeanor, or wherever in the municipal code\n the doing of any act is required or the failure to do any act is\n declared to be unlawful, the violation of any such provision of\n the municipal code shall be punishable by a penalty of not\n more that five hundred dollars ($500.00), where no specific\n penalty is otherwise provided, and costs for each separate\n violation . . .\n\n\n The general penalty provision can be applied when the Code has been violated and\n\nno specific penalty is provided. Butler argues that section 13-105 sets forth a specific\n\npenalty and therefore it was error for the court to use the general penalty provision to\n\nimpose a fine of $250.00. We do not agree.\n\n\n\n City Code section 13-105 contains the “clean up” provision available to the City. This\n\nsection authorizes the City to enter onto the premises of an offender and remove any\n\naccumulation of garbage, trash and rubbish, and cut all weeds if the offender does not\n\nclean up the premises within five (5) days of notice of the violation. The Code section\n\nstates that the person in charge of the premises will be charged the actual cost of such\n\nremoval plus a charge of twenty-five (25) percent. The Code also provides that such\n\nproperty shall be subject to a lien in favor of the City until all such charges are paid.\n\n\n\n We do not believe that this is the type of “specific penalty” envisioned by the\n\ndrafters which would preclude the application of the general penalty provision. Code\n\nsection 13-105 is not designed to be a penalty, but rather allows the City to protect the\n\nhealth, safety, and welfare of its citizens by bringing property in compliance with the code\n\nwhen the offending party refuses to comply. The offending party is charged actual cost of\n\nremoval to reimburse the City for the expense. While not stated in the Code, the twenty-\n\nfive (25) percent addition to the charge may cover administrative expenses and/or may\n\nserve to deter property owners from using the City as their personal cleaning service.\n\n\n\n Accordingly, we find that City Code section 13-105 is not a “specific penalty” for the\n\npurposes of the general penalty provision and that the trial court did not err in fining Butler\n\n\n\n 5\n\funder the general penalty provision in addition to allowing clean up by the City in the event\n\nButler fails to comply with the Code.\n\n\n\n IV. Specific Code Violations\n\n\n\n The trial court found that Butler violated City Code sections 13-103, 13-104, 13-\n\n105, 13-202, and 17-105. Butler raises several issues concerning these various code\n\nsections including allegations that the City did not meet its burden of proof as to each\n\nCode violation. We shall therefore address each of these sections in turn.\n\n\n\nA. City Code section 13-103.\n\n City Code section 13-103 makes it unlawful for any person to allow weeds or\n\ngrass to grow to a height in excess of six (6) inches on property owned by or under the\n\ncontrol of such person. Butler argues that the City violated the procedural rules set forth\n\nin section 13-105 and that Butler’s due process rights were violated.1\n\n\n\n City Code section 13-105 directs that whenever a person violates the provisions\n\nof sections 13-102, 13-103, or 13-107, the recorder shall mail to the person having\n\ncontrol over the offending premises notice of the violation. The Code then sets forth the\n\nlanguage that is to be included in the notice. In short, the notice informs the person that\n\nthe premises have been found to be in an unsanitary, unhealthy and unclean condition,\n\nand directs the person to clean up the premises within the next five (5) days. The notice\n\nalso informs the offending party that if he or she fails to act upon such directive, the City\n\nwill enter onto the property and remove such garbage, etc, and charge the offending\n\nparty the actual cost plus twenty-five (25) percent.\n\n\n\n In contrast, the notice sent to Butler listed the specific code violations and stated\n\n\n\n 1\n Butler asserts that the City violated the procedural rules of section 13-105 and that said failure\n“constitutes an alteration of Municipal Code Section Titles 13 and 17 so as to deprive Appellant of substantive\nrights of notice and due process.” However, section 13-105 only applies when a person violates the provisions\nof sections 13-102, 13-103, or 13-107. Of these sections, Butler was only charged with a violation of section\n13-103 . There fore, we a ddress this due p rocess argum ent only as it rela tes to sec tion 13-10 3.\n\n 6\n\fas follows:\n\n The condition of property under your control violates “The\n Official Code of the City of Jackson, Tennessee”. Property and\n code violations are listed above.\n\n Please consider this letter as legal notification to comply with\n applicable codes within five (5) working days. Failure to comply\n will force the City to pursue the legal remedies identified in the\n City Code.\n\n I thank you in advance for your cooperation in this matter.\n\nButler argues that the City’s failure to send the notice required by section 13-105\n\nviolated his due process rights. We do not find that the City’s failure to send the notice\n\nrequired under section 13-105 violated Butler’s due process rights under the\n\ncircumstances of this case.\n\n\n\n The notice sent by the City to Butler was sufficient to place Butler on notice that\n\nhe was in violation of the City Code. When Butler failed to comply with said Code\n\nprovisions, the City issued a citation and Butler was afforded a hearing before any\n\npunitive measures were imposed. However, if Butler failed to comply with the notice\n\nwhich was sent, and the City chose instead to enter onto the property five days later\n\nand perform the clean up, this holding might have been different. Before the City may\n\navail itself of the clean up remedy found in section 13-105, it should issue the notice\n\nmandated by that section to ensure the offending party is fully informed of the City’s\n\nclean up procedure and the charges and consequences to the offending party of non-\n\ncompliance.\n\n\n\n Butler also asserts that the City did not meet its burden of proof as to this Code\n\nsection as it did not prove that the property was “under the control” of Butler, as required\n\nby section 13-103. Upon a careful reading of the transcript, we find that the City did prove\n\nthat the property was under Butler’s control. Butler testified that he had the ability to say\n\nwho comes and goes. When questioning Butler about a videotape which was played for\n\nthe court, counsel for the City stated to Butler, “It’s the yard where you live and you have\n\ncontrol of the property, right? Butler responded, “That’s kind of obvious, isn’t it?” Taking\n\ninto account that Butler was rather uncooperative in answering questions posed by counsel\n\n\n 7\n\ffor the City, we find the testimony of Butler sufficient to show he was in control of the\n\nproperty at issue.\n\n\n\n For all of the above noted reasons, we hold that the trial court did not err in finding\n\nButler to be in violation of City Code section 13-103.\n\n\n\nB. City Code section 13-104\n\n City Code section 13-104 makes it unlawful for any owner of record of real property\n\nto create, maintain, or permit to be maintained on such property the growth of trees, vines,\n\ngrass, underbrush and/or the accumulation of debris, trash, litter, or garbage. In contrast\n\nto section 13-103 which applies to the property owner or the person in control of the\n\nproperty, section 13-104 applies only to the owner of record of the real property.\n\n\n\n At trial, Butler testified that he resides at 126 Wilkinson but it is not his property. The\n\nCity introduced no evidence that the Butler is the owner of record of this property, and\n\nmade reference to the fact that his Wife is the owner of the property. Accordingly, as a\n\nmatter of law, Butler could not violate section 13-104. We hold that the trial court erred in\n\nfinding Butler in violation of City Code section 13-104.\n\n\n\nC. City Code section 13-105\n\n The trial court found Butler guilty of violating section 13-105. As mentioned\n\nhereinabove, section 13-105 is a remedial section which directs the City to send notice to\n\nthe offending party, authorizes the City to make removal upon failure to comply with notice,\n\nand authorizes the city to place a lien on the property until all such charges are paid.\n\nAlthough this is the only section that speaks to the clean up of the premises, the Code\n\nsection is not worded to make a failure to clean up a separately chargeable offense.\n\nRather, it provides the remedy available to the City if the offending party refuses to clean\n\nup the premises.\n\n\n\n The other Code sections found in Title 13 which Butler was charged with violating\n\n\n\n 8\n\fbegin with the language “It shall be unlawful for . . .” In contrast, section 13-105 (1) begins,\n\n“Whenever a person violates the provisions of sections 13-102, 13-103, or 13-107, the\n\nrecorder shall mail . . .” Subsection (2) begins “On failure to comply with the notice as set\n\nout above . . .the city shall . . .” Subsection (3) begins, “Until all such charges prescribed\n\nby this section are paid . . .” Finally, subsection (4) begins, “The remedy contained in this\n\nsection shall not be the exclusive remedy . . .” We find that such language sets forth the\n\nremedy available to the city upon a violation of the code.\n\n\n\n We believe City Code section 13-105 was enacted to authorize the City to enter\n\nonto such premises and bring them in compliance with the Code to ensure the health and\n\nsafety of the community. Without such a statute, the City could fine the offending party, but\n\nwould not be able to remedy the situation if the offending party refused to comply, thereby\n\njeopardizing the health and safety of the community. City Code section 13-105 does not\n\ncreate a separately chargeable offense. Accordingly, we find that the trial court erred in\n\nfinding Butler in violation of City Code section 13-105.\n\n\n\nD. City Code section 13-202\n\n Butler was charged with violation of City Code section 13-202 in a separate citation.\n\nThe trial court found Butler to be in violation of this Code section. City Code section 13-202\n\nmakes it unlawful to park, store, or leave, or to permit the parking or storing of any licensed\n\nor unlicensed motor vehicle of any kind, for a period in excess of ten (10) days, when such\n\nvehicle is in a state of disrepair and incapable of moving under its own power upon any\n\nprivate property within the city, unless the same is completely enclosed within a building\n\nor unless it is in connection with a business enterprise operated in a lawful place and\n\nmanner.\n\n\n\n Butler argues that the citation issued by Officer Jerry West is on its face invalid since\n\nthe City’s cause of action could not have matured on the date of the citation, July 31, 1997.\n\nButler contends that Officer West first investigated the matter on July 31, 1997. As\n\nsection13-202 refers to vehicles which have been parked, stored or left in excess of ten\n\n\n\n 9\n\fdays, the earliest possible date on which Officer West could have had the requisite\n\nknowledge of the violation was August 10, 1997.\n\n\n\n City Code section 13-204 states that there should be reasonable grounds to believe\n\nthat a violation of the chapter exists. It appears that reasonable grounds existed on July\n\n31, 1997 for Officer West to believe Butler was in violation of section 13-202. Officer West\n\ntestified that he investigated Butler’s yard due to a vehicle complaint. He took photographs\n\nof eight vehicles parked in Butler’s yard. He testified that when he observed the vehicles\n\nthey appeared to have been sitting there a long time with trash piled on them. Officer West\n\ntestified that in his opinion the vehicles were not in a state that would allow them to be\n\nfunctional and they were covered up with debris. Officer West also noted on the citation\n\nthat he tried to contact Butler on different dates at least six times with no results in\n\nreference to the vehicles.\n\n\n\n Once there are reasonable grounds to believe that a violation of the junked vehicles\n\nchapter of the Code exists, section 13-204 directs the chief of police to give, or cause to\n\nbe given, written notice to the offending party that the motor vehicle violates the provisions\n\nof said chapter. The notice shall demand that the motor vehicle be removed to a place of\n\nlawful storage within ten (10) days and that failure to remove said vehicle and abate the\n\nnuisance shall constitute a violation of the provisions of the chapter. Officer West sent\n\nButler such notice on August 1, 1997.\n\n\n\n It appears to this Court that Officer West should have waited until August 10, 1997\n\nto issue the citation. However, since Butler was afforded a hearing on the violation, it is not\n\nthe date of issuance of the citation upon which this case turns, but rather the finding by the\n\ncourt that Butler was in violation of section 13-202. Had Butler complied with the notice and\n\nremoved the vehicles within ten days of receiving notice, prior to his first court hearing,\n\nButler could not have been found to be in violation of section 13-202 since it allows the\n\noffending party ten (10) days to abate said nuisance.\n\n\n\n\n 10\n\f Butler contends that the aim of the Code provisions on junked vehicles is the\n\nplacement of such vehicles in a manner so that they are not visible from the street. Butler\n\ncites section 13-203 for this proposition. City Code section 13-203 deals with the removal\n\nof the offending vehicle and states that the vehicle shall be removed to a place of lawful\n\nstorage or housed within a building where it will not be visible from the street. Butler argues\n\nthat since his vehicles were located within a fenced area, not visible from the street, such\n\nvehicles fall outside the intent of the ordinance.\n\n\n\n Although section 13-203 contains language speaking to visibility from the street, we\n\ncannot ignore the language “housed within a building” found in section 13-203 and\n\n“completely enclosed within a building” found in section 13-202. City Code section 13-201\n\nsets forth the purpose of the code section:\n\n 13-201. Declaration of Purpose. The Council finds and\n declares that the accumulation and storage of motor vehicles\n in a state of disrepair and incapable of moving under their own\n power are in the nature of rubbish and unsightly debris, and\n constitute a nuisance detrimental to the health, safety, and\n welfare of the community in that such conditions tend to\n interfere with the enjoyment of and reduce the value of private\n property; create safety and health hazards to minors as well as\n adults, interfere with the comfort and well being of the public\n and create, extend, and aggravate urban blight, and that the\n public health, safety, and general welfare require that such\n conditions be regulated, abated, and prohibited.\n\nWhile storage of said vehicles in a fenced in yard may address some of the aesthetic goals\n\nof this section, it does not address the health and safety concerns. The Code states that\n\nsaid vehicles shall be completely enclosed within a building. This Court finds that Butler’s\n\nstorage of said vehicles in a fenced in yard was in violation of the Code.\n\n\n\n For all of the above stated reasons, the trial court did not err in finding Butler in\n\nviolation of City Code section 13-202.\n\n\n\nE. City Code section 17-105\n\n The final code provision which Butler was found to have violated is City Code\n\nsection 17-105. This code section directs that all garbage and refuse be removed from\n\nprivate residences twice each week or as often as is deemed necessary by the director.\n\n 11\n\fSection 17-105(4) further directs that quantities of garbage and refuse materials resulting\n\nfrom the repair, excavation, construction or destruction of buildings shall be removed and\n\ndisposed of by the contractor, owner or person having same in charge by a method\n\nsatisfactory to the director of health and sanitation. Butler was charged with a violation of\n\nthis Code section for having a large pile of lumber, old building materials and debris in his\n\nyard.\n\n\n\n Other than the general arguments addressed earlier in this opinion, Butler raised no\n\nspecific issues on appeal relating to this Code violation. We find that the evidence supports\n\nthe trial court’s finding that Butler was in violation of City Code section 17-105.\n\n\n\n In summary, we find that the trial court did not err in finding Butler in violation of City\n\nCode sections 13-103, 13-202, and 17-105. However, the trial court erred in finding Butler\n\nin violation of City Code sections 13-104 and 13-105. Under the general penalty provision,\n\nthe trial court may impose a fine of no more than five hundred dollars ($500.00) for each\n\nviolation. While the fine of $250.00, imposed by the trial court for the five code violations,\n\nis still within the allowable range, this Court cannot know if the trial court would have\n\nimposed the same fine for three code violations. Therefore, we shall remand this case back\n\nto the trial court for a new determination. The portion of the trial court’s order instructing\n\nButler to comply with the City Code within fifteen (15) days shall stand unaffected.\n\n\n\n V. Conclusion\n\n\n\n The judgment of the trial court is hereby affirmed in part, reversed in part, and\n\nremanded for determination of fine. Costs of this appeal are taxed one-half to Appellant\n\nand one-half to Appellee, for which execution may issue if necessary.\n\n\n\n\n HIGHERS, J.\n\n\n\n\n 12\n\fCONCUR:\n\n\n\n\nFARMER, J.\n\n\n\n\nLILLARD, J.\n\n\n\n\n 13\n\f",
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| Court of Appeals of Tennessee | Court of Appeals of Tennessee | SA | Tennessee, TN |
835,785 | Per Curiam | 2005-03-03 | false | in-re-complaint-as-to-the-conduct-of-phillips | In re Phillips | In Re Complaint as to the Conduct of Phillips | In Re Complaint as to the Conduct of NORMAN A. PHILLIPS, Accused | Susan D. Isaacs, Beaverton, argued the cause and filed the briefs for the accused., Mary Cooper, Assistant Disciplinary Counsel, Lake Oswego, argued the cause and filed the brief for the Oregon State Bar. | null | null | null | null | null | null | null | Argued and submitted January 12, 2004, | null | null | 0 | Published | null | <otherdate id="b159-2">
Argued and submitted January 12, 2004,
</otherdate><decisiondate id="Asj">
accused suspended from the practice of law for 36 months, effective 60 days from the date of the filing of this decision March 3, 2005
</decisiondate><br><parties id="b159-4">
In re Complaint as to the Conduct of NORMAN A. PHILLIPS,
<em>
Accused.
</em>
</parties><br><docketnumber id="b159-7">
(OSB 97-166, 97-167, 98-155; SC S49838)
</docketnumber><br><citation id="b159-8">
107 P3d 615
</citation><br><attorneys id="b160-12">
<span citation-index="1" class="star-pagination" label="126">
*126
</span>
Susan D. Isaacs, Beaverton, argued the cause and filed the briefs for the accused.
</attorneys><br><attorneys id="b160-13">
Mary Cooper, Assistant Disciplinary Counsel, Lake Oswego, argued the cause and filed the brief for the Oregon State Bar.
</attorneys><br><judges id="b160-14">
PER CURIAM
</judges> | [
"338 Or. 125",
"107 P.3d 615"
]
| [
{
"author_str": "Per Curiam",
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": "http://www.publications.ojd.state.or.us/docs/S49838.htm",
"author_id": null,
"opinion_text": " \n \nFILED: March 3, 2005 \n \n \nIN THE SUPREME COURT OF THE STATE OF OREGON \n \nIn re Complaint as to the Conduct of \n \n \nNORMAN A. PHILLIPS, \n \n \nAccused. \n \n \n(OSB 97-166, 97-167, 98-155; SC S49838) \n \n \nEn Banc \n \n \nOn review of the decision of a trial panel of the \nDisciplinary Board. \n \n \nArgued and submitted January 12, 2004. \n \n \nSusan D. Isaacs, Beaverton, argued the cause and filed the \nbriefs for the accused. \n \n \nMary Cooper, Assistant Disciplinary Counsel, Lake Oswego, \nargued the cause and filed the brief for the Oregon State Bar. \n \n \nPER CURIAM \n \n \nThe accused is suspended from the practice of law for 36 \nmonths, effective 60 days from the date of the filing of this \ndecision. \n \n \n \nPER CURIAM \n \nIn this disciplinary proceeding, the Oregon State Bar \nalleged that the accused violated the Code of Professional \nResponsibility (1) through the conduct of another in violation \nof Disciplinary Rule (DR) 1-102(A)(1), made misrepresentations in \nviolation of DR 1-102(A)(3), disclosed his clients's confidences \nor secrets in violation of DR 4-101(B)(1), used his clients' \nconfidences or secrets for his own or another person's advantage \nin violation of DR 4-101(B)(3), aided nonlawyers in the practice \nof law in violation of DR 3-101(A), and continued to represent \nhis clients without disclosing a conflict of interest in \nviolation of former DR 5-101(A)(1996), renumbered as DR 5-101(A)(1) (1997). The trial panel found that the accused had not \naided a nonlawyer in the practice of law but that he had violated \nthe other disciplinary rules. The trial panel imposed a 24-month \nsuspension. On de novo review, we find that the accused violated \nthree of the six rules and suspend him from the practice of law \nfor 36 months. \n \nThe accused has been a member of the Bar since 1968. In \n1996, he and Cornilles were law partners. The partnership had \nbetween 1,500 and 2,000 clients and operated under the name of \nthe Living Trust Law Center (the law firm). Together, the \naccused and Cornilles prepared living trusts for most of their \nclients. Their average client was over 60 years of age and had a \nnet worth in excess of $300,000. \n \nIn February 1996, Wessels of Financial Services Network \n(FSN) contacted the law firm and proposed that the firm enter \ninto a joint venture with FSN. The law firm had agreed to \nprovide its clients with free periodic reviews of their living \ntrusts, and FSN proposed that its licensed insurance agents could \nconduct those reviews under the accused and Cornilles' \nsupervision. The insurance agents would meet with the law firm's \nclients in their homes, review their trusts, and also review the \nclients' financial information to ensure that the clients had \nfunded their trusts properly. \n \nIf the insurance agent determined that the trust should be \nupdated, he or she would note that fact on a form and submit it \nto the law firm. Additionally, the agent would try to sell the \naccused's clients insurance products if the agent determined that \nthe client needed either to replace an existing investment or \npurchase a new one. The agents' only compensation would come \nfrom the commissions on the insurance sales that they made. A \nthird of the total commission would go to the agents, a third to \nFSN, and a third to the accused and Cornilles. \n \nIn late March or early April 1996, the accused and Cornilles \ntelephoned Moore, a lawyer who specializes in legal ethics, to \ndiscuss FSN's proposal. In particular, they were concerned that \nsharing commissions and disclosing client information might \nviolate the Code of Professional Responsibility. The accused and \nCornilles spoke with Moore for approximately 15 minutes. Their \nconversation did not cover the specific terms of the joint \nventure but ranged generally over the question whether they could \nconduct the type of trust review program that FSN had proposed \nwithout violating their ethical duties as lawyers. Moore opined \nthat they could. \n \nThe law firm entered a joint venture agreement with FSN and \nJ.L. Kizer and Associates, Inc. On April 19, 1996, the accused \nand Cornilles sent a letter to 100 of their clients. (2) \nWritten on the firm letterhead, the letter told each client that \n\"[i]t is time to review your Living Trust and to make sure that \nyour trust is properly funded.\" The letter noted that the \nclients may need to update their power of attorney, change the \nsuccessor trustee, or modify the beneficiaries. The letter told \nthe firm's clients that \n \n \n\"we have carefully selected and trained three \nindividuals: Alan Darby, Lori Guimond, and Mike Oxford \nto visit with you in your home. Beginning the week of \nApril 29th and May 6th, they will be visiting with \nclients.\" \n \n \n(Emphasis in original.) \n \nThe letter also noted that the firm had received many \nrequests for assistance with financial planning. It explained \nthat, \n \n \n\"[i]f you are interested in saving money on either \nincome or estate taxes, increasing your monthly income, \nor protecting yourself against inflation, our \nrepresentatives can provide you with valuable \ninformation and services.\" \n \n \nImmediately after that paragraph, the letter stated that \"[t]here \nwill be no charge for the trust review unless you need to make \nchanges in your [legal] documents or execute new [legal] \ndocuments.\" \n \nThe accused and Cornilles knew from the beginning that \nthe insurance agents' primary purpose was to sell their clients \nlife insurance products. The joint venture agreement identified \nthe sale of insurance products as the joint venture's sole \npurpose, (3) and a letter from J.L. Kizer and Associates had \nidentified April 29 to May 10 -- the same period that the accused \nhad told his clients the law firm's representatives would be \nvisiting with them in their homes -- as \"[o]ur initial Sales \nThrust Target.\" Despite that knowledge, the accused and \nCornilles did not disclose in the April 19 letter that most of \nthe firm representatives were out-of-state insurance agents, all \nwere affiliated with FSN, and all were compensated solely by the \ncommissions that they generated from the sale of insurance \nproducts. (4) Finally, the letter did not say that the accused \nor Cornilles would share in any commissions that the insurance \nagents generated. \n \nAfter sending the letters, the law firm made follow-up \ncalls to set up the trust reviews with the clients. (5) The \naccused and Cornilles instructed the insurance agents that, on \narriving at a client's home, they should present two business \ncards. The first card contained the law firm's name, the agent's \nname, and the law firm's address. The second card identified the \nreviewer as an insurance agent affiliated with FSN. The accused \nand Cornilles also told the agents that they should remind the \nclients that they were not lawyers before they began the review. \n \nDuring the trust review, the agents would examine the \nclient's trust documents as well as the client's financial \ndocuments. If the agent determined that the client needed to \nreplace existing investments or purchase new ones, the agent \nwould attempt to sell insurance products (typically either fixed \nannuities or life insurance) to the client. The accused and \nCornilles instructed the agents that, if the client decided to \npurchase insurance products, the agents should disclose at the \npoint of sale that the agent and the lawyers would receive a \ncommission on the sale. \n \nAs the agents made their home visits, FSN provided the \nlaw firm with daily sales reports. The daily sales reports \nlisted the client's name, whether the agent had made a sale, the \ninsurance product that the client had purchased, and the premium. \nThe daily sales reports also contained a space for the agents' \ncomments. Some comments asked either the accused or Cornilles to \ncontact the client and reaffirm the wisdom of the client's \npurchase. On one report, the agent noted that the client had \npurchased an insurance product that generated a $19,000 premium. \nThe agent then noted, \"Attorney should comment on the very wise \ndecision the client made in getting out of the stock market.\" \nAnother report lists a $96,000 premium and states, in the comment \nsection, \"Have [Cornilles] comment on how American National is a \nvery strong company and [how the client will] be better off with \nthe higher interest rates.\" \n \nOn May 3, 1996, after the insurance agents had begun \nconducting the in-home trust reviews, the accused and Cornilles \nasked Moore for a written opinion on the ethics of their joint \nventure. Although they supplied Moore with additional \ninformation, significant gaps remained. Moore understood that \nthe agents would sell insurance products only infrequently. \nGiven that understanding, Moore told the accused and Cornilles \nthat he did not think that they needed to disclose, in the \ninitial letter to clients, that they would receive a portion of \nany sales commission. (6) After the joint venture began, the \naccused and Cornilles revised the introductory letter. The \nrevised letter stated that, \"If you [the client] purchase any \ninvestment or other products, we may receive compensation from \nthe issuing company.\" (7) The accused and Cornilles sent the \nrevised letter to approximately 1,500 clients over approximately \na four-month period. \n \nThroughout the joint venture, the accused and Cornilles \nmaintained contact with Moore. On May 28, 1996, Moore sent a \ndraft opinion letter to them noting possible problems with the \njoint venture under DR 3-101(A) (prohibiting aiding nonlawyers in \nunlawful practice of law), DR 3-103(A) (prohibiting nonlawyer \npartnership if practice of law is involved), DR 3-102(A) \n(prohibiting sharing legal fees with nonlawyers), and DR 2-103(A) \n(prohibiting acceptance of referral fees). Moore, however, \nresolved those issues in favor of the trust review program. In a \nJuly 19, 1996, letter to the accused, Moore concluded that the \ndisclosure statement in the revised introductory letter was \nadequate. \n \nThe trust reviews began on April 29, 1996, and ended in \nthe first part of November 1996. During that roughly six-month \nperiod, the accused, Cornilles, and FSN sent approximately 1,700 \nletters to the law firm's clients and made approximately 1,143 \nfollow-up telephone calls. The insurance agents examined \napproximately 663 living trusts and sold annuities or life \ninsurance policies to approximately 160 clients. (8) During \nthat six-month period, the agents generated approximately \n$810,000 in commissions from the sale of insurance products to \nthe accused's clients. The law firm received a third of that \namount or approximately $270,000. \n \nThe venture was so successful that the law firm, \nprimarily working through Cornilles, helped FSN develop and \nmarket a trust review program for other lawyers. (9) The law \nfirm developed an 11-item checklist for other lawyers to use to \noperate a trust review program. The ninth item on the checklist \ntold lawyers that, \"[o]n rare occasions, particularly when a \nlarge sale is involved, it may be advisable for you to personally \nvisit with the client * * * to confirm the credibility of the \nagent and reaffirm the advisability of the sale.\" The eleventh \nitem on the checklist told lawyers who implemented a trust review \nprogram to \"[s]it back and wait for the checks to roll in.\" \n \nSome of the firm's clients were dissatisfied with the \ninsurance agents' actions. Eight clients testified. All were \nelderly. Some of them or their spouses were in ill health when \nthe agents visited them. Those clients testified that, when the \ninsurance agents visited their homes, the agents gave them only \nthe first business card -- the card naming the agent and showing \nthat he or she was the law firm's representative. The agents did \nnot give the clients the second business card, which identified \nthem as insurance agents affiliated with FSN. Some of the \nclients assumed that the agents were law firm employees and that \nthe firm was paying them. They did not realize that either the \nagents or the lawyers would receive a commission on the insurance \nproducts that the agents were selling. \n \nThe clients testified that, once the insurance agents \ngot inside the house, the agents reviewed the trust (sometimes \nbriefly). They then turned to the clients' assets and the sale \nof insurance products. One woman in her early eighties said \nthat, when she refused to sign the application for an annuity, \nthe insurance agent became angry with her. She agreed initially \nto buy a $10,000 annuity because that was all that she and her \nhusband could afford. She explained, however, that, by the time \nthe insurance agent left their home, \"he had every bit of our \nmoney [approximately $80,000] that was in the bank.\" She was \nable to recover their money only after she reported the agent's \nactions to a government official. \n \nAnother couple had a similar experience. The wife was \nin her mid-seventies and her husband had problems breathing. The \nwife explained that her husband was \"so worn down\" by the \ninsurance agent that they finally agreed to go to the bank, \nliquidate their savings, and buy an annuity. Because it was late \nin the day, they suggested going to the bank the next morning. \nThe insurance agent, however, insisted that they liquidate their \nsavings that day and drove them to the bank. When the bank \nemployee asked the couple about their decision, the insurance \nagent interrupted and answered for the couple. The couple went \nthrough with the transaction but realized, immediately after the \nagent left, that they had made a mistake. They tried \nunsuccessfully to get in contact with him. After several \nattempts over the next few days, they finally were able to \nrescind the transaction. \n \nA third couple liquidated a $500,000 IRA so that they \ncould buy a fixed annuity. After approximately a year, they \nbecame dissatisfied with the annuity and called the issuing \ncompany to ask about cancelling it. Shortly afterwards, Guimond, \nthe president of FSN, called to talk them out of cancelling the \nannuity. During that conversation, the couple realized that the \nperson who had visited with them in their home and who they had \nthought was an employee of the law firm in fact had been an \ninsurance agent affiliated with FSN. \n \nThe couple scheduled a meeting with the accused to \ndiscuss their concerns. Shortly afterwards, Guimond called the \ncouple and said that she wanted to sit in on their meeting with \nthe accused. The couple explained that they wanted to speak with \nthe accused privately. Guimond, however, was at the law firm \nwhen the couple arrived for their meeting. The accused persuaded \nthe couple to let Guimond participate. During the meeting, \nGuimond argued that the couple should keep the annuity. Her \nefforts proved unsuccessful, and the couple decided that it was \nbetter to incur approximately $45,000 in surrender charges than \nkeep the annuity. \n \nAs noted, the trial panel found that the accused and \nCornilles had violated the Code of Professional Responsibility \nthrough the acts of another, DR 1-102(A)(1), made \nmisrepresentations, DR 1-102(A)(3), disclosed their clients' \nsecrets or confidences and used them for their or another's \nbenefit, DR 4-101(B)(1) and (3), and had a conflict of interest, \nformer DR 5-101(A) (1996). The trial panel found, however, that \nthe accused and Cornilles had not aided a nonlawyer in the \nunlawful practice of law, DR 3-101(A). The trial panel decided \nto suspend the accused from the practice of law for 24 months and \nto suspend Cornilles for 30 months. After the trial panel issued \nits decision, Cornilles submitted a Form B resignation, and only \nthe charges against the accused remain on review. \n \nOn review, the parties do not challenge two of the \ntrial panel's findings. The Bar does not challenge the trial \npanel's finding that accused did not aid the insurance agents in \nthe unlawful practice of law in violation of DR 3-101(A). The \naccused, for his part, concedes that the trial panel correctly \nfound that he had a conflict of interest in violation of former \nDR 5-101(A) (1996). Two issues remain on review. The first is \nwhether the accused made misrepresentations. The second is \nwhether he disclosed or used his clients' confidences or secrets. \n \nOn the first issue, the trial panel found that the \naccused made five misrepresentations in violation of DR 1-102(A)(3): \n \n \n\"1. The Accused misled [his] clients by having \ntrust reviewers present [law firm] business cards \nwithout clearly disclosing that the reviewers were also \ninsurance salespersons and agents of [FSN]. \n \n \n \n\"2. The Accused failed to fully disclose the \npurpose of the trust reviewer's contact with the \nclients. \n \n \n \n\"3. The Accused failed to disclose to [his] \nclients the affiliation of the Accused with [FSN]. \n \n \n \n\"4. The Accused, through [his] agents who \nconducted trust reviews, participated in a scheme that \ncollected a client's financial information for one \npurpose (to conduct a trust review) without fully \ndisclosing that the Accused would, in addition, use \nthat same information for an entirely different purpose \n(in an attempt to sell insurance products). \n \n \n \n\"5. The Accused failed to disclose to some \nclients and failed to make timely (pre-purchase) \ndisclosure to other clients of the financial interest \nof the Accused in the clients' purchase of insurance \nproducts.\" (10) \n \n \nDR 1-102(A)(3) provides that \"[i]t is professional \nmisconduct for a lawyer to * * * [e]ngage in conduct involving \n* * * misrepresentation.\" To establish that the accused made a \nmisrepresentation, the Bar must prove by clear and convincing \nevidence that the misrepresentation was \"knowing, false, and \nmaterial in the sense that the misrepresentatio[n] would or could \nsignificantly influence the hearer's decision-making process.\" \nIn re Eadie, 333 Or 42, 53, 36 P3d 468 (2001). A lawyer makes a \nmisrepresentation \"either when the lawyer makes an affirmative \nfalse statement or when the lawyer remains silent despite having \na duty to speak.\" In re Lawrence, 337 Or 450, 464, 98 P3d 366 \n(2004). \n \nWith that background in mind, we turn to the trial \npanel's findings. The trial panel found initially that the \naccused violated DR 1-102(A)(3) because the insurance agents \npresented only one of two business cards when they met the \naccused's clients; that is, the agents gave the accused's clients \na card stating that they were from the accused's law firm but did \nnot give them a second card stating that they were insurance \nagents affiliated with FSN. The accused argues that, even if \ninsurance agents misrepresented their status by not presenting \nboth cards, it does not follow that he violated DR 1-102(A)(3). \nThe accused contends that he may be held accountable for the \ninsurance agents' failure to disclose their true status only if \nhe knew of the misrepresentation. \n \nDR 1-102(A)(1) defines when, as a general rule, a \nlawyer is responsible under the Code of Professional \nResponsibility for another person's acts or omissions. It \nprovides that it is \"professional misconduct for a lawyer to * * \n* [v]iolate these disciplinary rules, knowingly assist or induce \nanother to do so, or do so through the acts of another.\" DR 1-102(A)(1). Under the terms of that rule, the accused is \nresponsible for the insurance agents' misrepresentations only if \nhe knowingly assists or induces them to make misrepresentations \nor knows that they are doing so. See In re Ositis, 333 Or 366, \n373-74, 40 P3d 500 (2002) (holding lawyer responsible under DR 1-102(A)(1) for another person's misrepresentation when lawyer \n\"understood [other person's] intentions and attached his own set \nof directions to the task\"). (11) \n \nHere, the record shows that the accused told the \ninsurance agents to present both cards when they visited the \nclients in their homes. Although eight persons testified that \nagents presented only the first card to them, none of those \nwitnesses testified that they reported that omission to the \naccused or his law firm. (12) The accused may have been \nnegligent in implementing a system that permitted the insurance \nagents to present only one of two business cards to his clients. \nHe also may have been negligent in supervising the agents' \nactions, but the Bar failed to prove by clear and convincing \nevidence that the accused knew that the insurance agents were \nmisrepresenting their status by presenting only one of the two \nbusiness cards. \n \nThe remaining four allegations concern, in one form or \nanother, the accused's failure to disclose the nature and purpose \nof the insurance agents' home visits. We begin with the trial \npanel's last finding because it puts the other three findings in \ncontext. The trial panel found that the accused failed to \ndisclose, in a timely fashion, that he and his law partner had a \nfinancial interest in the agents' sale of any insurance products. \n \nAs the accused does not dispute, he had a duty to \ndisclose that potential conflict of interest before his clients \nmet with the insurance agents. See former DR 5-105(A) (1996) \n(prohibiting continued employment when lawyer's financial \ninterest in transaction could affect lawyer's professional \njudgment unless lawyer obtains client's consent after full \ndisclosure). There is also no dispute that the first 200 letters \nthat the accused sent to his clients did not satisfy that duty. \nThose letters failed to mention either the accused's or his \npartner's financial interest in any insurance sales. (13) \n \nThat omission left the false impression that the \naccused was acting solely in his clients' interests in providing \nfor trust reviews. If the accused's clients had known of his \nfinancial interest in the matter, they might not have agreed to \nthe trust reviews that the accused recommended. The omission of \nany mention in the introductory letter of the accused's financial \ninterest in any sale of insurance products was material, knowing, \nand a misrepresentation. \n \nFor similar reasons, we agree that the accused's \nfailure to disclose, in the introductory letter to his clients, \nthat the persons coming to the clients' homes were insurance \nagents (the trial panel's second finding), that the insurance \nagents were associated with FSN (the trial panel's third \nfinding), and that the insurance agents would use the information \nthey gained in reviewing the clients' trust to attempt to sell \nthem insurance products (the trial panel's fourth finding) were \nalso misrepresentations. The omission of that information left a \nfalse impression and was material. As the accused acknowledged, \nif his clients had known the agents' status and role, they might \nnot have agreed to meet with them or disclose their financial \ninformation to them. Finally, the omission was knowing. In sum, \nthe introductory letter that the accused sent to his clients \ncontained four misrepresentations. \n \nIn support of its second cause of complaint, the Bar \nproved that the accused disclosed his clients' names, addresses, \nand the fact that they had a living trust to the insurance agents \nso that they could review the clients' trusts and sell them \ninsurance products. The Bar contends that that disclosure \nviolated two subsections of DR 4-101(B), which provides, in part: \n \n \n\"Except when permitted under DR 4-101(C), a lawyer \nshall not knowingly: \n \n \n \n\"(1) Reveal a confidence or secret of the lawyer's \nclient. \n \n \n\"* * * * * \n \n \n \n\"(3) Use a confidence or secret of the lawyer's \nclient for the advantage of the lawyer or of a third \nperson, unless the client consents after full \ndisclosure.\" \n \n \nOn review, the accused argues that the information that \nhe disclosed to the insurance agents was neither a confidence nor \na secret. Alternatively, he argues that, because the insurance \nagents were acting as agents of the law firm, he did not reveal \ninformation to them in violation of DR 4-101(B)(1). (14) \nBecause we find that the information that the accused disclosed \nconstituted, under the circumstances of this proceeding, a client \nsecret, we need not decide whether it was a client confidence. \n \nDR 4-101(A) defines a secret, in part, as \"information \n[other than a confidence] gained in a current or former \nprofessional relationship * * * the disclosure of which * * * \nwould be likely to be detrimental to the client.\" By its terms, \nthat rule focuses on the source of the information disclosed and \nthe likely effect of the disclosure. Here, there is no question \nabout the source of the information that the accused disclosed. \nHe learned it from his clients in the course of representing \nthem. The question instead is whether disclosing the information \nto the insurance agents was \"likely to be detrimental to the \n[accused's] client[s].\" \n \nFive facts bear on that question. First, the accused \nheld the agents out as representatives of the firm, erroneously \nsuggesting that the agents would be acting in a fiduciary \ncapacity. (15) Second, the accused did not disclose in the \nintroductory letters that either he or the agents would receive \nany commission from any sale that occurred -- an omission that \nalso would cause the clients to place greater trust in the \nagent's recommendations. (16) Third, during the home visits, \nthe accused's elderly clients disclosed their confidential \nfinancial information to the insurance agents as part of the \ntrust review process. Fourth, most of the insurance agents came \nfrom other states, none had an ongoing relationship with the \naccused's clients, and all received no compensation for their \nwork in Oregon other than the commissions that they generated. \nFifth, the accused's clients were, on average, affluent, elderly, \nand, as his law partner testified, more susceptible to \nsalespeople. \n \nIn light of the false impression that the accused \ncreated that the agents would be acting in a fiduciary capacity, \nthe agents' lack of an ongoing relationship with the accused's \nclients, the compensation structure, and the accused's clients' \nvulnerable status, we find that the disclosure was likely to \nresult in this instance in the agents selling a substantial \nnumber of the accused's clients unnecessary insurance products, \nwith the attendant transaction costs. As the record discloses, \nthose costs were not insubstantial. The agents generated \napproximately $810,000 in commissions over a six-month period \nfrom the sale of insurance products to the accused's elderly \nclients. We conclude that, under the circumstances present here, \nthe information that the accused disclosed was \"likely to be \ndetrimental\" to his clients and thus a client secret within the \nmeaning of DR 4-101(A). \n \nHaving concluded that the information that the accused \ndisclosed was a secret, we turn to the question whether the \naccused knowingly disclosed that secret in violation of DR 4-101(B)(1) or knowingly used it for his own or another's advantage \nin violation of DR 4-101(B)(3). Regarding DR 4-101(B)(1), the \naccused argues that the persons to whom he revealed the \ninformation were the law firm's agents for the purposes of \nconducting the trust review. He argues that disclosing client \nsecrets to law firm agents did not violate DR 4-101(B)(1) because \nthe information disclosed was reasonably related to the agency. \nThe Bar does not dispute either of the accused's propositions but \ncontends that, even if the accused did not violate DR 4-101(B)(1), he still violated DR 4-101(B)(3). \n \nWe agree with the Bar that the accused violated DR 4-101(B)(3). (17) That rule prohibits lawyers from knowingly \nusing their clients' confidences and secrets for their own or \nanother person's advantage. In determining whether the accused \nviolated that rule, there is little dispute that the accused \ndisclosed his clients' names and addresses to FSN for his own or \nanother's advantage. The disclosure resulted in approximately \n$810,000 in commissions for the accused, Cornilles, FSN, and its \nagents. The dispute centers instead on whether the accused acted \nknowingly; that is, did the accused know that the information he \ndisclosed was \"likely to be detrimental\" to his clients and thus \nwas a secret? \n \nOn that point, the accused sent out batches of letters \nto his clients, beginning on April 19, 1996, and ending on \nOctober 25, 1996. (18) Even if the accused were not aware that \nthe disclosure was likely to be detrimental when he sent out the \nfirst letters, that conclusion became inescapable as the accused \nand Cornilles began receiving a staggeringly large amount of \nsales commissions. The amount of those commissions -- standing \nalone -- leads us to conclude that the accused knew that it was \nlikely that the agents were persuading the accused's elderly \nclients to make unnecessary purchases. Additionally, the accused \nhad actual notice of some problems. For instance, Cornilles and, \nwe infer, the accused knew in July 1996 that a client cancelled \nan earlier decision to sell her existing investments and buy an \nannuity when she discovered certain transaction costs that the \nagent had not mentioned. Similarly, Cornilles reported to the \naccused on September 16, 1996, that the daughter of another one \nof their clients was concerned \"about [the agent] pressuring her \nmother.\" (19) We find that, at least by October, the accused \nwas aware that the disclosure of his clients' names and addresses \nwas likely to be detrimental, and yet he continued to disclose \nthat information to FSN during the month of October in violation \nof DR 4-101(B)(3). \n \nIn its fifth cause of complaint, the Bar focused on one \ncouple whom the accused represented, the Martindells. The Bar \nalleged that the accused, both as a result of his own conduct and \nas a result of an insurance agent's conduct, violated the same \ndisciplinary rules that we have discussed. Our conclusions \nregarding the Martindells mirror the conclusions stated above, \nwith one exception. Because the Martindells were among the first \nclients whom the insurance agents contacted, the Bar has not \npersuaded us that the accused violated DR 4-101(B)(3) in regard \nto them. However, the Bar has proved that the accused's other \nactions regarding the Martindells violated DR 1-102(A)(3) and \nformer DR 5-101(A) (1996). \n \nHaving concluded that the accused violated DR 1-102(A)(3), DR 4-101(B)(3), and former DR 5-101(A) (1996), we turn \nto the appropriate sanction. We first consider: (1) the duty \nviolated; (2) the accused's mental state; and (3) the actual or \npotential injury caused by the accused's conduct. In re Kluge, \n332 Or 251, 259, 27 P3d 102 (2001); American Bar Association's \nStandards for Imposing Lawyer Sanctions 3.0 (1991) (amended 1992) \n(ABA Standards). We next decide whether any aggravating or \nmitigating circumstances exist. Kluge, 332 Or at 259; ABA \nStandards 3.0. Finally, we consider the appropriate sanction in \nlight of the court's case law. Kluge, 332 Or at 259. \n \nThe accused violated three duties that he owed his \nclients. He knowingly violated his duty to preserve his clients' \nsecrets. ABA Standards 4.2. He knowingly violated his duty of \ncandor to his clients. ABA Standards 4.6. Finally, the accused \nknowingly violated his duty to avoid conflicts of interest. ABA \nStandards 4.3. Regarding the actual or potential injury, some of \nthe accused's clients sustained actual injury as a result of his \nviolations. As noted, one couple had to pay a surrender fee of \nover $45,000 to cancel an investment. Others had to undertake \nsubstantial steps to avoid the investments that the insurance \nagents pressured them into purchasing. Still others faced the \nrisk that the agents would pressure them into unnecessarily \nselling their existing investments and purchasing insurance \nproducts with, as the record shows, substantial transaction \ncosts. \n \nThe ABA Standards establish, as a preliminary matter, \nthat suspension is the appropriate sanction for each of the three \nviolations. They provide that \"[s]uspension is generally \nappropriate when a lawyer knowingly deceives a client, and causes \ninjury or potential injury to the client.\" ABA Standards 4.62. \nSimilarly, \"[s]uspension is generally appropriate when a lawyer \nknowingly reveals information relating to the representation of a \nclient not otherwise lawfully permitted to be disclosed, and this \ndisclosure causes injury or potential injury to a client.\" ABA \nStandards 4.22. Finally, \"[s]uspension is generally appropriate \nwhen a lawyer knows of a conflict of interest and does not fully \ndisclose to a client the possible effect of that conflict, and \ncauses injury or potential injury to a client.\" ABA Standards \n4.32. \n \nHaving made a preliminary determination concerning the \nsanction, we next consider any aggravating and mitigating \ncircumstances. We find three aggravating circumstances. First, \nthe accused had a selfish motive. ABA Standards 9.22(b). The \naccused repeatedly put his own interest in receiving commissions \nfrom the sale of insurance products above his clients' interests. \nSecond, the accused committed three interrelated violations and \ndid so multiple times. ABA Standards 9.22(d). Finally, the \naccused's elderly clients were particularly vulnerable. ABA \nStandards 9.22(h). The record discloses that the accused's \nclients trusted their lawyer and believed that they could trust \nthe persons whom he had sent to help them. \n \nThe accused identifies two mitigating circumstances: \nthe absence of a prior disciplinary record and his reliance on \nMoore's ethics advice. We agree that the accused has no prior \ndisciplinary record. ABA Standard 9.32(a). We also have \nobserved that reliance on timely ethics advice may provide \nmitigation. In re Benett, 331 Or 270, 281, 14 P3d 66 (2000); see \nABA Standards 9.31 (defining \"mitigating circumstances\" generally \nas \"any considerations or factors that may justify a reduction in \nthe degree of discipline to be imposed\"). We give that factor \nlittle weight here, however. The accused and Cornilles entered \ninto the joint venture with FSN before providing the details of \nthat venture to Moore. Even when they later provided additional \ninformation to Moore, they failed to disclose a critical fact. \nCornilles told Moore that the trust reviewers would sell \ninsurance products to the accused's clients \"in only a minority \nof cases.\" Indeed, Moore understood that the likelihood of a \nsale was so remote that the possibility of the accused's receipt \nof a commission from a sale created only a possible conflict of \ninterest. \n \nAs the amount of the commissions that the agents \ngenerated suggests, the likelihood of a sale was greater than \nMoore understood. Had Moore had accurate information regarding \nthe joint venture, he might have concluded, as we do, that the \naccused used client secrets for his own advantage, failed to \ndisclose a conflict of interest, and made misrepresentations to \nhis clients. In these circumstances, we give only little weight \nto the accused and Cornilles' reliance on Moore's advice. (20) \nHaving considered the aggravating and mitigating factors, we \nconclude that, although the accused had no prior disciplinary \nrecord and did consult an ethics lawyer, his selfish motive, the \nnumber of violations, and the heightened vulnerability of some of \nhis clients substantially outweigh the mitigating factors. \n \nFinally, we turn to this court's case law for guidance. \nRelying on In re Morin, 319 Or 547, 878 P2d 393 (1994), the Bar \nargues that disbarment is the appropriate sanction. In Morin, \nthe lawyer intentionally and repeatedly directed his staff to \ncertify falsely that they had witnessed his clients sign \ndocuments. He intentionally lied to the Bar when asked about \nthat practice, and he assisted his staff in unlawfully practicing \nlaw. Finally, as this court found, the lawyer committed theft by \ndeception. In this proceeding, the accused's conduct was not \ncriminal, and the intentional disregard for the clients' \ninterests that was present in Morin is absent here. \n \nWe do not mean to minimize the accused's actions. He \neffectively sold his client list to insurance agents for a cut of \nthe commission. He withheld information from potentially \nvulnerable clients in order to permit those agents to gain access \nto them in their homes, and he failed to provide a timely \ndisclosure of his conflict of interest. Given the scale of the \naccused's misrepresentations and conflicts of interest, coupled \nwith his selfish motive for committing the misconduct and the \nactual and potential injury involved in his misconduct, we \ndetermine that the accused should be suspended from the practice \nof law for 36 months. \n \nThe accused is suspended from the practice of law for \n36 months, effective 60 days from the date of the filing of this \ndecision. \n \n \n \n \n \n1. The Oregon Rules of Professional Conduct became \neffective January 1, 2005. Because the conduct at issue here \noccurred before that date, the Code of Professional \nResponsibility applies. \n \nReturn to previous location. \n \n \n \n2. The accused and Cornilles later mailed the same letter \nto another 100 clients. \n \nReturn to previous location. \n \n \n \n3. The joint venture agreement states that its purpose is \n\"to solicit insurance sales utilizing [J.L. Kizer and \nAssociates]/FSN marketing agreements and soliciting agents and \ndirected to the client data base of [the law firm].\" \n \nReturn to previous location. \n \n \n \n4. The accused and Cornilles later explained that they did \nnot identify the insurance agents as such because they were \nconcerned that their clients would not agree to meet with the \nagents if they knew their true status. \n \nReturn to previous location. \n \n \n \n5. The law firm made the first 100 follow-up telephone \ncalls. After that, the firm turned the task of making follow-up \ntelephone calls over to FSN. \n \nReturn to previous location. \n \n \n \n6. Moore explained that, in his view, the accused and \nCornilles had only a possible conflict, not a likely one. \nAccordingly, he did not see the need for an earlier disclosure. \n \nReturn to previous location. \n \n \n \n7. Although Moore had told the accused and Cornilles that \nthey need not disclose any conflict of interest to their clients \nbefore the sale, they modified the letter after reviewing a \nletter from a Colorado lawyer involved in a similar joint \nventure. \n \nReturn to previous location. \n \n \n \n8. Although 160 clients purchased insurance products, 54 \nclients cancelled their purchases. Cornilles testified that the \nsales were cancelled for a variety of reasons, including the \nclient's failure to qualify for the product, \"buyer[']s remorse,\" \nand the client's decision not to incur the possibility of \npenalties if they later cancelled the purchase. As a result, \nonly 106 of the original 160 sales actually resulted in a client \npurchasing and receiving an insurance product. \n \nReturn to previous location. \n \n \n \n9. In June 1996, FSN approached the law firm about \nmarketing the trust review program to other lawyers. FSN and the \nlaw firm apparently entered into an agreement to that effect and \nby August had entered into marketing agreements with law firms in \nother states. \n \nReturn to previous location. \n \n \n \n10. The Bar does not contend on review that the accused \nmade additional misrepresentations. \n \nReturn to previous location. \n \n \n \n11. As Ositis makes clear, the adverb \"knowingly\" modifies \nthe verb \"do\" as well as the verbs \"assist\" and \"induce.\" The \ndecision in In re Morin, 319 Or 547, 878 P2d 393 (1994), does not \npoint in a different direction. The court held in that case that \na lawyer who gave his paralegals \"too much freedom in dealing \nwith clients, thereby allowing [the paralegals] to provide legal \nadvice to those clients\" violated DR 3-101(A). Id. at 564. The \nrule at issue in that case provides that \"[a] lawyer shall not \naid a nonlawyer in unlawful the practice of law\" and does not \ncontain the requirement -- present in the rule at issue here -- \nthat the lawyer's conduct be knowing. \n \nReturn to previous location. \n \n \n \n12. The Martindells reported the agent's conduct to the \naccused a year after the agent met with them in their home, long \nafter the trust review program had ended. \n \nReturn to previous location. \n \n \n \n13. Although the accused had instructed the insurance \nagents to disclose his interest after the client had agreed to \nthe sale, that disclosure comes too late to cure the earlier \nomission. \n \nReturn to previous location. \n \n \n \n14. The accused does not contend that his actions came \nwithin one of the exceptions to the rule set out in DR 4-101(C), \nnor does he argue that his clients consented to his using their \nconfidential or secret information after full disclosure. \n \nReturn to previous location. \n \n \n \n15. Both the introductory letter that the accused sent and \nthe first business card held out the insurance agents as the \nfirm's representatives. Even if the agents handed out a second \nbusiness showing their affiliation with FSN, both the letter and \nthe first business card left the erroneous impression that the \nagents would be acting as fiduciaries. \n \nReturn to previous location. \n \n \n \n16. The agents were supposed to disclose at the point of \nsale that the accused and Cornilles would receive a portion of \nthe commission. Even if the agents disclosed that fact, and we \nfind that many did not, the disclosure came too late. The agents \ndid not make the disclosure until after the client had agreed to \nbuy the insurance products. \n \nReturn to previous location. \n \n \n \n17. In view of the Bar's apparent concession on DR 4-101(B)(1), we decline to find that the accused violated that \nrule. \n \nReturn to previous location. \n \n \n \n18. The accused's employee explained: \n \n \n \n\"The first group of letters was sent on approximately \nApril 10, 1996, with subsequent mailings made on \napproximately May 13, June 5, June 13, June 19, July \n12, July 17, July 18, July 19, July 29, October 2 and \nOctober 25, [1996].\" \n \n \nReturn to previous location. \n \n \n \n19. Cornilles responded to the daughter's concerns by \ndirecting the agent not to meet with the mother any more and by \ntelling the accused, who was going to be meeting with the mother, \nthat \"this sale can be saved with proper handling and reassurance \nfrom you that this is a good move for her.\" \n \nReturn to previous location. \n \n \n \n20. The accused also contends that delay in the \ndisciplinary proceedings is a mitigating factor. ABA Standards \n9.32(j) (amended 1992). The accused, however, does not provide \nany facts or argument to support this contention. We note that, \nalthough this proceeding has taken a substantial amount of time \nto litigate, the case is factually complex and was hard fought. \nIn the absence of any showing that the Bar took an unreasonably \nlong period of time to pursue this matter, we do not give this \nfactor any weight. \n \nReturn to previous location. \n \n",
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| Oregon Supreme Court | Oregon Supreme Court | S | Oregon, OR |
2,594,215 | Feikens | 1971-04-28 | false | hunter-v-city-of-ann-arbor | Hunter | Hunter v. City of Ann Arbor | Robert H. HUNTER, Plaintiff, v. the CITY OF ANN ARBOR, a Michigan Municipal Corporation, Guy C. Larcom, Jr., and James C. Slaughter, Jointly and Severally, Defendants | Frederick L. McDonald, Hamilton & McDonald, Ypsilanti, Mich., for plaintiff., Jerold Lax, City Atty., Ann Arbor, Mich., for defendants. | null | null | null | null | null | null | null | Order Modifying Order Granting Plaintiff’s Motion for Preliminary Injunction April 28, 1971. | null | null | 3 | Published | null | <parties id="b905-10">
Robert H. HUNTER, Plaintiff, v. The CITY OF ANN ARBOR, a Michigan Municipal Corporation, Guy C. Larcom, Jr., and James C. Slaughter, jointly and severally, Defendants.
</parties><br><docketnumber id="b905-12">
Civ. A. No. 36150.
</docketnumber><br><court id="b905-13">
United States District Court, E. D. Michigan, S. D.
</court><br><decisiondate id="b905-15">
April 7, 1971.
</decisiondate><br><otherdate id="b905-16">
Order Modifying Order Granting Plaintiff’s Motion for Preliminary Injunction April 28, 1971.
</otherdate><br><attorneys id="b906-25">
<span citation-index="1" class="star-pagination" label="848">
*848
</span>
Frederick L. McDonald, Hamilton & McDonald, Ypsilanti, Mich., for plaintiff.
</attorneys><br><attorneys id="b906-26">
Jerold Lax, City Atty., Ann Arbor, Mich., for defendants.
</attorneys> | [
"325 F. Supp. 847"
]
| [
{
"author_str": "Feikens",
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"type": "010combined",
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"author_id": 1038,
"opinion_text": "\n325 F. Supp. 847 (1971)\nRobert H. HUNTER, Plaintiff,\nv.\nThe CITY OF ANN ARBOR, a Michigan Municipal Corporation, Guy C. Larcom, Jr., and James C. Slaughter, jointly and severally, Defendants.\nCiv. A. No. 36150.\nUnited States District Court, E. D. Michigan, S. D.\nApril 7, 1971.\nOrder Modifying Order Granting Motion for Preliminary Injunction April 28, 1971.\n*848 Frederick L. McDonald, Hamilton & McDonald, Ypsilanti, Mich., for plaintiff.\nJerold Lax, City Atty., Ann Arbor, Mich., for defendants.\nOrder Modifying Order Granting Plaintiff's Motion for Preliminary Injunction April 28, 1971.\n\nOPINION AND ORDER GRANTING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION\nFEIKENS, District Judge.\nThis is an action against the City of Ann Arbor, Michigan; its City Administrator, Guy C. Larcom, Jr.; and the *849 Director of the City's Department of Human Rights, James C. Slaughter. Plaintiff has alleged that he was fired from his position as Assistant Director of the Department of Human Rights without any justification, solely because he is a black man and because he sought to enforce the City's Human Rights Ordinance in an effort to end discrimination. He further alleges that this firing was done under color of law, without due process being afforded him, and that the manner of his termination has damaged him and will also cause him irreparable injury unless he is granted temporary and permanent injunctive relief.\nPlaintiff's application for preliminary injunction was heard, and testimony was taken, on March 17, 18, 19, and 23, 1971. Plaintiff called witnesses to testify as to the events leading up to and following his termination, and he also called an expert witness who testified as to the matter of institutional racism in the City. At the end of plaintiff's case, it appeared that the determination of whether preliminary relief would be granted turned on plaintiff's allegations that the City failed to afford him due process. The defendants, at the court's suggestion, limited their case to testimony bearing on the manner of the plaintiff's termination, and they also presented expert testimony on accepted municipal personnel practices with respect to terminations. In reaching a decision on this motion, the court has limited itself to a consideration of the testimony with respect to procedure, and has not considered the testimony relating to any alleged racially based motivations on the part of the City or its officials. It should be noted that counsel for the City requested and was given an opportunity to put into the record an offer of proof in the form of a written statement in rebuttal to the testimony of alleged discrimination. However, it should also be noted that this opinion is limited to plaintiff's motion for preliminary injunctive relief; that the findings of fact and conclusions of law stated herein are limited to the purpose of the motion, and that they are subject to modification at later stages of the suit.\nThe findings of fact are as follows: Plaintiff Hunter was employed by the City of Ann Arbor Department of Human Rights as a complaint investigator in 1966, and advanced to the position of Assistant Director. In May 1970, he was appointed Acting Director of the Department by defendant Larcom, the City Administrator. On November 30, 1970, defendant Slaughter assumed the position of Director of the Department, and Hunter resumed his former position as Assistant Director. The duties of the Assistant Director are to assist the Director under the Director's supervision. Hunter performed these duties until January 5, 1971, at which time a dispute arose between Hunter and the defendants.\nSlaughter sought the advice of the City's Personnel Director as to how to handle the matter. At the Director's suggestion, Slaughter called Hunter to his office for a conference on January 15, 1971. Subsequent to the conference, on January 18, and after again seeking the Personnel Director's advice, Slaughter sent the following communication to Hunter by certified mail, return receipt requested:\n January 18, 1971\nTO: ROBERT H. HUNTER, Assistant Director Human Rights Department\nFROM: JAMES C. SLAUGHTER, Director [signature] Human Rights Department\nRE: ATTENDANCE AND CONFORMITY TO THE RESPONSIBILITIES OF YOUR POSITION AS ASSISTANT DIRECTOR\n1. On Monday, January 4, 1971, you did not report for duty at 8:00 a. m. I was informed by the Principal Clerk Stenographer that you were taking the morning off and would be in in the afternoon.\nOn the above date, you arrived at approximately 12:15 p. m. dressed in slacks, sports shirt and jacket, *850 but left almost immediately and did not return to the office that day or to my knowledge perform any duties connected with your position.\n2. On January 5, 1971, you did not report for duty at 8:00 a. m. I was informed by the Principal Clerk Stenographer that you would be in in the afternoon. You came in at approximately 12:10 p. m. and left shortly thereafter. When I returned from lunch at approximately 2:00 p. m., I was informed that you had taken the rest of the day off on sick leave.\nYou have continued on sick leave since.\n3. On Wednesday, January 13, 1971, I was informed you were seen driving your car during duty hours.\n4. On Thursday, January 14, 1971, I observed you at Division and Huron Streets at approximately 12:00 noon driving your car.\n5. I was informed that you were observed in the Golden Falcon during the week of January 11, 1971.\n6. On Wednesday, January 13, 1971, you attended the School Board meeting at 7:30 p. m. According to an article in the Ann Arbor News, you participated in the meeting in a manner that is not the present policy of this Department.\n7. On January 15, 1971, when at my request you came in to discuss the concerns I had about your absences, I informed you of my concerns and questioned you about your activities, especially as they related to enrollment at the University of Michigan Undergraduate School. You may remember that you had requested permission to work part-time in order to go to school full-time and I refused that request. I informed you at our meeting on January 15, 1971, that I had reason to believe that you had enrolled full-time at the University of Michigan. You stated to me that you had enrolled but not full-time.\nI also questioned you about your illness. The only explanation I received was that you are sick and are seeing a doctor. I informed you that I accepted your explanation but, that if you were not being truthful, I was going to request your resignation. You informed me at that point that I could request your resignation if I choose but that I had better be ready to fire you. I informed you that if I requested your resignation I would be able to dismiss you; permitting you to resign would be for your benefit. At this point you have began to shout at me, accusing me of attempting to intimidate you. I consider your action of continuing to shout at me, even after my warning that I considered it insubordinate, an attempt to intimidate me and a serious act of insubordination.\nDue to all of the above, I have come to the following conclusions:\n1. Your activities in the past two weeks have not been those that are normally acceptable for an employee on sick leave.\n2. Your enrollment at the University of Michigan would seem to make it difficultif not impossibleto fulfill your full-time duties as Assistant Director.\n3. Your enrollment at the University of Michigan, knowing my full view on such an eventuality, raises question as to your commitment to the present HRD.\n4. You are insubordinate and such conduct is not acceptable in the HRD and will not be accepted from a staff person.\nIn order to resolve the matters discussed in this memorandum to the mutual benefit of yourself and the HRD, I request that you make any response *851 you determine appropriate in writing within 10 days of the receipt of this memorandum. I defer further action or discussion of the aforestated matters pending receipt of your response. JCS/\nHunter received the memorandum on January 19.\nIt was the intention of Slaughter that the requirement of a response \"within 10 days\" meant within ten calendar days. City Administrator Larcom, who reviewed the memorandum along with the Assistant City Administrator and the Personnel Officer prior to its being mailed to Hunter, thought that it meant ten working days.\nAfter receiving Slaughter's memorandum on the 19th, Hunter retained counsel, and his counsel mailed a letter to Slaughter dated January 27, 1971. The letter advised Slaughter that counsel had been retained in the matter, stated that the charges against Hunter were not based in fact, and requested \"for and on his behalf\" that a conference be scheduled within two days of Slaughter's receipt of the letter. Slaughter did not receive this letter until February 3, 1971, and it crossed in the mails with a letter that Slaughter had mailed Hunter on February 1, 1971, (fourteen calendar days and ten working days from January 19) terminating him from his employment effective January 29, 1971. Slaughter telephoned Hunter's attorney the day he received the letter on Hunter's behalf and a meeting was scheduled to be held on February 5, 1971, in the office of the City Attorney. On February 5, 1971, Hunter received the letter terminating him from his employment.\nThe meeting was held as scheduled, and was attended by Hunter, his attorney, Slaughter, and the City Attorney. After the meeting, Hunter's attorney requested a further opportunity to meet with City officials and on February 8 Slaughter sent him a letter stating that his request for additional discussion had been brought to the attention of Larcom, the City Administrator, who had expressed a willingness to discuss the matter further. In this letter, Slaughter reiterated that in his own judgment, ample cause existed for Hunter's termination, based on the matters stated in his January 18 memorandum. Hunter's attorney arranged a meeting with Larcom, which was held on February 10, and though Larcom and Hunter's attorney both expressed a willingness to hold further meetings for the purpose of discussing the termination, none were successfully scheduled. This lawsuit was filed March 5, 1971.\nIt is found that the City and its officers were not following any particular procedure in this case, although notice is taken of the fact that in cases of this kind a fact-finding hearing had been afforded before the City Administrator and Personnel Administrator at which counsel could be present and notes taken, and that an appeal from that hearing could be taken to the City Council or the Mayor. Indeed, it is interesting to note that the City is in the process of adopting procedures and rules which would cover employees in Hunter's category, and would provide a systematic hearing procedure in event of termination or suspension.\nThe conclusions of law are as follows:\n\nI\n\nJurisdiction\nJurisdiction is present over the parties and the subject matter under 28 U.S.C. § 1331, which gives district courts \"original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum of $10,000 * * * and arises under the Constitution * * * of the United States.\" Hunter has alleged that the City of Ann Arbor and its officials have terminated his employment without affording him due process of law, and also that the City and its officials discriminated against him on account of his race. Clearly, such conduct if proved would be in violation of the Fourteenth Amendment. Further, Hunter alleges that the manner of his termination has damaged him in the *852 amount of $77,000. These allegations confer jurisdiction, Hicks v. City of Los Angeles, 240 F.2d 495 (9th Cir. 1957); Lowe v. Manhattan Beach City School District, 222 F.2d 258 (9th Cir. 1955); Agnew v. City of Compton, 239 F.2d 226 (9th Cir. 1957).\nA further ground of jurisdiction alleged by Hunter is that the actions of the City and its officers are in violation of 42 U.S.C. § 1983,[1] and that therefore this court has jurisdiction to grant appropriate relief under 28 U.S.C. § 1343.[2]\nMonroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961), held that a city was not a \"person\" within the meaning of Section 1983, and thus not subject to suit for damages on Section 1983 grounds. Monroe v. Pape has been consistently cited as prohibiting damage suits on Section 1983 grounds against the states and their political subdivisions, including cities. See, e. g., Egan v. City of Aurora, 365 U.S. 514, 81 S. Ct. 684, 5 L. Ed. 2d 741 (1961), and United States ex rel. Gittlemacker v. Philadelphia County, 413 F.2d 84, 86 (3rd Cir. 1969), and cases cited therein at note 2.\nThe question of whether Monroe v. Pape should be extended to exclude municipalities from liability in actions seeking injunctive relief rather than damages pursuant to 42 U.S.C. § 1983, has been answered affirmatively by the Court of Appeals for this circuit in Deane Hill Country Club, Inc., v. City of Knoxville, 379 F.2d 321, 324 (6th Cir. 1967), cert. den. 389 U.S. 975, 88 S. Ct. 476, 19 L. Ed. 2d 467 (1967). Other circuits have reached the opposite conclusion, however, and held that injunctive relief against a city was not precluded by Monroe v. Pape. See, Schnell v. City of Chicago, 407 F.2d 1084, 1086 (7th Cir. 1969), and Adams v. City of Park Ridge, 293 F.2d 585, 587 (7th Cir. 1961), decided by the same court that decided Monroe v. Pape six months after the Supreme Court's decision. In Harkless v. Sweeny Independent School District, 427 F.2d 319 (5th Cir. 1970), it was held that a district court erred in holding that a school district was not included within the meaning of \"person\" in a suit for equitable relief pursuant to Section 1983. The reason given was that such a construction of Monroe v. Pape went beyond a permissible reading of the Supreme Court's opinion, since the issue was not directly faced and decided in Monroe. The Supreme Court denied certiorari in the Harkless case, 400 U.S. 991, 91 S. Ct. 451, 27 L. Ed. 2d 439 (1971), and it would appear that the question is an open one. It seems that the better reasoning supports the view that Monroe v. Pape did not insulate a city, for all time and in all circumstances, from injunctive orders when that city is acting so as to violate constitutionally protected rights. It is concluded that 28 U.S.C. § 1343 provides an additional basis for jurisdiction as to the injunctive relief sought against the City of Ann Arbor and its officials.\n\nII\n\nThe Merits of Hunter's Motion for Preliminary Injunction\nA preliminary injunction will be granted only upon a showing that the plaintiff *853 will suffer irreparable harm and that a likelihood exists that he will ultimately prevail on the merits. The granting or denying of an application is within the sound discretion of the court, and the court must weigh the effect that granting the requested relief will have on the defendants. Corning Glass Works v. Lady Cornella Inc., 305 F. Supp. 1229 (E.D.Mich.1969); Tichon v. Harder, 308 F. Supp. 839 (D. Conn.1970); Yakus v. United States, 321 U.S. 414, 64 S. Ct. 660, 88 L. Ed. 834 (1944).\nHunter alleges that the City and its officials terminated his employment because of his race. The court makes no finding as to this allegation. He also alleges that by the manner of his termination the City and its officials denied him due process and caused him irreparable harm. As to this allegation it is concluded that the plaintiff has sustained his burden.\nIt is the City's claim that the requirements of due process were satisfied by the manner in which Robert Hunter was terminated. The City correctly points out that due process requirements are flexible and differ in response to the nature of the proceeding and the character of the rights affected. Hannah v. Larche, 363 U.S. 420, 80 S. Ct. 1502, 4 L. Ed. 2d 1307 (1960). The City further argues that in the situation where a municipality discharges an assistant department head the Supreme Court has determined that due process does not require a hearing, relying on Cafeteria and Restaurant Workers Union, Local 473, AFL-CIO v. McElroy, 367 U.S. 886, 81 S. Ct. 1743, 6 L. Ed. 2d 1230 (1961).\nHunter's case does not fit the facts of Cafeteria Workers. There the Supreme Court was dealing with a summary dismissal power arising from the historically established absolute authority of the commander of a federal military installation. Further, the issue went to the right to challenge the reasons for withdrawal of a security rating, rather than the reasons for loss of employment per se. It would seem that in the present case the power the City claims to summarily dismiss Hunter is of an entirely different character from that of the commander of the Naval Weapons Plant to summarily withdraw the identification badge of a contractor's employee.\nComparing the facts only of Cafeteria Workers to those of this case is not sufficient, however. That case interestingly teaches also that in order to determine the requirements of due process in the discharge of a public employee, a court must apply a balancing process, weighing \"the precise nature of the government function involved\" against \"the private interest that has been affected by governmental action.\" 367 U.S. at 895, 81 S.Ct. at 1748. By holding that the discharged employee in Cafeteria Workers did not have a right to a hearing, the Supreme Court did not hold that public employees were not entitled to the protection of the Constitution. Rather, the court determined that under its balancing process the proprietary function of the government in protecting the security of a federal installation outweighed the private interest of the employee in being \"advised of the specific grounds for her exclusion\" and being \"accorded a hearing at which she might refute them.\" 367 U.S. at 894, 81 S.Ct. at 1744. The court concluded that in those circumstances, due process did not require a hearing.\nTo apply the requisite balancing process in this case it is necessary to determine the nature of the government function here involved, the nature of the private interest affected, and the effect that giving protection to the private interest would have on the government function.\nIt seems clear that the government function involved in this case is that of an employer, and it is the claim of the City that as an employer it needs the power to summarily dismiss its assistant department heads. The City has argued, and its expert witness testified, that if it does not have the power to summarily *854 dismiss high-level employees, its employer-related function will be severely damaged. Specifically, the City claims that the power of summary dismissal is required to maintain a relationship of trust between its department heads and their immediate subordinates, and also to maintain high levels of morale and efficiency at all levels of employment.\nAgainst this interest, admittedly an important one, must be weighed the interest of Hunter that is being affected by the City's action. Hunter, like any employee, has a purely economic interest in being employed. But although the immediate economic effects of his discharge are substantial, it is clear that his interest involves more than a narrow interest in a particular job. Hunter also has an interest in his future employability. This is an interest which every employee has and which can be adversely affected by any termination. It is, however, particularly susceptible to damage in the case of a person who is seeking employment in high levels of city government, where employability is highly dependent upon professional reputation and past employment performance and where employers can properly demand the fullest disclosure of an applicant's personal and employment history.\nWhen the effects of government action on the individual's interest are so wide ranging and basic, it is a constitutional requirement that the government's action not be based on certain types of motives and that it have some rational basis. This was recognized by the Supreme Court in Cafeteria Workers when it stated that its decisions in United Public Workers of America (CIO) v. Mitchell, 330 U.S. 75, 67 S. Ct. 556, 91 L. Ed. 754 (1947), and Wieman v. Updegraff, 344 U.S. 183, 73 S. Ct. 215, 97 L. Ed. 216 (1952), demonstrated that:\n\"* * * the state and federal governments, even in the exercise of their internal operations, do not constitutionally have the complete freedom of action enjoyed by a private employer. * * * We may assume that Rachel Brawner could not constitutionally have been excluded from the Gun Factory if the announced grounds for her exclusion had been patently arbitrary or discriminatory.\" 367 U.S. at 898, 81 S.Ct. at 1750.\nA number of recent cases have explored the meaning of this statement in Cafeteria Workers and discussed the requirements of due process in various cases of discharge of employees by governmental bodies. In Birnbaum v. Trussell, 371 F.2d 672 (2nd Cir. 1966), the court reviewed numerous decisions and concluded that the employee could not be afforded his constitutional rights to a non-arbitrary and non-discriminatory decision without procedural protections.\n\"The principle to be extracted from these cases is that, whenever there is a substantial interest, other than employment by the state, involved in the discharge of a public employee, he can be removed neither on arbitrary grounds nor without a procedure calculated to determine whether legitimate grounds do exist. * * * In this case, there are two substantial interests involved: reputation and the ability to pursue a profession effectively. Both are ordinarily accorded meticulous protection, by the libel laws and the latter, in particular, by the rules designed to prevent direct injury by arbitrary state action. [citing cases]. 371 F.2d 672, 678, and n. 13. (Emphasis added.)\nBirnbaum was a case in which a medical doctor was discharged from a hospital staff, without a hearing to determine any facts, as a result of charges that he was anti-Negro and that on three specific occasions he had abused Negro hospital workers. The Court of Appeals held that in such circumstances a hearing was prerequisite to discharge.\nIn Roth v. Board of Regents, 310 F. Supp. 972, 979 (W.D.Wis.1970), the court stated that \"[t]he time is past in which public employment is to be regarded as a `privilege' which may be extended upon any conditions which public officials may choose to impose,\" and concluded that non-tenured professors in a state university *855 were entitled under the Constitution to protection against arbitrary non-retention, and that procedural safeguards against violation of this substantive right were therefore necessary if the constitutional rights were to have any real meaning. The court held that in the circumstances minimal procedural due process required a statement of reasons for non-retention, and a hearing at which the non-retained professor would have the opportunity to submit evidence relevant to the stated reasons. See, also, Gouge v. Joint School District, 310 F. Supp. 984 (W.D.Wis.1970); and Lucas v. Chapman, 430 F.2d 945 (5th Cir. 1970).\nThe rationale of all these cases is that the Constitution protects a governmental employee from a patently arbitrary or discriminatory discharge, since it protects every citizen from harm caused by discriminatory or arbitrary governmental actions. The conclusion that a hearing is necessary in connection with a discharge is in actuality a conclusion that unless such a procedure is afforded, no one will know whether the action taken by the government was discriminatory or arbitrary, and no protection will be given to the employee's right not to be so discharged. This reasoning goes to procedures, and does not attempt to define what reasons a government must have before it discharges an employee. It is not the job of a federal court to decide for a city whether an employee's retention is advisable, and once a procedure is followed that makes it clear that there was a factual basis for the action taken, and that it was not the result of constitutionally impermissible discrimination, the matter is at an end. As the court stated in Roth, supra:\n\"in applying the constitutional doctrine, the court will be bound to respect bases for non-retention enjoying minimal factual support and bases for non-retention supported by subtle reasons.\" 310 F. Supp. 979.\nIt is concluded in this case that plaintiff Hunter is entitled to the substantive constitutional protections discussed in Cafeteria Workers, supra, i. e., that he cannot be constitutionally excluded from his employment on patently arbitrary or discriminatory grounds. It is further concluded that the substantive constitutional protections to which he is entitled cannot be afforded him without procedural safeguards, safeguards the like of which were discussed in Cafeteria Workers, Birnbaum, Roth, and Lucas, supra, and which are calculated to determine whether legitimate grounds for discharge do exist, grounds which are not based on a misapprehension of fact, or on constitutionally inappropriate factors such as race. It is further concluded that to date the procedure followed by the defendants in this case has not afforded Hunter procedural protection of his substantive rights and that the failure to afford such a procedure has caused him irreparable harm.\nThe City has vigorously resisted this conclusion, and has argued that even if this court concludes that a hearing should have been afforded Hunter, it must also conclude that the procedure thus far had served the purpose of a hearing and also that Hunter's conduct with regard to the matter made it unnecessary for the City to do anything more than it did.\nIt cannot be said that the procedure thus far afforded Hunter by the City served the purpose of giving protection to Hunter's right not to be discharged for arbitrary or discriminatory reasons. At no time before or after his termination was Hunter afforded an opportunity to appear before anyone who had not been involved as an adversary against him in order to refute the charges that had been made. Hunter's conference with Slaughter advised Hunter of the dissatisfaction that Slaughter had with Hunter's performance of his duties. Slaughter's memorandum seems to have served the same function, and the City's contention that Hunter's failure to respond in exact accordance with the terms of the memorandum closed the matter irrevocably is not tenable. The first meeting among Hunter, Hunter's counsel *856 Slaughter, and the City Attorney was a highly adversary occasion, and at any rate no presentation of evidence relevant to the charges was made. Nor does it seem possible that any presentation of evidence could have been given a dispassionate consideration, given the fact that the City Attorney had at that time already advised Slaughter as to how to proceed in order to effectuate Slaughter's decision to terminate Hunter.\nThe same problem existed with regard to the meeting between Hunter's attorney and the City Administrator. The City Administrator had also reviewed with Slaughter, prior to the mailing of the memorandum, the procedures Slaughter should follow to effectuate his decision to terminate Hunter. Having done so, it was extremely difficult for him to take a non-adversary view of any evidence that might have been presented, and the meetings with him could no longer be considered to afford a dispassionate review of the decision that was being challenged. At no time was Hunter given an opportunity to appear before anyone who had not previously been consulted with regard to the best method of effectuating his termination. In these circumstances, it is clear that no one before whom he appeared, in person or by counsel, was in a position to reach any conclusion other than the one reached by Slaughter regarding Hunter's performance of his duties at the time the dispute began.\nWith regard to the question whether Hunter's conduct in not seeking further proceedings before City Council or the Mayor compels a conclusion that it was unnecessary for the City to do anything more than it did, it can only be said that it was not Hunter's responsibility to devise a procedure for the City to follow with regard to his case. Rather, it is the City's responsibility to provide Hunter with a hearing that satisfied due process.\nAgain, no conclusion is intimated as to the ultimate question whether such grounds were present, nor is any direction given or intended to be given respecting what may be proper grounds, except that they cannot be patently arbitrary or discriminatory, wholly unsupported in fact or wholly without reason.\nIt would seem proper to remark that in any event, it is difficult to see how holding that some factual resolution must be reached regarding the reasons for a municipal employee's discharge will damage the municipality's interest as an employer. Rather, it seems that a city's taking care to act only on the basis of a true state of affairs and to avoid any appearance of improper motives could only add to the morale of city employees and the efficiency of city departments, and to the necessary relationship of trust between department heads and their subordinates. It is clear that the City of Ann Arbor realizes this fact, in that it is now taking steps to provide a grievance procedure covering employees who are not presently under collective bargaining agreements containing grievance procedures. Therefore:\nIt is ordered that Robert Hunter be reinstated forthwith in the position of Assistant Director of the Human Rights Department of the City of Ann Arbor, which reinstatement shall be retroactive to the date of his termination from that position and that the City of Ann Arbor shall pay and continue to pay to him the same rate and amount of compensation as he had received in that position prior to his termination;\nIt is further ordered that the City need not require Robert Hunter to engage in active duty in that position;\nIt is further ordered that nothing in this Order shall be construed to prevent the defendant City or its agents from proceeding with the complete termination of Robert Hunter, including termination of his rights, privileges, and compensation in his position, on the condition that there are observed the requirements of procedural due process as set forth herein.\n\n\n*857 ORDER MODIFYING ORDER GRANTING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION\nThe defendant City having filed a Motion for Suspension of Preliminary Injunction in accordance with Rule 62 of the Rules of Civil Procedure and for security in accordance with Rule 65, Rules of Civil Procedure; and the plaintiff having been heard in response thereto; and the court having given the matter full consideration and being again of the opinion that the provisions of Rule 65(c) of the Federal Rules of Civil Procedure with respect to security for costs and damages are not fully responsive to the problems arising upon the entry of an order requiring the reinstatement of an employee and the payment of his salary, therefore,\nIt is hereby ordered:\n1. That as to the period from the date of the City's termination of Robert Hunter to April 7, 1971, the requirement of this court's Order that the City pay Robert Hunter's salary is suspended during the pendency of defendant's appeal. This suspension of payment provides substantial security to defendant;\n2. That as to the period beginning April 7, 1971, the City shall forthwith pay and continue to pay Robert Hunter's salary, as required by the Order of this court granting Preliminary Injunction;\n3. That said payment of Robert Hunter's salary shall continue at least until the conclusion of such hearing as the City may afford Robert Hunter with regard to his employment status;\n4. That the City shall continue to provide to Robert Hunter the full health and medical benefits to which he was entitled as Assistant Director of the Ann Arbor Human Rights Department, from the date of his termination by the City at least until the conclusion of such hearing as the City may afford him with regard to his employment status;\n5. That any questions regarding the return by Robert Hunter to the City of Ann Arbor of paid-out retirement benefits shall await the determination of such hearing as the City may afford him with regard to his employment status; and\n6. That in view of the provisions for security in Paragraph 1 hereof, Robert Hunter is not required to furnish further security and because of the public nature of the question presented, he is not required to post bond or furnish security for costs.\nNOTES\n[1] 42 U.S.C. § 1983 provides that:\n\n\"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.\"\n[2] 28 U.S.C. § 1343 provides:\n\n\"The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person: * * *\n\"(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States; * * *\"\n\n",
"ocr": false,
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]
| E.D. Michigan | District Court, E.D. Michigan | FD | Michigan, MI |
298,683 | null | 1971-09-13 | false | rowan-r-bailey-v-rowan-drilling-company-inc | null | Rowan R. Bailey v. Rowan Drilling Company, Inc. | null | null | null | null | null | null | null | null | null | null | null | null | 0 | Published | null | null | [
"447 F.2d 502"
]
| [
{
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"author_id": null,
"opinion_text": "447 F.2d 502\n Rowan R. BAILEY, Plaintiff-Appellant,v.ROWAN DRILLING COMPANY, Inc., et al., Defendants-Appellees.\n No. 71-2052 Summary Calendar.*\n United States Court of Appeals, Fifth Circuit.\n September 13, 1971.\n \n Appeal from the United States District Court for the Eastern District of Louisiana; Lansing L. Mitchell, Judge.\n Donald V. Organ, New Orleans, La., for plaintiff-appellant.\n William K. Christovich, New Orleans, La., for defendants-appellees.\n Before GEWIN, GOLDBERG, and DYER, Circuit Judges.\n PER CURIAM:\n \n Affirmed. See Local Rule 21.1\n \n \n Notes:\n \n \n *\n Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York, 5 Cir. 1970, 431 F.2d 409, Part I\n \n \n 1\n See N.L.R.B. v. Amalgamated Clothing Workers of America, 5 Cir. 1970, 430 F.2d 966\n \n \n ",
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]
| Fifth Circuit | Court of Appeals for the Fifth Circuit | F | USA, Federal |
349,989 | Browning, Choy, Curtis, Per Curiam | 1977-11-11 | false | mark-alan-blackburn-v-united-states-district-court-for-the-northern | null | Mark Alan Blackburn v. United States District Court for the Northern District of California, United States of America, Real Party in Interest | Mark Alan BLACKBURN, Petitioner, v. UNITED STATES DISTRICT COURT FOR the NORTHERN DISTRICT OF CALIFORNIA, Respondent, United States of America, Real Party in Interest | Peter R. Stromer (argued), San Jose, Cal., for petitioner., Donald Ayer, Asst. U. S. Atty. (argued), San Francisco, Cal., for respondent. | null | null | null | null | null | null | null | null | null | null | 2 | Published | null | <parties id="b420-11">
Mark Alan BLACKBURN, Petitioner, v. UNITED STATES DISTRICT COURT FOR the NORTHERN DISTRICT OF CALIFORNIA, Respondent, United States of America, Real Party in Interest.
</parties><br><docketnumber id="b420-14">
No. 77-1105.
</docketnumber><br><court id="b420-15">
United States Court of Appeals, Ninth Circuit.
</court><br><decisiondate id="b420-16">
Nov. 11, 1977.
</decisiondate><br><attorneys id="b421-12">
<span citation-index="1" class="star-pagination" label="333">
*333
</span>
Peter R. Stromer (argued), San Jose, Cal., for petitioner.
</attorneys><br><attorneys id="b421-13">
Donald Ayer, Asst. U. S. Atty. (argued), San Francisco, Cal., for respondent.
</attorneys><br><judges id="b421-15">
Before BROWNING and CHOY, Circuit Judges, and CURTIS,
<a class="footnote" href="#fn*" id="fn*_ref">
*
</a>
District Judge.
</judges><div class="footnotes"><div class="footnote" id="fn*" label="*">
<a class="footnote" href="#fn*_ref">
*
</a>
<p id="b421-19">
Honorable Jesse W. Curtis, Senior United States District Judge, Central District of California, sitting by designation.
</p>
</div></div> | [
"564 F.2d 332"
]
| [
{
"author_str": "Per Curiam",
"per_curiam": false,
"type": "010combined",
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"download_url": "http://bulk.resource.org/courts.gov/c/F2/564/564.F2d.332.77-1105.html",
"author_id": null,
"opinion_text": "564 F.2d 332\n Mark Alan BLACKBURN, Petitioner,v.UNITED STATES DISTRICT COURT FOR the NORTHERN DISTRICT OFCALIFORNIA, Respondent,United States of America, Real Party in Interest.\n No. 77-1105.\n United States Court of Appeals,Ninth Circuit.\n Nov. 11, 1977.\n \n Peter R. Stromer (argued), San Jose, Cal., for petitioner.\n Donald Ayer, Asst. U. S. Atty. (argued), San Francisco, Cal., for respondent.\n Appeal from the United States District Court for the Northern District of California.\n Before BROWNING and CHOY, Circuit Judges, and CURTIS,* District Judge.\n PER CURIAM:\n \n \n 1\n On July 14, 1976, petitioner Blackburn was indicted by a grand jury on charges of violating 18 U.S.C. § 1702 Obstruction of Correspondence. Trial was held before a jury on September 20, 1976. On September 24 a mistrial was declared when the jury was unable to reach a verdict. A retrial was originally scheduled for December 6, but on November 17 the district court vacated the scheduling sua sponte and set the case for January 3, 1977. Petitioner Blackburn had no opportunity to object to this rescheduling. On December 7, he moved for dismissal of the indictment on the grounds that his constitutional and statutory rights to a speedy trial had been violated. The district court denied this motion, and reset petitioner's trial for January 14, 1977, to afford him an opportunity to seek review. This delay was the first attributable to petitioner. Petitioner seeks a writ of prohibition, or alternatively, a writ of mandamus, to restrain the respondent court from holding a second trial on the indictment.\n \n \n 2\n Four factors are to be balanced in determining whether a delay in trial rises to the level of a Sixth Amendment violation: length of delay, reason for delay, defendant's assertion of his right, and prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In Barker, over five years elapsed between defendant's arrest and trial. Only seven months of the delay was supported by a strong excuse. Barker spent ten months in jail awaiting trial, and, as the Court noted, \"was prejudiced to some extent by living for over four years under a cloud of suspicion and anxiety.\" 407 U.S. at 534, 92 S.Ct. at 2194. Nonetheless, the Court held the delay did not violate Barker's Sixth Amendment rights because there was no showing of actual prejudice to the presentation of his defense, and because it appeared to the Court that Barker did not really want a speedy trial since he had acquiesced in most of the continuances sought by the state.\n \n \n 3\n In the present case, fourteen weeks and two days elapsed between the declaration of a mistrial (September 24, 1976) and the final scheduling of retrial (January 3, 1977). Petitioner did not object to the original trial setting of December 6. He did object on December 7 to the resetting on January 3. The period of delay in which petitioner did not acquiesce, therefore, was less than one month. As to prejudice, petitioner simply asserts in conclusory fashion that \"the length of the delay has dimmed the memory of both parties and witnesses to the alleged offense herein which occurred on or about March 26, 1976, almost 13 months ago.\" No showing has been made that any witness's memory as to given matters has been dimmed or that the presentation of petitioner's defense has been otherwise impaired as a result of this delay. Furthermore, unlike the defendant in Barker, petitioner has remained free on bond throughout the proceeding. While there may be merit in petitioner's complaint that he has been \"unable to lead a normal life because of community suspicion and his own anxiety,\" this prejudice particularly in light of the decision in Barker involving a much greater deprivation is not grave. On balance, the short delay involved here does not rise to the level of a constitutional violation.\n \n \n 4\n Petitioner also claims that the delay in retrial violated his statutory rights under the Speedy Trial Act of 1974, and that dismissal is therefore required. Petitioner relies primarily on 18 U.S.C. § 3161(e), which provides in relevant part:\n \n \n 5\n If the defendant is to be tried again following a declaration by the trial judge of a mistrial or following an order of such judge for a new trial, the trial shall commence within sixty days from the date the action occasioning the retrial becomes final. * * *\n \n \n 6\n Section 3161 does not provide for dismissal for failure to commence retrial within the prescribed 60-day period. Section 3162 of the Act does provide for dismissal for failure to comply with the time limits imposed under section 3161(b) on indictment after arrest, and for failure to comply with the time limits imposed under section 3161(c) on trial after arraignment; however, no sanction is provided in section 3162 for failure to comply with the time limits on retrial imposed under section 3161(e). Petitioner does not argue, and we do not consider, whether section 3162 was intended to apply to section 3161(e) violations despite the absence of an express provision to that effect, because section 3163(c) provides that section 3162 sanctions are not to take effect until July 1, 1979.\n \n \n 7\n Petitioner argues that under the decision of the Supreme Court in Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973), dismissal is the only appropriate remedy for the violation of defendant's right to speedy trial. However, the dismissal ordered in Strunk resulted from the violation of defendant's constitutional right to speedy trial, 412 U.S. at 439, 93 S.Ct. at 2263 and petitioner has failed to sustain his claim under the Sixth Amendment.\n \n \n 8\n Petitioner argues that the rationale of this court's prior decision in United States v. Tirasso, 532 F.2d 1298 (9th Cir. 1976), dictates dismissal. Tirasso involved the construction and application of section 3164(c) of the Speedy Trial Act. That section requires that a pretrial detainee be released from custody on bail if the government fails to bring him to trial within 90 days of incarceration. The defendants in Tirasso were originally indicted in the Southern District of New York, but the case was removed to the District of Arizona for trial. Transfer of the case caused the 90-day period to lapse without the trial having begun. The defendants moved for their release pursuant to section 3164(c). The district court denied the motion. This court reversed, finding that the language of section 3164 is straightforward and unambiguous in requiring the release of detainees for failure to commence trial within the appropriate time period. Petitioner argues that the literal construction given to the Act in Tirasso which resulted in a holding that the \"excludable time\" provisions of section 3161(h) were inapplicable to section 3164 requires a similar approach to the construction of section 3161(e) in this case, and a holding that there are no exceptions to the 60-day time limit for retrial mandated by section 3161(e). But whether or not such a holding is warranted, Tirasso provides no support for the remedy which petitioner seeks. The section of the Speedy Trial Act applied in Tirasso specifically provides for release as the sanction for noncompliance. Petitioner points to no statutory authority for dismissal for failure to comply with section 3161(e).\n \n \n 9\n The order of the district court denying petitioner's motion for dismissal is affirmed.\n \n \n \n *\n Honorable Jesse W. Curtis, Senior United States District Judge, Central District of California, sitting by designation\n \n \n ",
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]
| Ninth Circuit | Court of Appeals for the Ninth Circuit | F | USA, Federal |
1,657,117 | Schwartz, C.J., and Gersten and Fletcher | 1996-05-15 | false | state-v-rodriguez | Rodriguez | State v. Rodriguez | null | null | null | null | null | null | null | null | null | null | null | null | 2 | Published | null | null | [
"673 So. 2d 187"
]
| [
{
"author_str": null,
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"opinion_text": "\n673 So.2d 187 (1996)\nThe STATE of Florida, Appellant,\nv.\nPedro RODRIGUEZ, Appellee.\nNo. 96-358.\nDistrict Court of Appeal of Florida, Third District.\nMay 15, 1996.\n*188 Robert A. Butterworth, Attorney General and Sandra S. Jaggard, Assistant Attorney General, for appellant.\nBennett H. Brummer, Public Defender and Howard K. Blumberg, Assistant Public Defender, for appellee.\nBefore SCHWARTZ, C.J., and GERSTEN and FLETCHER, JJ.\nSCHWARTZ, Chief Judge.\nWhile the evidence presented at the sentencing hearing was arguablythough curablyinsufficient under the Barbera[1]-Herrin[2] rule, compare State v. Gordon, 645 So.2d 140 (Fla. 3d DCA 1994), review denied, 652 So.2d 816 (Fla.1995) with State v. Porter, 659 So.2d 328 (Fla. 3d DCA 1995), the downward departure sentence imposed below is affirmed because the state made no contemporaneous claim to that effect and thus did not preserve the issue. See Evans v. State, 619 So.2d 520 (Fla. 1st DCA 1993); Santini v. State, 404 So.2d 843 (Fla. 5th DCA 1981); Pinder v. State, 396 So.2d 272 (Fla. 3d DCA 1981); State v. Hinton, 305 So.2d 804, 808 n. 2 (Fla. 4th DCA 1975).\nNOTES\n[1] Barbera v. State, 505 So.2d 413 (Fla.1987).\n[2] Herrin v. State, 568 So.2d 920 (Fla.1990).\n\n",
"ocr": false,
"opinion_id": 1657117
}
]
| District Court of Appeal of Florida | District Court of Appeal of Florida | SA | Florida, FL |
445,314 | Clark, Godbold, Thomas | 1985-02-11 | false | percy-leo-dobard-v-we-johnson-warden-holman-correctional-institution | null | Percy Leo Dobard v. W.E. Johnson, Warden, Holman Correctional Institution | Percy Leo DOBARD, Petitioner-Appellant, v. W.E. JOHNSON, Warden, Holman Correctional Institution, Respondent-Appellee | Ralph I. Knowles, Jr., Tuscaloosa, Ala., Barry Friedman, Davis, Polk & Wardwell, Washington, D.C., for petitioner-appellant., Edward Carnes, Asst. Atty. Gen., Montgomery, Ala., for respondent-appellee. | null | null | null | null | null | null | null | Rehearing and Rehearing En Banc Denied Feb. 11, 1985. | null | null | 22 | Published | null | <parties data-order="0" data-type="parties" id="b1579-11">
Percy Leo DOBARD, Petitioner-Appellant, v. W.E. JOHNSON, Warden, Holman Correctional Institution, Respondent-Appellee.
</parties><br><docketnumber data-order="1" data-type="docketnumber" id="b1579-14">
No. 84-7281.
</docketnumber><br><court data-order="2" data-type="court" id="b1579-15">
United States Court of Appeals, Eleventh Circuit.
</court><br><decisiondate data-order="3" data-type="decisiondate" id="b1579-16">
Jan. 8, 1985.
</decisiondate><br><otherdate data-order="4" data-type="otherdate" id="b1579-17">
Rehearing and Rehearing En Banc Denied Feb. 11, 1985.
</otherdate><br><p data-order="5" data-type="judges" id="b1579-20">
Clark, Circuit Judge, filed dissenting opinion.
</p><br><attorneys data-order="6" data-type="attorneys" id="b1580-16">
<span citation-index="1" class="star-pagination" label="1504">
*1504
</span>
Ralph I. Knowles, Jr., Tuscaloosa, Ala., Barry Friedman, Davis, Polk & Wardwell, Washington, D.C., for petitioner-appellant.
</attorneys><br><attorneys data-order="7" data-type="attorneys" id="b1580-17">
Edward Carnes, Asst. Atty. Gen., Montgomery, Ala., for respondent-appellee.
</attorneys><br><p data-order="8" data-type="judges" id="b1580-19">
Before GODBOLD, Chief Judge, CLARK, Circuit Judge, and THOMAS
<a class="footnote" href="#fn*" id="fn*_ref">
*
</a>
, District Judge.
</p><div class="footnotes"><div class="footnote" data-order="9" data-type="footnote" id="fn*" label="*">
<a class="footnote" href="#fn*_ref">
*
</a>
<p id="b1580-11">
Honorable Daniel Holcombe Thomas, U.S. District Judge for the Southern District of Alabama, sitting by designation.
</p>
</div></div> | [
"749 F.2d 1503"
]
| [
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": "http://bulk.resource.org/courts.gov/c/F2/749/749.F2d.1503.84-7281.html",
"author_id": null,
"opinion_text": "749 F.2d 1503\n Percy Leo DOBARD, Petitioner-Appellant,v.W.E. JOHNSON, Warden, Holman Correctional Institution,Respondent-Appellee.\n No. 84-7281.\n United States Court of Appeals,Eleventh Circuit.\n Jan. 8, 1985.Rehearing and Rehearing En Banc Denied Feb. 11, 1985.\n \n Ralph I. Knowles, Jr., Tuscaloosa, Ala., Barry Friedman, Davis, Polk & Wardwell, Washington, D.C., for petitioner-appellant.\n Edward Carnes, Asst. Atty. Gen., Montgomery, Ala., for respondent-appellee.\n Appeal from the United States District Court for the Northern District of Alabama.\n Before GODBOLD, Chief Judge, CLARK, Circuit Judge, and THOMAS*, District Judge.\n GODBOLD, Chief Judge:\n \n \n 1\n Under 28 U.S.C. Sec. 2241 (1982) a state prisoner may file a petition for habeas corpus in the federal judicial district in which he is in custody or in the district in which the court was held that convicted and sentenced him.1 The provision permitting filing in the district of conviction and sentence was added by amendment in 1966.2\n \n \n 2\n Petitioner is an Alabama death-sentenced prisoner who was convicted and sentenced to death for murdering a police officer. Because of pretrial publicity the venue for petitioner's trial was transferred from the state court in the county of indictment to the state court in an adjoining county, and petitioner was tried and convicted in the adjoining county. Some of the incidents of sentencing were, in the physical sense, done in one county, some in the other. The county of indictment is located in the federal Northern District of Alabama, the county of trial and conviction in the federal Southern District of Alabama. These facts raise two substantive questions: where could petitioner file a federal petition for habeas corpus under the provision of Sec. 2241(d) that permits filing in the federal district in which the prisoner was convicted and sentenced, and what could the court of filing do with the petition?\n \n \n 3\n Petitioner is in state custody in the federal Southern District of Alabama. He filed his federal habeas petition in the Northern District. The district judge in the Northern District, uncertain whether his court had jurisdiction and venue as the district of conviction and sentence, declined to decide whether his court had jurisdiction to entertain the merits of the petition and instead transferred the case to the Southern District, where unquestionably the case could be entertained based upon place of custody.\n \n \n 4\n Petitioner filed a notice of appeal, contending that the district court could not transfer the case without first determining whether it had jurisdiction to decide the merits. We hold that where substantial incidents of conviction and sentence are divided between two federal judicial districts, either district court is the court of conviction and sentence within the meaning of Sec. 2241(d) and has power to entertain the petition on its merits or transfer it.\n \n \n 5\n In his opinion accompanying the transfer order District Judge Acker of the Northern District described the unusual procedural circumstances of petitioner's case. The murder for which Dobard was convicted and sentenced to death occurred in Sumter County, located in the Northern District. Dobard was indicted in the Circuit Court of Sumter County, and numerous pretrial motions were filed and heard in that court. Because of pretrial publicity, the state circuit judge, ruling from the bench in Sumter County, transferred the trial of the case to the Circuit Court of Marengo County, located in the Southern District.3\n \n \n 6\n All files pertaining to the case were sent to the Circuit Court of Marengo County. Various pretrial motions were heard in Sumter County, but counsel have stipulated that after the transfer of the case all orders were entered by the Circuit Court of Marengo County. After the trial and conviction in Marengo County the sentencing hearing required by Alabama law to be held before the judge was heard in Sumter County and petitioner was there orally sentenced to death. The judge signed the sentencing order while in Marengo. Dobard's motion for a new trial was received by the circuit clerk in Sumter and then sent on to be filed in Marengo. The hearing on the new trial motion was conducted in Sumter.\n \n \n 7\n Under these peculiar circumstances the district judge was faced with the question whether the Northern District or the Southern District was the district where Dobard was convicted and sentenced within the meaning of Sec. 2241, or whether both districts might be treated as the district of conviction and sentence, or whether neither district could be.\n \n \n 8\n Judge Acker recognized the potential problem presented by these unusual facts and voiced his concerns. He held:\n \n \n 9\n While this case presents interesting questions concerning jurisdiction and venue, and tempts the Court to opine on its jurisdiction under this peculiar set of circumstances, no purpose would be served if this cause were allowed to proceed in this Court. Such a decision undoubtedly would be subjected to appellate review and the delay which would accompany that process. What both petitioner and respondent want and deserve is a speedy, federal hearing and decision on the merits. This Court finds that it has jurisdiction over this petition at least for the limited purpose of transfer and that the Southern District certainly has both jurisdiction and venue to hear the merits of the case. This Court will transfer this petition to the United States District Court for the Southern District of Alabama.\n \n \n 10\n The transfer order was entered. The case was assigned to Judge Cox of the Southern District. He entered an order noting his agreement with Judge Acker's view that the transfer order was not appealable. He stated his intention to proceed with adjudication of the habeas petition, and the petition is now being litigated in due course in the Southern District.\n \n \n 11\n We hold that this court has no jurisdiction to entertain an appeal from Judge Acker's transfer order. Although apparently no court has expressly ruled on whether transfer orders under Sec. 2241 are final, courts have fairly consistently held that transfer orders brought under other statutes are not generally final orders for the purpose of appeal. In Stelly v. Employers National Insurance Co., 431 F.2d 1251, 1253-54 (5th Cir.1970), cert. denied sub nom. Stelly v. Bauer Dredging Co., 401 U.S. 908, 91 S.Ct. 866, 27 L.Ed.2d 806 (1971), we held that a case transferred under 28 U.S.C. Sec. 1404(a) (1982)4 is interlocutory. See also Matter of Macon Uplands Venture, 624 F.2d 26, 26-27 (5th Cir.1980). The Third Circuit has recently ruled that these forum non conveniens orders do not fall within the exception articulated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).5 In Coastal Steel Corp. v. Tilghman Wheelabrator Ltd., 709 F.2d 190, 195 (3d Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 349, 78 L.Ed.2d 315 (1983), the Third Circuit held that transfer orders are not easily separable from the merits of the litigation and do not meet the requirement that the order be effectively unreviewable on appeal. We agree.\n \n \n 12\n Moreover, we recently held that transfer orders under 28 U.S.C. Sec. 1631 (1982)6 are also not final orders and do not fall within the collateral order doctrine of Cohen. See Middlebrooks v. Smith, 735 F.2d 431, 433 (11th Cir.1984). Relying upon our reasoning in Stelly, supra, we held that cases transferred for lack of jurisdiction under Sec. 1631 are as nonappealable and interlocutory as those transferred under Sec. 1404 for lack of venue.7\n \n \n 13\n If, therefore, in the instant case the district court had decided that jurisdiction under Sec. 2241(d) was not present in the Northern District, the court could have transferred the case to the Southern District under Sec. 1631. That transfer order would not have been appealable. Moreover, even if the district court had determined that jurisdiction and venue were present in the Northern District and had transferred the case pursuant to Sec. 2241(d), the court's order would still not be a final order reviewable by this court. Such a transfer is one between two courts with concurrent jurisdiction and is essentially a forum non conveniens determination akin to that made pursuant to 28 U.S.C. Sec. 1404(a) (1982). See McClure v. Hopper, 577 F.2d 938, 940 (5th Cir.1978), cert. denied sub nom. McClure v. Balkcom, 439 U.S. 1077, 99 S.Ct. 854, 59 L.Ed.2d 45 (1979); Dillworth v. Barker, 465 F.2d 1338, 1341 (5th Cir.1972); Reed v. Henderson, 463 F.2d 485, 487 (5th Cir.1972). Transfer orders based on forum non conveniens determinations, whether brought pursuant to Sec. 1404 or Sec. 2241, are nonreviewable interlocutory orders.\n \n \n 14\n Petitioner seeks, however, to identify finality through another approach. He contends that the refusal of the district court to decide whether it had jurisdiction to determine the merits is within the doctrine of pragmatic or practical finality. See, e.g., Gillespie v. U.S. Steel Corp., 379 U.S. 148, 152, 85 S.Ct. 308, 311, 13 L.Ed.2d 199, 203 (1964). This effort will not work. Central to this contention is petitioner's argument that the refusal to decide the jurisdiction issue deprived him of the forum of his choice. The contention assumes that petitioner was entitled to a ruling on whether the Northern District was a forum that he could choose. In our holding, infra, we agree that the Northern District was one of the available forums of choice. The district court, however, eschewed reaching the unique issue of plenary jurisdiction raised by the facts and instead exercised a more limited power to transfer the case. The court recognized the quicksand into which it would fall if it decided the issue of plenary jurisdiction. No matter how it ruled, the jurisdiction issue would remain alive in any appeal. If it found that it had jurisdiction, retained the case and denied the writ, petitioner could urge on appeal that the district court had no jurisdiction.8 Counsel for petitioner stated at oral argument that if jurisdiction were found to exist in the Northern District, they could not and would not urge on appeal that the district court lacked jurisdiction. We have confidence in their statement, but jurisdiction cannot be conferred by waiver or non-assertion by counsel, and neither waiver nor non-assertion would affect the duty of this court to search the record for jurisdiction. Nor could counsel's non-assertion bind successor counsel, if there were such.\n \n \n 15\n We hold that while the district court had plenary power over the case (a power it did not decide that it had), it was not required to enter an order defining the outer boundaries of this jurisdiction when it had the power, within those boundaries, to enter a transfer order.\n \n \n 16\n Furthermore, an order to transfer pursuant to Sec. 2241(d) made without first deciding whether or not the district court has jurisdiction to hear the merits of the case is a nonreviewable interlocutory order. There is no justification for distinguishing between transfer orders under Secs. 2241(d), 1404, and 1631 where the jurisdictional question has been answered, and transfer orders under Sec. 2241(d) where the issue is not reached. In both situations the transfer orders are pursuant to statute. The question becomes, therefore, not whether the transfer orders are authorized by statute but whether they are justified by the circumstances. And it is that question, the wisdom of the district court's decision to transfer a case under Secs. 1631, 1404, or 2241(d), that we consistently treat as nonreviewable and interlocutory. \"It is hard to see how any order could be less 'final' than one which merely transfers an action for trial from one district to another in the federal judicial system ....\" Stelly, supra, at 1253.\n \n \n 17\n We conclude that we have no appellate jurisdiction, and the appeal must be dismissed.\n \n \n 18\n Petitioner's effort to obtain review of the district court's refusal to rule on its plenary jurisdiction fits better within the concept of mandamus than of appeal, and we treat the notice of appeal and supporting documents as a petition for mandamus. Dobard complains that the transfer order, itself not appealable, was entered by a court that lacked the power to enter the order unless and until it determined that it had plenary jurisdiction, which it declined to do; thus the court arguably acted without power--beyond its jurisdiction--which is a traditional basis for mandamus. But, treating the matter before us as a petition for mandamus, the petition must fail.\n \n \n 19\n Section 2241(d) does not address the situation in which substantial incidents of conviction and sentence occur in each of two federal districts. Congress hardly envisioned a case like this one when it amended Sec. 2241 in 1966 to add the alternative forum consisting of the district within which the court of conviction and sentence was held. Division of incidents of sentence and conviction between two courts, each lying in a separate federal district, obviously is not the usual situation. Yet changes of venue, or other transfers made pursuant to state law, do occur, particularly in cases involving excessive trial publicity. Inevitably some transfers will be to courts located in other federal judicial districts. Indeed, the concept of undue publicity will often necessitate transfer to a court a considerable distance away and beyond the reach of the publicity.\n \n \n 20\n We have no hesitation in saying that if Congress had thought about the matter it would have rejected out of hand any notion that where incidents of conviction and sentence are divided between two federal districts, neither district would be an available forum as the place of conviction and sentence. Likewise, we are equally certain that Congress would not have had in mind that a \"divided incident\" case would fall into the kind of jurisdictional snarl that has arisen in this case because of uncertainty of the status of the respective districts as the situs (or situses) of conviction and sentence. Nor would Congress have intended that there be preliminary litigation to determine which district has the most contacts with the case. All of these possibilities are antithetical to the concept of habeas as a plain, speedy and efficient remedy, enjoying priority in both trial and appellate courts. 28 U.S.C. Secs. 2243, 2248; App. One, p (a)(3),Eleventh Circuit Rules. See also Lehman v. Lycoming County Children's Services Agency, 458 U.S. 502, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982); Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973); Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968). In this case it is petitioner who insists on attempting to proceed in the district of his choice (though, as pointed out above, the insistence might be an empty one, because if he succeeded the court would have the power, subject to review for abuse of discretion, to transfer the case to the Southern District. See n. 8, supra ). In the next case, when a habeas petitioner has been successful, the state might well contend that the case was filed and decided in the wrong forum. The Great Writ need not be burdened with these uncertainties.\n \n \n 21\n The possibilities we have described and rejected are contrary to the congressional intention to create an additional available forum. Congress intended an additional forum (or forums), not a Gordian Knot over availability of the new type of forum. Congress was addressing solutions, not creating problems. Having rejected other possible constructions, we hold that where substantial incidents of conviction and sentence have occurred in each of two federal judicial districts, the alternative forum provision of Sec. 2241(d), though phrased in the singular, would have been intended by Congress to be treated as in the plural. See 1 U.S.C. Sec. 1 (1982) (\"In determining the meaning of any Act or resolution of Congress, words importing the singular number may extend and be applied to several persons or things ....\"); see also U.S. v. Mikelberg, 517 F.2d 246 (5th Cir.1975) (applying statute to Truth in Lending Act), cert. denied, 424 U.S. 909, 96 S.Ct. 1104, 47 L.Ed.2d 313 (1976); accord Toy Manufacturers of America, Inc. v. Consumer Product Safety Commission, 630 F.2d 70 (2d Cir.1980). Each of the two courts will, therefore, have jurisdiction along with the concurrent jurisdiction of the district of custody. The district court, having such jurisdiction, may entertain the petition on the merits or may enter a transfer order as provided by Sec. 2241. Therefore, although the district court in this case did not address the jurisdiction issue it acted within its power when it entered the transfer order, because it had plenary jurisdiction.9\n \n \n 22\n The dissenting opinion does not correctly state what this court has decided when it says that this decision \"gives the district court unbounded discretion to transfer 2241 cases in the same manner they transfer Section 1404(a) cases.\" Rather what the court decides--and all it decides--is that where substantial incidents of conviction and sentence are divided between two federal district courts, both of such courts have jurisdiction of a habeas corpus petition (along with the concurrent jurisdiction of the district of custody).\n \n \n 23\n The approach of the dissenting opinion would simply proliferate the Gordian Knot. Judge Clark suggests that we make an appellate finding that Northern District of Alabama is the \"place of conviction and sentence,\" an issue not reached by the district court. That finding would cut the Knot for this case. In the next case, however, such a finding would have to be made initially at the district court level, creating in that case the intractable difficulty of having a preliminary trial, followed by possible appeal or mandamus, on the issue of whether the petition has been filed in the correct court.\n \n \n 24\n Petitioner's effort to appeal the order of the district court is DISMISSED. Treating petitioner's effort as a petition for mandamus, the petition is DENIED.\n \n CLARK, Circuit Judge, dissenting:\n \n 25\n I respectfully dissent. Like the majority I would treat the notice of appeal as a petition for writ of mandamus. Further, I would reverse and remand the case to the Northern District of Alabama for that court to rule upon whether it has jurisdiction of this case. Instead of deciding whether it had jurisdiction, the district court merely transferred the case to the Southern District of Alabama.\n \n \n 26\n The majority goes astray in deciding this case on the principles that have been enunciated in interpreting 28 U.S.C. Sec. 1404(a) which provides that a district court may transfer any civil action to any other district where it might have been brought for the convenience of the parties and witnesses, and in the interest of justice. The venue provision controlling this case is under 28 U.S.C. Sec. 2241(d) which gives the petitionerthe option of seeking habeas corpus either in the district where he is confined or the district where the sentencing court is located. 28 U.S.C. Sec. 2241(d). In enacting these amendments, Congress explicitly recognized the substantial advantages of having these cases resolved in the court which originally imposed the confinement or in the court located nearest the site of the underlying controversy. (emphasis added)\n \n \n 27\n Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 497, 93 S.Ct. 1123, 1130, 35 L.Ed.2d 443 (footnotes omitted). The statute, unlike 28 U.S.C. Sec. 1404(a), has the following direction to the district courts:\n \n \n 28\n The district court for the district wherein such an application is filed in the exercise of its discretion and in furtherance of justice may transfer the application to the other district court for hearing and determination.\n \n \n 29\n 28 U.S.C. Sec. 2241(d). The district court in this case did not exercise its discretion, did not consider what was in furtherance of justice and denied petitioner his option under the statute to file the petition in the Northern District of Alabama. This was done without any explanation, exercise of discretion, or stating reasons for transferring it other than some misplaced fear that it might not have jurisdiction of the case.\n \n \n 30\n The report of the Senate accompanying Senate Bill No. 3576 which became subsection (d) of Section 2241 states the following:\n \n \n 31\n The purpose of the proposed legislation is to allow a person in custody under a judgment and sentence by a state court to petition for a writ of habeas corpus in the federal district court of the district within which the state court was held that convicted and sentenced him.\n \n \n 32\n S.Rep. No. 1502, 89th Cong., 2d Sess. (1966), reprinted in 1966 U.S.Code Cong. & Ad.News 2968, 2969.\n \n \n 33\n Dobard was charged with committing a crime in Sumter County and was indicted in that county. He was sentenced in that county, all of which occurred in the Northern District of Alabama. The state court transferred trial of the case to adjoining Marengo County where the jury verdict of guilty was returned. Marengo County is in the Southern District of Alabama. Clearly the Northern District of Alabama has jurisdiction of a petition for writ of habeas corpus under these circumstances and under the statute. Just as clearly, Dobard is given the option by the statute of filing his habeas petition in the Northern District of Alabama. The district court erred in not considering whether it had jurisdiction. I would return the case to that court with directions that it consider whether there were any reasons in furtherance of justice why the case should not be retained in the Northern District of Alabama.\n \n \n 34\n I think the majority errs in its treatment of this vital right of a prisoner to have his case heard in the district nearest where the crime occurred and thus where normally the witnesses would be. Habeas corpus, although technically a civil proceeding is for all practical purposes a criminal matter. Therefore, this, although a civil case, is not properly compared to the broader discretion permitted to a district court to transfer a Section 1404(a) case for the convenience of the parties. Here the district court's discretion is bounded by the requirement that the prisoner has the first election and the court must have sound reasons for transferring the venue of a Section 2254 case. Because, as the majority points out, the district court's decision is not an immediate appealable order1 and because a reviewing court will be reluctant to overturn an otherwise error free habeas decision solely on the grounds of improper transfer of venue, the district court has a particularly heavy burden to consider these motions with care. See generally 2 Wright, Federal Practice and Procedure Sec. 347, p. 282-83. I am greatly concerned that the majority opinion, the first apparently in the country to consider this problem, gives the district court unbounded discretion to transfer 2241 cases in the same manner they transfer Section 1404(a) cases. The majority goes beyond the intent of Congress. For these reasons I dissent.\n \n \n \n *\n Honorable Daniel Holcombe Thomas, U.S. District Judge for the Southern District of Alabama, sitting by designation\n \n \n 1\n Sec. 2241(d):\n (d) Where an application for a writ of habeas corpus is made by a person in custody under the judgment and sentence of a State court of a State which contains two or more Federal judicial districts, the application may be filed in the district court for the district wherein such person is in custody or in the district court for the district within which the State court was held which convicted and sentenced him and each of such district courts shall have concurrent jurisdiction to entertain the application. The district court for the district wherein such an application is filed in the exercise of its discretion and in furtherance of justice may transfer the application to the other district court for hearing and determination.\n \n \n 2\n P.L. 89-590, 80 Stat. 811\n \n \n 3\n The transfer was from one court to another. In Alabama there is a circuit court for each county. Code of Alabama 1975, Sec. 12-11-1. The circuit courts of the counties are divided into judicial circuits. Id. Sec. 12-11-2. Unless otherwise provided by law, each circuit court meets at the county courthouse of its county. Id. Sec. 12-11-3. Sumter County and Marengo County (and a third county) are in the Seventeenth Judicial Circuit, id. Sec. 12-11-2, and the circuit has one judge. Id. Sec. 12-17-20\n \n \n 4\n 28 U.S.C. Sec. 1404 pertains to changes in venue. Paragraph (a) provides that: \"[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.\" Id\n \n \n 5\n Cohen holds that some orders are reviewable if they \"fall in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.\" Cohen, 337 U.S. at 546, 69 S.Ct. at 1225-26, 93 L.Ed. at 1536\n \n \n 6\n Sec. 1631 states that:\n [w]henever a civil action is filed in a court ... and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed ..., and the action or appeal shall proceed as if it had been filed in ... the court to which it is transferred on the date upon which it was actually filed in ... the court from which it is transferred.\n \n \n 7\n See Middlebrooks, 735 F.2d at 433. We stated that:\n [w]e find the reasoning of Stelly to be persuasive for transfer orders under Sec. 1631 where the transfer is from one district court to another .... The petitioner here is not denied his day in court, but is simply relegated to pursuing his claim in another district court. If his complaint about the transfer is that the court below improperly characterized his claim as falling under 28 U.S.C. Sec. 2255, rather than Secs. 2241 and 2243 as he alleged, he will be free to raise that point in the transferee court and pursue it on appeal after final disposition. Likewise, the petitioner still has means available to properly challenge the transfer order, such as moving the transferee court to retransfer or raising the matter on appeal after final judgment.\n Id.\n \n \n 8\n Moreover, even if the district court had decided the jurisdiction issue and had determined that jurisdiction did lie in the Northern District, in the furtherance of justice the court would have the power, subject to review for abuse of discretion, to transfer the case to the Southern District as a court of concurrent jurisdiction\n \n \n 9\n While we do not rest our decision on this alternative ground, we note that at least one court has held that a district court without jurisdiction under Sec. 2241(d) may transfer the petition to the appropriate court pursuant to Sec. 2241(d). See Ayala v. Tubman, 366 F.Supp. 1268, 1269 (E.D.N.Y.1973)\n \n \n 1\n However, we do have jurisdiction to return a petition for a writ of mandamus to correct an abuse of discretion. See Roofing & Sheet Metal Services, Inc. v. La Quinta Motor Inns, Inc., 689 F.2d 982, 987 n. 9 (11th Cir.1982)\n \n \n ",
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"opinion_text": "\nGODBOLD, Chief Judge:\nUnder 28 U.S.C. § 2241 (1982) a state prisoner may file a petition for habeas corpus in the federal judicial district in which he is in custody or in the district in which the court was held that convicted and sentenced him.1 The provision permitting fil*1505ing in the district of conviction and sentence was added by amendment in 1966.2\nPetitioner is an Alabama death-sentenced prisoner who was convicted and sentenced to death for murdering a police officer. Because of pretrial publicity the venue for petitioner’s trial was transferred from the state court in the county of indictment to the state court in an adjoining county, and petitioner was tried and convicted in the adjoining county. Some of the incidents of sentencing were, in the physical sense, done in one county, some in the other. The county of indictment is located in the federal Northern District of Alabama, the county of trial and conviction in the federal Southern District of Alabama. These facts raise two substantive questions: where could petitioner file a federal petition for habeas corpus under the provision of Sec. 2241(d) that permits filing in the federal district in which the prisoner was convicted and sentenced, and what could the court of filing do with the petition?\nPetitioner is in state custody in the federal Southern District of Alabama. He filed his federal habeas petition in the Northern District. The district judge in the Northern District, uncertain whether his court had jurisdiction and venue as the district of conviction and sentence, declined to decide whether his court had jurisdiction to entertain the merits of the petition and instead transferred the case to the Southern District, where unquestionably the case could be entertained based upon place of custody.\nPetitioner filed a notice of appeal, contending that the district court could not transfer the case without first determining whether it had jurisdiction to decide the merits. We hold that where substantial incidents of conviction and sentence are divided between two federal judicial districts, either district court is the court of conviction and sentence within the meaning of Sec. 2241(d) and has power to entertain the petition on its merits or transfer it.\nIn his opinion accompanying the transfer order District Judge Acker of the Northern District described the unusual procedural circumstances of petitioner’s case. The murder for which Dobard was convicted and sentenced to death occurred in Sumter County, located in the Northern District. Dobard was indicted in the Circuit Court of Sumter County, and numerous pretrial motions were filed and heard in that court. Because of pretrial publicity, the state circuit judge, ruling from the bench in Sumter County, transferred the trial of the case to the Circuit Court of Marengo County, located in the Southern District.3\nAll files pertaining to the case were sent to the Circuit Court of Marengo County. Various pretrial motions were heard in Sumter County, but counsel have stipulated that after the transfer of the case all orders were entered by the Circuit Court of Marengo County. After the trial and conviction in Marengo County the sentencing hearing required by Alabama law to be held before the judge was heard in Sumter County and petitioner was there orally sentenced to death. The judge signed the sentencing order while in Marengo. Do-bard’s motion for a new trial was received by the circuit clerk in Sumter and then sent on to be filed in Marengo. The hearing on the new trial motion was conducted in Sumter.\nUnder these peculiar circumstances the district judge was faced with the question whether the Northern District or the Southern District was the district where Dobard was convicted and sentenced within *1506the meaning of Sec. 2241, or whether both districts might be treated as the district of conviction and sentence, or whether neither district could be.\nJudge Acker recognized the potential problem presented by these unusual facts and voiced his concerns. He held:\nWhile this case presents interesting questions concerning jurisdiction and venue, and tempts the Court to opine on its jurisdiction under this peculiar set of circumstances, no purpose would be served if this cause were allowed to proceed in this Court. Such a decision undoubtedly would be subjected to appellate review and the delay which would accompany that process. What both petitioner and respondent want and deserve is a speedy, federal hearing and decision on the merits. This Court finds that it has jurisdiction over this petition at least for the limited purpose of transfer and that the Southern District certainly has both jurisdiction and venue to hear the merits of the case. This Court will transfer this petition to the United States District Court for the Southern District of Alabama.\nThe transfer order was entered. The case was assigned to Judge Cox of the Southern District. He entered an order noting his agreement with Judge Acker’s view that the transfer order was not appealable. He stated his intention to proceed with adjudication of the habeas petition, and the petition is now being litigated in due course in the Southern District.\nWe hold that this court has no jurisdiction to entertain an appeal from Judge Acker’s transfer order. Although apparently no court has expressly ruled on whether transfer orders under Sec. 2241 are final, courts have fairly consistently held that transfer orders brought under other statutes are not generally final orders for the purpose of appeal. In Stelly v. Employers National Insurance Co., 431 F.2d 1251, 1253-54 (5th Cir.1970), cert. denied sub nom. Stelly v. Bauer Dredging Co., 401 U.S. 908, 91 S.Ct. 866, 27 L.Ed.2d 806 (1971), we held that a case transferred under 28 U.S.C. Sec. 1404(a) (1982)4 is interlocutory. See also Matter of Macon Uplands Venture, 624 F.2d 26, 26-27 (5th Cir.1980). The Third Circuit has recently ruled that these forum non conveniens orders do not fall within the exception articulated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).5 In Coastal Steel Corp. v. Tilghman Wheelabrator Ltd., 709 F.2d 190, 195 (3d Cir.), cert. denied, — U.S. —, 104 S.Ct. 349, 78 L.Ed.2d 315 (1983), the Third Circuit held that transfer orders are not easily separable from the merits of the litigation and do not meet the requirement that the order be effectively unreviewable on appeal. We agree.\nMoreover, we recently held that transfer orders under 28 U.S.C. § 1631 (1982)6 are also not final orders and do not fall within the collateral order doctrine of Cohen. See Middlebrooks v. Smith, 735 F.2d 431, 433 (11th Cir.1984). Relying upon our reasoning in Stelly, supra, we held that cases transferred for lack of jurisdiction under Sec. 1631 are as nonappealable and inter*1507locutory as those transferred under Sec. 1404 for lack of venue.7\nIf, therefore, in the instant case the district court had decided that jurisdiction under Sec. 2241(d) was not present in the Northern District, the court could have transferred the case to the Southern District under Sec. 1631. That transfer order would not have been appealable. Moreover, even if the district court had determined that jurisdiction and venue were present in the Northern District and had transferred the case pursuant to Sec. 2241(d), the court’s order would still not be a final order reviewable by this court. Such a transfer is one between two courts with concurrent jurisdiction and is essentially a forum non conveniens determination akin to that made pursuant to 28 U.S.C. § 1404(a) (1982). See McClure v. Hopper, 577 F.2d 938, 940 (5th Cir.1978), cert. denied sub nom. McClure v. Balkcom, 439 U.S. 1077, 99 S.Ct. 854, 59 L.Ed.2d 45 (1979); Dillworth v. Barker, 465 F.2d 1338, 1341 (5th Cir.1972); Reed v. Henderson, 463 F.2d 485, 487 (5th Cir.1972). Transfer orders based on forum non conveniens determinations, whether brought pursuant to Sec. 1404 or Sec. 2241, are nonreviewable interlocutory orders.\nPetitioner seeks, however, to identify finality through another approach. He contends that the refusal of the district court to decide whether it had jurisdiction to determine the merits is within the doctrine of pragmatic or practical finality. See, e.g., Gillespie v. U.S. Steel Corp., 379 U.S. 148, 152, 85 S.Ct. 308, 311, 13 L.Ed.2d 199, 203 (1964). This effort will not work. Central to this contention is petitioner’s argument that the refusal to decide the jurisdiction issue deprived him of the forum of his choice. The contention assumes that petitioner was entitled to a ruling on whether the Northern District was a forum that he could choose. In our holding, infra, we agree that the Northern District was one of the available forums of choice. The district court, however, eschewed reaching the unique issue of plenary jurisdiction raised by the facts and instead exercised a more limited power to transfer the case. The court recognized the quicksand into which it would fall if it decided the issue of plenary jurisdiction. No matter how it ruled, the jurisdiction issue would remain alive in any appeal. If it found that it had jurisdiction, retained the case and denied the writ, petitioner could urge on appeal that the district court had no jurisdiction.8 Counsel for petitioner stated at oral argument that if jurisdiction were found to exist in the Northern District, they could not and would not urge on appeal that the district court lacked jurisdiction. We have confidence in their statement, but jurisdiction cannot be conferred by waiver or non-assertion by counsel, and neither waiver nor non-assertion would affect the duty of this court to search the record for jurisdiction. Nor could counsel’s non-assertion bind successor counsel, if there were such.\nWe hold that while the district court had plenary power over the case (a power it did not decide that it had), it was not required to enter an order defining the outer boundaries of this jurisdiction when it had the power, within those boundaries, to enter a transfer order.\n*1508Furthermore, an order to transfer pursuant to Sec. 2241(d) made without first deciding whether or not the district court has jurisdiction to hear the merits of the case is a nonreviewable interlocutory order. There is no justification for distinguishing between transfer orders under Sees. 2241(d), 1404, and 1631 where the jurisdictional question has been answered, and transfer orders under Sec. 2241(d) where the issue is not reached. In both situations the transfer orders are pursuant to statute. The question becomes, therefore, not whether the transfer orders are authorized by statute but whether they are justified by the circumstances. And it is that question, the wisdom of the district court’s decision to transfer a case under Secs. 1631, 1404, or 2241(d), that we consistently treat as nonreviewable and interlocutory. “It is hard to see how any order could be less ‘final’ than one which merely transfers an action for trial from one district to another in the federal judicial system....” Stelly, supra, at 1253.\nWe conclude that we have no appellate jurisdiction, and the appeal must be dismissed.\nPetitioner’s effort to obtain review of the district court’s refusal to rule on its plenary jurisdiction fits better within the concept of mandamus than of appeal, and we treat the notice of appeal and supporting documents as a petition for mandamus. Dobard complains that the transfer order, itself not appealable, was entered by a court that lacked the power to enter the order unless and until it determined that it had plenary jurisdiction, which it declined to do; thus the court arguably acted without power — beyond its jurisdiction — which is a traditional basis for mandamus. But, treating the matter before us as a petition for mandamus, the petition must fail.\nSection 2241(d) does not address the situation in which substantial incidents of conviction and sentence occur in each of two federal districts. Congress hardly envisioned a case like this one when it amended Sec. 2241 in 1966 to add the alternative forum consisting of the district within which the court of conviction and sentence was held. Division of incidents of sentence and conviction between two courts, each lying in a separate federal district, obviously is not the usual situation. Yet changes of venue, or other transfers made pursuant to state law, do occur, particularly in cases involving excessive trial publicity. Inevitably some transfers will be to courts located in other federal judicial districts. Indeed, the concept of undue publicity will often necessitate transfer to a court a considerable distance away and beyond the reach of the publicity.\nWe have no hesitation in saying that if Congress had thought about the matter it would have rejected out of hand any notion that where incidents of conviction and sentence are divided between two federal districts, neither district would be an available forum as the place of conviction and sentence. Likewise, we are equally certain that Congress would not have had in mind that a “divided incident” case would fall into the kind of jurisdictional snarl that has arisen in this case because of uncertainty of the status of the respective districts as the situs (or situses) of conviction ánd sentence. Nor would Congress have intended that there be preliminary litigation to determine which district has the most contacts with the case. All of these possibilities are antithetical to the concept of habeas as a plain, speedy and efficient remedy, enjoying priority in both trial and appellate courts. 28 U.S.C. §§ 2243, 2248; App. One, ¶ (a)(3), Eleventh Circuit Rules. See also Lehman v. Lycoming County Children’s Services Agency, 458 U.S. 502, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982); Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973); Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968). In this case it is petitioner who insists on attempting to proceed in the district of his choice (though, as pointed out above, the insistence might be an empty one, because if he succeeded the court would have the power, subject to review for abuse of discretion, to transfer the case to the Southern District. See n. 8, supra). In the next case, when a habeas petitioner has been successful, the state might well contend that the case was filed *1509and decided in the wrong forum. The Great Writ need not be burdened with these uncertainties.\nThe possibilities we have described and rejected are contrary to the congressional intention to create an additional available forum. Congress intended an additional forum (or forums), not a Gordian Knot over availability of the new type of forum. Congress was addressing solutions, not creating problems. Having rejected other possible constructions, we hold that where substantial incidents of conviction and sentence have occurred in each of two federal judicial districts, the alternative forum provision of Sec. 2241(d), though phrased in the singular, would have been intended by Congress to be treated as in the plural. See 1 U.S.C. § 1 (1982) (“In determining the meaning of any Act or resolution of Congress, words importing the singular number may extend and be applied to several persons or things....”); see also U.S. v. Mikelberg, 517 F.2d 246 (5th Cir.1975) (applying statute to Truth in Lending Act), cert. denied, 424 U.S. 909, 96 S.Ct. 1104, 47 L.Ed.2d 313 (1976); accord Toy Manufacturers of America, Inc. v. Consumer Product Safety Commission, 630 F.2d 70 (2d Cir.1980). Each of the two courts will, therefore, have jurisdiction along with the concurrent jurisdiction of the district of custody. The district court, having such jurisdiction, may entertain the petition on the merits or may enter a transfer order as provided by Sec. 2241. Therefore, although the district court in this case did not address the jurisdiction issue it acted within its power when it entered the transfer order, because it had plenary jurisdiction.9\nThe dissenting opinion does not correctly state what this court has decided when it says that this decision “gives the district court unbounded discretion to transfer 2241 cases in the same manner they transfer Section 1404(a) cases.” Rather what the court decides — and all it decides — is that where substantial incidents of conviction and sentence are divided between two federal district courts, both of such courts have jurisdiction of a habeas corpus petition (along with the concurrent jurisdiction of the district of custody).\nThe approach of the dissenting opinion would simply proliferate the Gordian Knot. Judge Clark suggests that we make an appellate finding that Northern District of Alabama is the “place of conviction and sentence,” an issue not reached by the district court. That finding would cut the Knot for this case. In the next case, however, such a finding would have to be made initially at the district court level, creating in that case the intractable difficulty of having a preliminary trial, followed by possible appeal or mandamus, on the issue of whether the petition has been filed in the correct court.\nPetitioner’s effort to appeal the order of the district court is DISMISSED. Treating petitioner’s effort as a petition for mandamus, the petition is DENIED.\n\n. Sec. 2241(d):\n(d) Where an application for a writ of habe-as corpus is made by a person in custody under the judgment and sentence of a State court of a State which contains two or more Federal judicial districts, the application may be filed in the district court for the district wherein such person is in custody or in the district court for the district within which the State court was held which convicted and sentenced him and each of such district courts shall have concurrent jurisdiction to *1505entertain the application. The district court for the district wherein such an application is filed in the exercise of its discretion and in furtherance of justice may transfer the application to the other district court for hearing and determination.\n\n\n. P.L. 89-590, 80 Stat. 811.\n\n\n. The transfer was from one court to another. In Alabama there is a circuit court for each county. Code of Alabama 1975, § 12-11-1. The circuit courts of the counties are divided into judicial circuits. Id. Sec. 12-11-2. Unless otherwise provided by law, each circuit court meets at the county courthouse of its county. Id. Sec. 12-11-3. Sumter County and Marengo County (and a third county) are in the Seventeenth Judicial Circuit, id. Sec. 12-11-2, and the circuit has one judge. Id. Sec. 12-17-20.\n\n\n. 28 U.S.C. § 1404 pertains to changes in venue. Paragraph (a) provides that: \"[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.\" Id.\n\n\n. Cohen holds that some orders are reviewable if they \"fall in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Cohen, 337 U.S. at 546, 69 S.Ct. at 1225-26, 93 L.Ed. at 1536.\n\n\n. Sec. 1631 states that:\n[w]henever a civil action is filed in a court ... and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed .... and the action or appeal shall proceed as if it had been filed in ... the court to which it is transferred on the date upon which it was actually filed in ... the court from which it is transferred.\n\n\n. See Middlebrooks, 735 F.2d at 433. We stated that:\n[w]e find the reasoning of Stelly to be persuasive for transfer orders under Sec. 1631 where the transfer is from one district court to another .... The petitioner here is not denied his day in court, but is simply relegated to pursuing his claim in another district court. If his complaint about the transfer is that the court below improperly characterized his claim as falling under 28 U.S.C. Sec. 2255, rather than Secs. 2241 and 2243 as he alleged, he will be free to raise that point in the transferee court and pursue it on appeal after final disposition. Likewise, the petitioner still has means available to properly challenge the transfer order, such as moving the transferee court to retransfer or raising the matter on appeal after final judgment.\n\nId.\n\n\n\n. Moreover, even if the district court had decided the jurisdiction issue and had determined that jurisdiction did lie in the Northern District, in the furtherance of justice the court would have the power, subject to review for abuse of discretion, to transfer the case to the Southern District as a court of concurrent jurisdiction.\n\n\n. While we do not rest our decision on this alternative ground, we note that at least one court has held that a district court without jurisdiction under Sec. 2241(d) may transfer the petition to the appropriate court pursuant to Sec. 2241(d). See Ayala v. Tubman, 366 F.Supp. 1268, 1269 (E.D.N.Y.1973).\n\n",
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"opinion_text": "\nCLARK, Circuit Judge,\ndissenting:\nI respectfully dissent. Like the majority I would treat the notice of appeal as a petition for writ of mandamus. Further, I would reverse and remand the case to the Northern District of Alabama for that court to rule upon whether it has jurisdiction of this case. Instead of deciding whether it had jurisdiction, the district court merely transferred the case to the Southern District of Alabama.\nThe majority goes astray in deciding this case on the principles that have been enunciated in interpreting 28 U.S.C. § 1404(a) which provides that a district court may transfer any civil action to any other district where it might have been brought for the convenience of the parties and witnesses, and in the interest of justice. The venue provision controlling this case is under 28 U.S.C. § 2241(d) which gives the petitioner\n*1510the option of seeking habeas corpus either in the district where he is confined or the district where the sentencing court is located. 28 U.S.C. § 2241(d). In enacting these amendments, Congress explicitly recognized the substantial advantages of having these cases resolved in the court which originally imposed the confinement or in the court located nearest the site of the underlying controversy. (emphasis added)\nBraden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 497, 93 S.Ct. 1123, 1130, 35 L.Ed.2d 443 (footnotes omitted). The statute, unlike 28 U.S.C. § 1404(a), has the following direction to the district courts:\nThe district court for the district wherein such an application is filed in the exercise of its discretion and in furtherance of justice may transfer the application to the other district court for hearing and determination.\n28 U.S.C. § 2241(d). The district court in this case did not exercise its discretion, did not consider what was in furtherance of justice and denied petitioner his option under the statute to file the petition in the Northern District of Alabama. This was done without any explanation, exercise of discretion, or stating reasons for transferring it other than some misplaced fear that it might not have jurisdiction of the case.\nThe report of the Senate accompanying Senate Bill No. 3576 which became subsection (d) of Section 2241 states the following:\nThe purpose of the proposed legislation is to allow a person in custody under a judgment and sentence by a state court to petition for a writ of habeas corpus in the federal district court of the district within which the state court was held that convicted and sentenced him.\nS.Rep. No. 1502, 89th Cong., 2d Sess. (1966), reprinted in 1966 U.S.Code Cong. & Ad.News 2968, 2969.\nDobard was charged with committing a crime in Sumter County and was indicted in that county. He was sentenced in that county, all of which occurred in the Northern District of Alabama. The state court transferred trial of the case to adjoining Marengo County where the jury verdict of guilty was returned. Marengo County is in the Southern District of Alabama. Clearly the Northern District of Alabama has jurisdiction of a petition for writ of habeas corpus under these circumstances and under the statute. Just as clearly, Dobard is given the option by the statute of filing his habeas petition in the Northern District of Alabama. The district court erred in not considering whether it had jurisdiction. I would return the case to that court with directions that it consider whether there were any reasons in furtherance of justice why the case should not be retained in the Northern District of Alabama.\nI think the majority errs in its treatment of this vital right of a prisoner to have his case heard in the district nearest where the crime occurred and thus where normally the witnesses would be. Habeas corpus, although technically a civil proceeding is for all practical purposes a criminal matter. Therefore, this, although a civil case, is not properly compared to the broader discretion permitted to a district court to transfer a Section 1404(a) case for the convenience of the parties. Here the district court’s discretion is bounded by the requirement that the prisoner has the first election and the court must have sound reasons for transferring the venue of a Section 2254 case. Because, as the majority points out, the district court’s decision is not an immediate appealable order1 and because a reviewing court will be reluctant to overturn an otherwise error free habeas decision solely on the grounds of improper transfer of venue, the district court has a particularly heavy burden to consider these motions with care. See generally 2 Wright, Federal Practice and Procedure § 347, p. 282-83. I am greatly concerned that the majority opinion, the first apparently in the country to consider this problem, gives the dis*1511trict court unbounded discretion to transfer 2241 cases in the same manner they transfer Section 1404(a) cases. The majority goes beyond the intent of Congress. For these reasons I dissent.\n\n. However, we do have jurisdiction to return a petition for a writ of mandamus to correct an abuse of discretion. See Roofing & Sheet Metal Services, Inc. v. La Quinta Motor Inns, Inc., 689 F.2d 982, 987 n. 9 (11th Cir.1982).\n\n",
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| Eleventh Circuit | Court of Appeals for the Eleventh Circuit | F | USA, Federal |
2,608,444 | Dimond and Rabinowitz, Jj., and Sanders, Superior Court Judge | 1967-10-23 | false | city-of-fairbanks-v-nesbett | Nesbett | City of Fairbanks v. Nesbett | CITY OF FAIRBANKS, a Municipal Corporation, Appellant, v. Ray NESBETT, Appellee | Robert C. Erwin, of Hughes, Thorsness & Lowe, Anchorage, for appellant., George F. Boney, of Burr, Boney & Pease, Anchorage, Robert A. Parrish, Fairbanks, for appellee. | null | null | null | null | null | null | null | null | null | null | 60 | Published | null | <parties id="b639-4">
CITY OF FAIRBANKS, a municipal corporation, Appellant, v. Ray NESBETT, Appellee.
</parties><br><docketnumber id="b639-7">
No. 747.
</docketnumber><br><court id="b639-8">
Supreme Court of Alaska.
</court><br><decisiondate id="b639-9">
Oct. 23, 1967.
</decisiondate><br><attorneys id="b640-28">
<span citation-index="1" class="star-pagination" label="608">
*608
</span>
Robert C. Erwin, of Hughes, Thorsness & Lowe, Anchorage, for appellant.
</attorneys><br><attorneys id="b640-29">
George F. Boney, of Burr, Boney & Pease, Anchorage, Robert A. Parrish, Fairbanks, for appellee.
</attorneys> | [
"432 P.2d 607"
]
| [
{
"author_str": "Sanders",
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"opinion_text": "\n432 P.2d 607 (1967)\nCITY OF FAIRBANKS, a municipal corporation, Appellant,\nv.\nRay NESBETT, Appellee.\nNo. 747.\nSupreme Court of Alaska.\nOctober 23, 1967.\n*608 Robert C. Erwin, of Hughes, Thorsness & Lowe, Anchorage, for appellant.\nGeorge F. Boney, of Burr, Boney & Pease, Anchorage, Robert A. Parrish, Fairbanks, for appellee.\nBefore DIMOND and RABINOWITZ, JJ., and SANDERS, Superior Court Judge.\n\n\n*609 OPINION\nSANDERS, Superior Court Judge.\nAppellee instituted suit in the superior court against appellant city of Fairbanks and Joseph E. Pickens for personal injuries sustained when his motorcycle collided with Pickens' automobile.[1] Appellant's negligence was predicated upon the basis that it had parked one of its trucks in such a manner that it obstructed visibility in and about the point where the collision occurred. After trial by jury appellee received a verdict in the amount of $52,529 against appellant city of Fairbanks.[2] We have concluded that the case must be remanded to the superior court for a new trial on the damage issues only.\nBriefly, the evidence showed that just prior to impact appellee was on a motorcycle proceeding south on Cushman Street in the city of Fairbanks at a speed of 20 miles per hour. At this same time defendant Pickens was traveling in an easterly direction along 17th Street with the intent to cross the south-bound lane of Cushman Street in order to make a left turn into the north-bound lane of Cushman. A city of Fairbanks truck was parked on the west side of Cushman and north of the Cushman intersection with 17th Street.[3]\nDefendant Pickens testified that he pulled up to the intersection at 17th Street and Cushman and stopped. At this point appellant's truck blocked his view of the south-bound traffic lane on Cushman (north of 17th Street). Pickens further testified that after the car immediately behind him honked its horn, he (Pickens) proceeded into the intersection and when he reached the point where he could see around appellant's truck, his automobile was struck by appellee's motorcycle on its left-front fender. Appellee was thrown by the force of the impact into the oncoming lane of traffic. Pickens also testified that he had not seen appellee prior to the impact. Appellee testified that because of the location of appellant's truck he did not see the Pickens vehicle until a second before the collision took place and consequently, had no time in which to avoid the accident.\n\nAPPELLANT'S MOTIONS FOR DIRECTED VERDICT AND JUDGMENT NOTWITHSTANDING VERDICT\nAppellent's first two specifications of error assert that the trial court erred in failing to grant its motion for judgment notwithstanding verdict on the grounds that there was no evidence that any negligence on the part of the city of Fairbanks was \"the proximate cause\" of the accident in question. The gist of appellant's argument is that if negligent at all, its negligence was only \"passive\" and could not, as a matter of law, be held to be the proximate cause of the accident in question.\nThe standard which we have adopted for this jurisdiction is that in reviewing a lower court's rulings pertaining to motions for directed verdicts or judgments notwithstanding verdict the appellate court views the evidence in its strongest light most favorable to the non-moving party.[4] In such cases the appellate court *610 applies an objective test in determining whether or not fair-minded men in the exercise of reasonable judgment could differ. If there is room for diversity of opinion among reasonable men, then the question is one for the jury to decide.[5]\nThus, in the case at bar we view the evidence in its strongest light most favorable to appellee in determining whether fair-minded men in the exercise of reasonable judgment could differ as to whether or not any negligence on appellant's part was more likely than not a substantial factor in bringing about appellee's injury, and whether or not defendant Pickens' conduct was a superseding cause relieving appellant city from liability.\nIn addition to defendant Pickens' testimony that the city truck blocked his view of south-bound traffic coming down Cushman, appellee testified that he was proceeding south on Cushman at approximately 20 miles per hour; that he saw the city truck parked on the right side of the road at the intersection; that he did not see anybody around the truck and there were no \"Men Working\" signs; that there was a normal amount of traffic approaching him on the opposite lane on Cushman, and that there was no time for him to do anything before colliding with the Pickens car as he could not turn left to avoid hitting Pickens without turning into the oncoming traffic. He testified he did not have time to use his brakes to stop, and it would have been impossible to make a sharp right turn in the short space between the end of the truck and the side of Pickens' car.\nIn her deposition, Exie L. Hogan testified that she was traveling north on Cushman in her vehicle and that she observed the motorcycle, Pickens' car, and the city truck. The city truck was parked on the west side of Cushman facing north, and was on the pavement \"a little bit.\" She said that the Pickens car and motorcycle hit in the middle of the highway. She did not observe anything unusual about the speed of the motorcycle. She applied her brakes and pulled to the right completely off the pavement to keep from being in the accident. She stated that had the city truck not been parked where it was there was nothing that could have blocked appellee's or Pickens' view of each other. She saw no signs posted by the city indicating anything in the nature of work in progress, and she saw no workmen in the vicinity of the intersection prior to the accident.\nWitness Thomas Taylor testified that he was driving an automobile on 17th Street behind the Pickens vehicle. He stated that the city truck was parked on an angle right at the corner of Cushman and 17th and Pickens had to pull around the truck to see out on the highway. He stated that he did not see the motorcycle prior to the accident since he could not see around the city truck. He further testified that he did not see any warning signs or blinker lights around the city truck and that he had sounded his horn at Pickens to go ahead.\nJoseph Rampy, a truck driver employed by the city of Fairbanks on the day of the accident, testified that the city truck was parked on Cushman, 80 feet from the intersection, and that he had moved the truck to 17th Street a short while before the accident occurred. Other city employees testified concerning warning signals, blinking lights, and the reason for moving the city truck.\nIn our view the evidence we have outlined leaves room for diversity of opinion among reasonable men as to whether or not any negligence on the part of appellant was a substantial factor in bringing about appellee's injury. It is not necessary for the actor's conduct to be \"the\" legal cause of an injury for liability to *611 attach to the actor. It is only necessary that such conduct be \"a\" legal cause.[6]\nWe are also of the opinion that the record discloses a basis for diversity of opinion among reasonable men as to whether Pickens' actions constituted a superseding, or intervening cause which would relieve appellant of liability.[7] The jury was properly instructed as to the meaning of proximate cause, the effect of intervening conduct on the part of another person, and the burden of proof required.[8]\nIn the case now before this court, there are disputed facts concerning this proximate cause issue. We believe that reasonable men might differ as to whether the position of appellant's parked truck was a proximate cause of appellee's injury, and thus the question was properly submitted to the jury for resolution.[9] There was substantial evidence from which the jury could have determined that appellant's negligence was a proximate cause of the accident and appellee's injuries. The trial court did not err in overruling appellant's motions for directed verdict and judgment notwithstanding verdict.\n\nAS TO CONTRIBUTORY NEGLIGENCE\nIn regard to the liability issues, appellant urges that the lower court committed reversible error in not permitting its witness, Jimmy H. Jones, to state his expert opinion as to the comparative stopping capabilities of an automobile and a motorcycle. During a conference which was held outside the jury's presence, appellant's counsel stated, in effect, that the testimony in question would show that due to a difference in weight distribution between a car and a motorcycle, faster stops could be achieved on a motorcycle and that an experienced motorcyclist could stop in a given distance at a given speed; whereas, an inexperienced motorcyclist must drive at a slower speed to stop in the same distance. Apparently, the inference that appellant wanted to convey to the jury was that, since appellee had testified that there was not time to stop after he saw Pickens' car and before the collision, that he had not tried to stop; whereas, an experienced motorcyclist would have realized he could have stopped and would have attempted to do so, and that an inexperienced motorcyclist, such as appellee, should have been traveling at a slower speed.\nThe determination of the qualifications of an expert witness and the admission in evidence of opinion testimony are matters which lie within the sound discretion of the trial judge and such determinations *612 are reviewable only for abuse of discretion.[10]\nThe testimony as to Jones' skill was that he rode motorcycles as a teenager and for several years during that time participated in \"unofficial races.\" In the last few years his experience with motorcycles had been \"just occasionally, maybe once or twice a year.\" He had not maintained a continued technical interest in motorcycles. The witness presented no uniform charts and admitted he had never conducted experiments on stopping characteristics.\nJones' testimony was further objected to on the grounds that it was not relevant. Defendant Pickens stated that he never saw the motorcycle until the collision. There was no other testimony that appellee saw or could have seen the vehicle before the impact. Under these facts there would be some question as to the relevancy of testimony on the stopping characteristics of a motorcycle since appellee's unrebutted testimony was that \"there was just barely enough time to even reach for the brakes.\" In view of all the evidence relating to this specification of error, we are of the opinion that the trial judge did not commit an abuse of discretion by virtue of his refusal to permit the witness Jones to testify as an expert.\nAs to the issue of liability in general and contributory negligence in particular, appellant asserts two additional specifications of error. First, appellant argues that the superior court erred in not giving its requested instruction pertaining to the duty of a driver of a motor vehicle.[11] In our opinion the court's instruction relating to the duty of a driver adequately covered the subject of appellant's proposed instruction on this point.[12] Appellant's proposed instruction could not have added to the instructions which were given to the jury, and thus appellant was not prejudiced by the trial court's rejection of its proposed instruction.\nAdditionally, appellant contends that its proposed instruction number 17 should have been given.[13] Appellant contends that this instruction went to the issue of contributory negligence and the court's failure to give this instruction deprived the appellant of \"reasonable consideration\" by the jury of this defense. We hold that the superior court's refusal to give this instruction was not error. We believe that the substance of this requested instruction was adequately covered by the instructions which were given by the court.[14]\n\n\n*613 ISSUES TO BE TRIED UPON REMAND\nOne other issue pertaining to liability remains to be discussed. As we indicated earlier, we believe that the case must be remanded to the superior court for a new trial limited only to issues concerning damages. In its brief before this court, and in oral argument, appellant urges that in the event we find reversible error in regard to the damage issues, there should be a complete retrial of both liability and damage issues, and that the new trial should not be limited to the issues of damages alone.\nCivil Rule 59(a) provides in part that:\nA new trial may be granted * * * on all or part of the issues in an action in which there has been a trial by jury * * * if required in the interest of justice.[15]\nAlthough this rule of procedure pertains to the authority of trial courts to grant partial new trials, this court possesses equivalent authority to order a partial new trial upon remand. Our review of the entire record in this case convinces us that a partial new trial limited solely to the issues of damages will not result in an injustice to appellant. In our view the liability issues were properly decided; they were distinct from the damage issues, and there is no indication from the record that the verdict was possibly a compromise verdict.[16] Under such circumstances we deem it appropriate to limit the new trial which is to be held to exclusively damage issues.\n\nAS TO DAMAGES\nAt the time of the accident, September 4, 1962, appellee was 23 years of age, an active person, and employed in a temporary position on a survey crew during the summer before his second year in law school. He testified that at that time he was working approximately ten hours per day and six days per week, receiving $4.25 per hour with time and one-half for those hours over 40 hours per week. At this rate he was earning approximately $1,200 per month. Appellee testified that, during the summers prior to the summer of the accident, he had worked on the Alaska Railroad, on a survey crew, and on a fishing boat; but that, during the summer after his ankle injury, he was unable to work on a fishing boat or a survey crew. He further testified that during the summer of 1963 he was employed as a law clerk earning approximately $500 per month and that he took that position because he did not believe he was physically able to go out in a fishing boat. He stated that he fished in the summer of 1964 but said, in effect, that, although he had made a profit, he did not consider the fishing operation profitable for that summer. He also stated that after his graduation from law school he went to work for a law firm and was, at the time of the trial, receiving gross pay *614 of $950 per month and had received a $3,000 bonus in December before the trial. His average monthly salary for the year 1965, the year before the trial, was $1,200, the same monthly salary he was receiving at the time of the accident.\nAppellee further testified that he was in various hip and leg casts from September 4, 1962, through December of that year. He walked with crutches for several weeks after the casts were removed, and used a cane intermittently until June 1963.\nThere was evidence that appellee was a very active person who enjoyed participation in athletic activities, outdoor life, and hunting. As a result of this injury he has been unable to participate in any sports, hunting, or outdoor activities. He was commissioned as a reserve officer in the United States Army but could not serve on active duty and was retired because of the ankle injury. He testified that if he could not use his ankle to hunt, fish, and climb mountains he would be unable to enjoy that portion of his life which he regarded as important as the practice of law.\nFrom the record before us it is undisputed that appellee has sustained permanent damage to his ankle. As to the evidence in this regard, as well as to the need for future surgery, testimony of three medical experts was presented. Dr. George Wichman testified in relation to abnormality of the ankle joint that \"fusion of the joint might be necessary.\" Dr. Paul B. Haggland testified that, on the basis of his examination of appellee's ankle and x-rays taken almost two years after the accident occurred, it was his opinion that the present disability would not improve and \"that it may give more trouble with activity and may necessitate, at some future time, possibly a surgical procedure.\"\nA deposition of Dr. John F. Wiltberger was read in evidence. Dr. Wiltberger testified that he had performed an open reduction on appellee's ankle in September 1962, had inserted a surgical screw to hold the fracture in place, and had x-rayed the ankle several months thereafter. He stated that in his opinion the x-rays indicated an early osteoarthritic change and may require an ankle fusion for alleviation of appellee's discomfort.\nAs to appellee's activities, he testified that prior to the accident he hunted for sheep, moose, duck, caribou, bear, seal, and fished. That subsequent to an initial healing period of the ankle he enjoyed several months in which the condition of his ankle improved; and after that time it again began to give him pain when he used it for short periods and particularly when walking on a hillside or up a flight of stairs. He testified that in his practice as a lawyer, walking was his most strenuous exercise. He further stated that he had used a pedometer which measured eight miles walked during the course of one research project, after which his ankle was swollen and hurt.\nAt the trial evidence was introduced as to the nature of appellee's injury and the resulting disability. Competent medical witnesses testified that the injury was permanent and deteriorating. Three physicians testified that a foreign element a three-inch surgical screw had been inserted into appellee's ankle.\nIn light of the foregoing record pertaining to damages, the trial court instructed the jury as to certain \"items of claimed detriment\" for which they could compensate appellee if they found the same were proved, by a preponderance of the evidence, to have been proximately caused by the accident. Initially, the jury was instructed that they could award appellee for past \"pain, discomfort, fears, anxiety, inconvenience, restriction of activity aside from earning capacity and other mental and emotional distress\" and any such \"like detriment * * * reasonably certain\" to be suffered in the future. The jury was then instructed as to damages for loss of time and/or wages from the date of the injury to the date of the trial. The court then gave the jury a separate instruction to the effect that it could compensate appellee *615 if it found the injury \"set into motion an arthritic condition.\"[17]\nThe trial court next instructed the jury in regard to impairment of future earning capacity and future medical expenses.[18] Appellant contends that there was no evidence of impairment of earning capacity which would justify instructing the jury on that element of damages.[19] As we stated previously, we are in agreement with appellant's position and hold that the evidence in this case did not justify the submission of the issue of impairment of earning capacity to the jury.\nIn reaching the conclusion that on this record the trial judge erred in instructing the jury as to the element of impairment of future earning capacity, we reject appellee's argument to the effect that the jury was free to determine this element of damage from facts and inferences concerning the general nature of the injury.\nIn our view the Hanna v. Stoll[20] and Henne v. Balick[21] line of cases are more persuasive than those relied upon by appellee and represent the better rule in this area. In Henne a law student was involved in an automobile accident and as a result he suffered disfigurement and impairment of his sense of smell, as well as severe, recurring headaches. At the time of trial the plaintiff was a practicing attorney. In rejecting an argument based on Connolly v. Pre-Mixed Concrete Co.[22] that impairment *616 of earning capacity could be found regardless of any evidence of earnings, the court said:\nThe law does not permit a recovery of damages which is merely speculative or conjectural. * * * As a general rule, it refuses to allow a plaintiff damages relating to the future consequences of a tortious injury unless the proofs establish with reasonable probability the nature and extent of those consequences. * * * There must be some reasonable basis upon which a jury may estimate with a fair degree of certainty the probable loss which plaintiff will sustain in order to enable it to make an intelligent determination of the extent of this loss. * * The burden is upon the plaintiff to furnish such proof. If he fails in this respect, the jury cannot supply the omission by speculation or conjecture. * * The fact that there is some uncertainty as to plaintiff's damage or the fact that the damage is very difficult to measure will not preclude a jury from determining its value. * * * But this does not mean that there need be no proof at all as to plaintiff's earning capacity. Plaintiff must at least offer some evidence of loss of earnings in the future as a result of his permanent injury and, if possible, the nature and extent of his loss. * * *\nWe do not agree with the contention of plaintiff that the mere showing of permanent injuries, such as plaintiff sustained in this case, is, of itself, under the circumstances of this case, sufficient evidence of the extent of the impairment of plaintiff's future earning capacity. To support a finding of a specific sum as damages there should generally be other evidence than that which merely shows the nature of plaintiff's injuries and his vocation. * * * Viewing the record in the light most favorable to plaintiff, we feel that plaintiff has failed to produce any evidence showing his future loss of earnings or any other evidence from which such a finding by a jury would naturally flow. While, of course, the amount of plaintiff's loss as to future earnings could not have been fixed with the same degree of certainty as was possible in the case of past earnings, nevertheless, some tangible evidence relating to the extent of plaintiff's loss of future earnings should and probably could have been produced.[23]\nIn Hanna v. Stoll[24] a physician was injured when his automobile was struck by a bus. Evidence of his earnings at the time of injury was introduced but no evidence was produced as to his subsequent earnings. The court found that the jury could not base an award for impairment of earning capacity on the evidence and in so doing said:\nThis is a question of considerable importance in this case for the reason that the plaintiff was a physician and surgeon, and, in view of the fact that his physical injuries were comparatively slight, it *617 seems quite clear that the jury must have allowed him a very substantial sum as damages for the loss of earning capacity. The evidence in the record discloses that the plaintiff was 54 years of age and in the active practice of his profession, in which he had been engaged for 30 years. He was left-handed, and the evidence tended to show that a piece of glass embedded in the palm of his left hand had severed the tendon of the index finger, making it permanently impossible to fully flex that finger, which would materially interfere with the practice of his profession, making it difficult, if not impossible, to do certain things required of a general practitioner of medicine and surgery. It is contended, however, by counsel for defendant that in order to recover for loss of earning capacity it was absolutely essential to adduce evidence showing plaintiff's earning capacity, so that the difference between his earning capacity before and after the accident could be determined; that such damages are special damages and to be recovered must be specially pleaded and proven.\n* * * * * *\nThe authorities referred to indicate that such rule is applied somewhat strictly in cases where a professional man is seeking to recover damages for loss of earning capacity. In this case, concededly, there was no evidence whatever which could furnish a basis for a determination of the loss incurred by plaintiff by reason of the impairment of his earning capacity, which for the reasons above indicated must have been a very material factor in the determination of the verdict awarded him.[25]\nImpairment of earning capacity means the permanent diminution of the ability to earn money.[26] The determination of award of impairment of future earning capacity involves two distinct considerations, namely, determination of the extent of an earning capacity and the measurement of loss therefrom.[27] In determining the extent of impairment of an attorney's earning capacity and the measurement of loss therefrom, we hold that there must be evidence presented to the jury concerning the extent of impairment. In our view this is not an instance where the jury could have determined the extent of impairment of appellee's earning capacity from the nature of his injuries and occupation and by the use of its own common knowledge and experience.[28] In short, we are of the opinion that the record is devoid of evidence that appellee's capacity to earn money has been impaired. We hold, therefore, that it was error to submit this issue to the jury since they could only have speculated as to the extent of any impairment of appellee's capacity to earn money and the resulting monetary loss therefrom.\nOne other area of contention in this appeal remains to be disposed of. Appellant also argues that the court erred in instructing the jury that it could award damages for future surgery, the cost of future surgery, loss of earnings, and pain and suffering as a result of future surgery, and other future medical expenses.[29]*618 Appellant's broad contention in regard to these damages is that there was no evidence upon which the jury could have based its award. Appellant further contends that the evidence must indicate to a reasonable certainty that these damages will occur.[30] More specifically, appellant contends that the instruction was erroneous because it did not inform the jury that it could only make an award for future surgery where there was evidence of the need for such surgery and evidence of the cost of such surgery.\nIn light of our holding in regard to the impairment of earning capacity issue and the new trial ordered thereunder, we find it unnecessary to decide the questions raised as to future medical damages. Nevertheless, we deem the following comments appropriate. Such elements of damages which appellant now questions are required to be proven to a reasonable certainty that they will occur in the future. From our study of the record, we are of the opinion that upon retrial it is within appellee's power to produce more specific and detailed evidence as to the type of operation, or operations, that appellee will have to undergo in the future; as to the costs of such operation, or operations, and any hospitalization related thereto; as to the pain and suffering connected therewith; and as to the length of any period of disability flowing from the surgical procedures.[31]\nIn light of the foregoing the judgment entered below is vacated and the cause remanded for a new trial limited solely to the determination of appellee's damages.\nNOTES\n[1] Joseph E. Pickens is not a party to this appeal. The superior court jury returned a verdict in defendant Pickens' favor against appellee.\n[2] In the final judgment which was entered upon this verdict, appellee was also awarded $6,109.20 in attorneys' fees and $993.15 in costs.\n[3] The evidence is conflicting as to the truck's location in regard to the intersection and as to whether any portion of it was on the hard surface of Cushman Street. The evidence was also conflicting as to whether there were any signs or blinking lights which indicated the truck's position.\n[4] Howarth v. Pfeifer, 423 P.2d 680, 682 (Alaska 1967); Mallonee v. Finch, 413 P.2d 159, 160 (Alaska 1966); Otis Elevator Co. v. McLaney, 406 P.2d 7, 9 (Alaska 1965).\n[5] Bertram v. Harris, 423 P.2d 909, 919 (Alaska 1967); National Bank v. McHugh, 416 P.2d 239, 242 (Alaska 1966); Saxton v. Harris, 395 P.2d 71, 73 (Alaska 1964); McCoy v. Alaska Brick Co., 389 P.2d 1009, 1010 (Alaska 1964).\n[6] Restatement (Second) of Torts § 430, comment d (1965).\n[7] 1 D. Blashfield, Automobile Law & Practice § 53.5, at 377-382 (3d ed. 1965) (footnotes omitted):\n\nA proximate cause may be assisted or accelerated by other incidental and ancillary matters, without breaking the course of causation, and there may be a succession of intermediate causes, each depending on the one preceding it, and all so connected with the primary cause as to be, in legal contemplation, the proximate result thereof.\nAn intervening cause, which will interrupt or break the causal connection between the negligent act relied on as a cause of action or a defense and the injury for which suit is brought, must be one not produced by the alleged wrongful act or omission, or one which is not the natural and probable consequence of such act or omission. It must be of such a nature that it could not reasonably have been anticipated or foreseen by the actor responsible for the first cause, and it must prevent the natural and probable result of the original act or omission and produce a different result, not reasonably to be anticipated.\n[8] In this appeal appellant does not question the correctness of these instructions.\n[9] Cardona v. Toczydlowski, 35 Ill. App. 2d 11, 180 N.E.2d 709, 713 (1962); Boese v. Love, 300 S.W.2d 453, 458-459 (Mo. 1957); Karlsen v. Jack, 80 Nev. 201, 391 P.2d 319, 321-322 (1964); Graves v. Shippey, 215 Or. 616, 300 P.2d 442, 337 P.2d 347, 351 (1959). All of these cases involved parked vehicles proximate cause issues.\n[10] Pedersen v. State, 420 P.2d 327, 335 (Alaska 1966); Crawford v. Rogers, 406 P.2d 189, 192 (Alaska 1965).\n[11] Appellant's proposed instruction number 16 reads as follows:\n\nYou are instructed that it is the duty of every operator of a motor vehicle as he operates his vehicle along a street or highway to exercise ordinary care to keep a careful lookout ahead of and about him. This calls for the reasonable and effective use of the driver's sense of sight in a diligent effort to observe timely not only the presence, location and movement of other vehicles but also the condition of the roadway ahead of him and his position on the roadway.\n[12] The instruction which the trial court gave to the jury reads:\n\nIn determining whether or not a person was negligent, you are further instructed that it is the duty of the driver of any vehicle to exercise ordinary care to avoid placing himself or another person in danger; to use like care to avoid an accident from which injury might result; keeping a lookout for traffic and other conditions to be reasonably anticipated; and to keep the vehicle under control in order to avoid a collision with any person or with any other object that would be anticipated by an ordinarily prudent driver in like position.\n[13] This proposed instruction of appellant's reads:\n\nYou are instructed that general human experience supports the inference that when one in possession of his faculties looks in the direction of an object clearly visible, he sees it.\n[14] Veal v. Newlin, Inc., 367 P.2d 155, 156 (Alaska 1961).\n[15] This rule is substantially similar to Rule 59(a), Federal Rules of Civil Procedure. In Yates v. Dann, 11 F.R.D. 386, 392-393 (D.Del. 1951), it was stated that the federal rule was \"intended to prevent the retrial of any issue already properly decided, and to limit any new trial only to those issues which are incorrectly decided or not decided at all.\"\n\nSee also Supreme Court Rule 51(b) which provides:\nThe supreme court may affirm, modify, vacate, set aside or reverse any judgment, decree, decision or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree or order, or require such further proceedings to be had as may be just under the circumstances.\n[16] In most of the authorities relied upon by appellant in support of his argument here, it appears that the basis for requiring a retrial of all issues was that the juries had reached compromise verdicts. See Leipert v. Honold, 39 Cal. 2d 462, 247 P.2d 324, 29 A.L.R. 2d 1185 (1952); Hallford v. Schumacher, 323 P.2d 989 (Okl. 1958); Hanisch v. Body, 77 S.D. 265, 90 N.W.2d 924 (1958); Lofgren v. Western Wash. Corp. of Seventh Day Adventists, 65 Wash.2d 144, 396 P.2d 139 (1964).\n[17] These three instructions we have mentioned are not in issue in this appeal.\n[18] In regard to future medical damages, the court's full instruction reads as follows:\n\nIf you find for the plaintiff on the question of liability, and if you find from the evidence that the plaintiff sustained a fracture of the ankle as a direct and proximate result of the occurrence in question, and if you further find from the evidence that a pin was inserted in said bone which will require removal in the future, then, if you so find, in assessing damages you may consider the expense of the surgery, the pain and suffering to be experienced, if any, the length of the period of disability, if any, and the loss of earnings, if any, which plaintiff will sustain as a result of the period of disability.\nIf you further find from the evidence that fusion of the bone by surgery was required, then, if you so find, in assessing damages you may consider the expense of the surgery, the pain and suffering to be experienced, if any, the length of the period of disability, if any, and the loss of earnings, if any, which plaintiff will sustain as a result of the period of disability.\nIf you find that there is a deformity at or near the site of the fracture, then, if you so find you may consider the evidence relative to the deformity and the cause of same. In considering this element of the case, you should first consider whether the plaintiff was guilty of any negligence which caused the deformity or prevented normal healing. If you should so find from the evidence, then the defendant would not be liable for the results of said negligence, if any there was.\nIf you find that the plaintiff was not guilty of any negligence which caused the deformity or prevented normal healing, and if you find for the plaintiff on the question of liability, then, in assessing plaintiff's damages you should consider; (1) the location of the deformity and the cosmetic effect of same, if any, (2) the pain and suffering experienced by plaintiff, if any, (3) the effect of said deformity on plaintiff's occupation, his family life, his social life and his recreational activities, if any, (4) Medical expenses, past and future, if any, which are a direct and proximate result of said injury, and (5) you may consider any further evidence that may assist you in returning a fair and impartial verdict.\n[19] Civil Rule 49(c) authorizes the trial court to submit interrogatories to the jury \"upon one or more issues of fact the decision of which is necessary to a verdict.\" This was not done in this case.\n[20] 112 Ohio St. 344, 147 N.E. 339, 341-342 (1925) (citations omitted).\n[21] 1 Storey 369, 51 Del. 369, 146 A.2d 394, 396 (1958).\n[22] 49 Cal. 2d 483, 319 P.2d 343, 346 (1957). In Connolly a champion tennis player suffered a leg injury which ended her professional career. In affirming the award of damages, the court said:\n\nLoss of earning power is an element of general damages which can be inferred from the nature of the injury, without proof of actual earnings or income either before or after the injury, and damages in this respect are awarded for the loss of ability thereafter to earn money.\nThe theory that impairment of earning capacity can be inferred from the general nature of the injuries has been applied in cases of injuries to infants. Capriotti v. Beck, 264 Minn. 39, 117 N.W.2d 563, 569 (1962); Hembree v. Southard, 339 P.2d 771, 777-778 (Okl. 1959); Doremus v. Atlantic Coast Line R.R., 242 S.C. 123, 130 S.E.2d 370 (1963). Similarly, the same theory has been applied in cases involving injuries to housewives. Florida Greyhound Lines, Inc. v. Jones, 60 So. 2d 396 (Fla. 1952); Wilson v. Sorge, 256 Minn. 125, 97 N.W.2d 477 (1959). See Baylor v. Tyrrell, 177 Neb. 812, 131 N.W.2d 393, 401 (1964) (retired plaintiff).\n[23] Accord, Coles v. Spence, 202 A.2d 569, 570-571 (Del. 1964); Bartholf v. Baker, 71 So. 2d 480, 485 (Fla. 1954); Condron v. Harl, 46 Haw. 66, 374 P.2d 613, 618-619 (1962); Honeycutt v. Wabash R.R., 313 S.W.2d 214, 218-219 (Mo. App.), rev'd on other grounds, 355 U.S. 424, 78 S. Ct. 393, 2 L. Ed. 2d 380 (1958); Schwab v. Allou Corp., 177 Neb. 342, 128 N.W.2d 835, 842-843 (1964).\n[24] 112 Ohio St. 344, 147 N.E. 339, 341-342 (1925).\n[25] See Lashin v. Corcoran, 146 Conn. 512, 152 A.2d 639, 641 (1950); Wilson v. Sorge, 256 Minn. 125, 97 N.W.2d 477, 484 (1959) (concurring opinion).\n[26] Thomas v. Whiteside, 421 P.2d 449, 451 (Mont. 1966); Murray v. Mossman, 52 Wash.2d 885, 329 P.2d 1089, 1092 (1958); Restatement of Torts § 906, comment c at 550 (1939).\n[27] Condron v. Harl, 46 Haw. 66, 374 P.2d 613, 618 (1962). See Coll v. Sherry, 29 N.J. 166, 148 A.2d 481, 487 (1959).\n[28] 3 Personal Injury § 3.04 [4] [a] [iv], at 132-35 (1965). Compare Saslow v. Rexford, 395 P.2d 36, 42-43 (Alaska 1964).\n[29] We have set out the entire text of the court's instruction in note 18, supra. Note that in the last paragraph of this instruction the jury was informed that it could consider the effect of appellee's \"deformity\" upon his \"occupation.\"\n[30] Appellant cites this court's decision in Saslow v. Rexford, 395 P.2d 36, 42 (Alaska 1964), where it was said:\n\nWhile instruction No. 30 is not expressed in the most artful of language, it can be reasonably interpreted in the manner contended for by the plaintiff, namely, that the jury could award only damages which were reasonably certain to result from the injury, and that the possibility of decreased earning capacity was one factor to be considered.\n[31] Carraco Oil Co. v. Morhain, 380 P.2d 957 (Okl. 1963). In Henderson v. Breesman, 77 Ariz. 256, 269 P.2d 1059, 1061-1062 (1954), the court said:\n\n[T]he jury cannot be allowed to speculate or guess in making allowance for future medical expenses; there must be some data furnished the jury upon which it might reasonably estimate the amount to be allowed for this item.\n\n",
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| Alaska Supreme Court | Alaska Supreme Court | S | Alaska, AK |
76,077 | Anderson, Barkett, Birch | 2003-01-09 | false | anheuser-busch-v-irvin-p-philpot-iii | Anheuser-Busch | Anheuser-Busch v. Irvin P. Philpot, III | ANHEUSER-BUSCH, INC., Plaintiff-Appellant, v. Irvin P. PHILPOT, III, Defendant-Appellee | Patricia Anne Leonard, Jack J. Aiello, Gunster, Yoakley & Stewart, P.A., West Palm Beach, FL, Peter E. Moll, Christina Guerola Sarchio, Howrey & Simon, Washington, DC, for Plaintiff-Appellant. | null | null | null | null | null | null | null | null | null | null | 6 | Published | null | <parties id="b1296-3">
ANHEUSER-BUSCH, INC., Plaintiff-Appellant, v. Irvin P. PHILPOT, III, Defendant-Appellee.
</parties><br><docketnumber id="b1296-6">
No. 02-10892.
</docketnumber><br><court id="b1296-7">
United States Court of Appeals, Eleventh Circuit.
</court><br><decisiondate id="b1296-8">
Jan. 9, 2003.
</decisiondate><br><attorneys id="b1296-23">
Patricia Anne Leonard, Jack J. Aiello, Gunster, Yoakley & Stewart, P.A., West Palm Beach, FL, Peter E. Moll, Christina Guerola Sarchio, Howrey & Simon, Washington, DC, for Plaintiff-Appellant.
</attorneys><br><judges id="b1296-25">
Before ANDERSON, BIRCH and BARKETT, Circuit Judges.
</judges> | [
"317 F.3d 1264"
]
| [
{
"author_str": "Barkett",
"per_curiam": false,
"type": "010combined",
"page_count": 7,
"download_url": "http://www.ca11.uscourts.gov/opinions/ops/200210892.opn.pdf",
"author_id": null,
"opinion_text": "317 F.3d 1264\n ANHEUSER-BUSCH, INC., Plaintiff-Appellant,v.Irvin P. PHILPOT, III, Defendant-Appellee.\n No. 02-10892.\n United States Court of Appeals, Eleventh Circuit.\n January 9, 2003.\n \n Patricia Anne Leonard, Jack J. Aiello, Gunster, Yoakley & Stewart, P.A., West Palm Beach, FL, Peter E. Moll, Christina Guerola Sarchio, Howrey & Simon, Washington, DC, for Plaintiff-Appellant.\n Appeal from the United States District Court for the Southern District of Florida.\n Before ANDERSON, BIRCH and BARKETT, Circuit Judges.\n BARKETT, Circuit Judge:\n \n \n 1\n In this diversity action for defamation, Anheuser-Busch, Inc. (\"Busch\") appeals from the district court's final judgment in favor of Irvin P. Philpot, III (\"Philpot\"). Busch, a Missouri corporation, filed the action against Philpot, a Florida citizen, alleging that Philpot had defamed Busch by maliciously telling hundreds of people, including influential business leaders, that Busch's dealings with its distributors amounted to criminal conduct. The complaint further alleged that this defamation had caused Busch at least $75,000 in damages.\n \n \n 2\n Although an attorney initially appeared on Philpot's behalf, he withdrew on January 25, 2001, after moving to dismiss the case and responding to Busch's interrogatories and request for production of documents. Philpot thereafter remained without the assistance of counsel and failed to answer the complaint. The clerk of court, upon Busch's motion, accordingly entered a default against him on April 10, 2001. Thereafter, on May 1, 2001, Busch served Philpot with a request for admissions pursuant to Federal Rule of Civil Procedure 36;1 the pertinent Request for Admission stated that Busch had \"suffered general damages in an amount not less than $2,000,000.00 as a result of the facts and circumstances set forth in the Complaint.\" After Philpot failed to respond to the Request for Admission, Busch moved for an entry of final default judgment and damages in the amount of $2,000,000. On September 7, 2001 the court entered a default judgment against Philpot and scheduled an evidentiary hearing to determine damages.\n \n \n 3\n Busch took the position that Philpot's failure to respond to its Request for Admission conclusively established its entitlement to $2,000,000 in damages, but stated that if required, its expert witness would establish that Busch had suffered more than $2,000,000 in damages as a result of the defamation. The court ruled that under the circumstances presented, Busch would have to prove actual damages in order to prevail on its defamation claim. Accordingly, it proceeded with the evidentiary hearing pursuant to Federal Rule of Civil Procedure 55(b)(2).\n \n \n 4\n At the hearing, Busch's expert offered his opinion that because of Philpot's defamatory statements, Busch did not receive full value for the approximately 266 million dollars it had spent to strengthen its relationship with its wholesalers during the relevant period. Based on the notion of \"corrective advertising,\" which proposes that injury from defamatory statements can be as high as twenty-five percent of a company's relevant advertising costs, the expert testified that he thought that Busch was entitled to at least one to five percent of its $266 million expenditure, or $2.6 to 13.3 million. According to the expert, the need for corrective advertising could be inferred from Busch's increased advertising expenditures between 1997 and 2000, which reversed the trend between 1990 and 1996. Philpot testified only briefly, regarding his alleged calls to influential people, explaining that he either had not spoken with them or had not said anything negative to them about Busch.\n \n \n 5\n The court concluded that Busch had not presented any evidence of harm to its reputation at a consumer or distributor level, of loss of value, or of a need to engage in corrective advertising. As to Busch's expert testimony regarding the inferred need for corrective advertising, the court found that Busch had failed to establish a connection between any such need and the statements allegedly made by Philpot. Accordingly, because Busch had not proved any actual damages from any defamation by Philpot, the court vacated the default judgment for Busch and entered final judgment for Philpot.\n \n DISCUSSION\n \n 6\n The issue before us is the narrow question of whether the trial court abused its discretion in requiring an evidentiary hearing to prove actual damages under the circumstances presented. See Johnson v. DeSoto County Board of Commissioners, 204 F.3d 1335, 1340 (11th Cir.2000) (holding that \"[t]he scope and effect of admissions... is a matter for determination by the trial court, in the exercise of its broad discretion\"). We conclude that there was no abuse of discretion here.\n \n \n 7\n Under Florida law,2 proof of \"actual damage\" is an essential element of a defamation action. See Miami Herald Publ'g Co. v. Ane, 423 So.2d 376, 388 (Fla. Dist.Ct.App.1982); see also Rubin v. U.S. News & World Report, Inc., 271 F.3d 1305, 1306 (11th Cir.2001). Regarding the amount of damages, Florida law makes clear as well that an amount of uncertain damages cannot be established conclusively based on an unanswered Request for Admission. See Bradford Motor Cars Inc. v. Frem, 511 So.2d 1120, 1121 (Fla.Dist.Ct. App.1987). Federal law similarly requires a judicial determination of damages absent a factual basis in the record. See Adolph Coors Co. v. Movement Against Racism and the Klan, 777 F.2d 1538, 1543-44 (11th Cir.1985) (holding that \"a judgment of default awarding cash damages could not properly be entered without a hearing, unless the amount claimed is a liquidated sum or one capable of mathematical calculation\") (quotation and citation omitted). To that end, Rule 55(b)(2) of the Federal Rules of Civil Procedure provides that following entry of a default judgment, a district court may conduct an evidentiary hearing \"to determine the amount of damages or to establish the truth of any averment by evidence....\" Fed.R.Civ.P. 55(b)(2).\n \n \n 8\n In this case, the Request for Admission asserted an amount that was not based on any specified fact; there was nothing in the Request for Admission or Complaint that established, or even suggested, facts that supported a concrete, actual damage amount. Damages resulting from defamation, unlike liquidated damages, may range from nominal to significant amounts. We cannot say it is an abuse of discretion for a trial judge to conduct an evidentiary hearing when the amount of damages is uncertain and speculative. A court has an obligation to assure that there is a legitimate basis for any damage award it enters, and to assure that damages are not awarded solely as the result of an unrepresented defendant's failure to respond to a Request for Admission that may allege a completely unreasonable or speculative amount of damages with no factual basis. See id.; cf. Brook Village North Assoc. v. General Elec. Co., 686 F.2d 66, 73-75 (1st Cir.1982) (holding that defendant's failure to respond to a request for admission that included letters detailing reparation costs conclusively established damages).\n \n \n 9\n Under the circumstances in the present case — Philpot's pro se status, the requirement of proof of actual damages in a defamation action, and the lack of any factual basis for the damage amount in the Request for Admission — we find no abuse of discretion in the district court's decision to hold an evidentiary hearing to determine damages pursuant to Rule 55(b)(2).3\n \n \n 10\n Finally, we reject Busch's argument that the district court erred by setting aside the default judgment absent a motion by Philpot. The default judgement entered by the court against Philpot was not a final default judgment, as it provided neither relief nor damages. See Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1364 n. 27 (1997). Accordingly, the court could set it aside sua sponte for \"good cause.\" See Fed.R.Civ.P. 55(c). Under the circumstances presented here, Busch's failure to prove actual damages was sufficient \"good cause\" for the court to vacate the default and enter final judgment for Philpot.\n \n \n 11\n AFFIRMED.\n \n \n \n Notes:\n \n \n 1\n Under the federal rules, \"[a] party may serve upon any other party a written request for the admission ... of the truth of any matters,\" Fed.R.Civ.P. 36(a), that are \"relevant to the claim,\"id. 26(b)(1). A request that is not responded to within 30 days of service is deemed admitted. See id. 36(a). \"Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission.\" Id. 36(b); see United States v. 2204 Barbara Lane, 960 F.2d 126, 129-30 (11th Cir.1992). Withdrawal or amendment of admissions may be allowed \"when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining the action....\" Fed. R.Civ.P. 36(b).\n \n \n 2\n We apply Florida substantive law to the defamation claimSee Media Services Group, Inc. v. Bay Cities Communications, Inc., 237 F.3d 1326, 1329 (11th Cir.2001).\n \n \n 3\n We note that Busch never argued below that it would be prejudiced by the evidentiary hearing nor moved for a continuance of the hearing in order to avoid such prejudice\n \n \n ",
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| Eleventh Circuit | Court of Appeals for the Eleventh Circuit | F | USA, Federal |
844,036 | null | 2006-12-29 | false | people-of-michigan-v-aaron-jerrod-lloyd | null | People of Michigan v. Aaron Jerrod Lloyd | null | null | null | null | null | null | null | null | null | null | null | null | 0 | Published | null | null | null | [
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": 1,
"download_url": "http://publicdocs.courts.mi.gov:81/SCT/PUBLIC/ORDERS/20061229_S132276_16_132276_2006-12-29_or.pdf",
"author_id": null,
"opinion_text": "Order Michigan Supreme Court\n Lansing, Michigan\n\n December 29, 2006 Clifford W. Taylor,\n Chief Justice\n\n 132276 Michael F. Cavanagh\n Elizabeth A. Weaver\n Marilyn Kelly\n Maura D. Corrigan\n PEOPLE OF THE STATE OF MICHIGAN, Robert P. Young, Jr.\n Plaintiff-Appellee, Stephen J. Markman,\n Justices\n\n v SC: 132276\n COA: 271516\n Genesee CC: 05-016202-FC\n AARON JERROD LLOYD,\n Defendant-Appellant.\n\n _________________________________________/\n\n On order of the Court, the application for leave to appeal the August 23, 2006\n order of the Court of Appeals is considered, and it is DENIED, because we are not\n persuaded that the questions presented should be reviewed by this Court.\n\n\n\n\n I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the\n foregoing is a true and complete copy of the order entered at the direction of the Court.\n December 29, 2006 _________________________________________\n t1218 Clerk\n\f",
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| Michigan Supreme Court | Michigan Supreme Court | S | Michigan, MI |
244,420 | Bazelon, Burger, Jackson, Per Curiam | 1958-03-06 | false | jesse-hamilton-v-united-states | null | Jesse Hamilton v. United States | Jesse HAMILTON, Appellant, v. UNITED STATES of America, Appellee | Mr. Sol M. Alpher, Washington, D. C. (appointed by this Court), for appellant., Mr. Fred L. McIntyre, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., Lewis Carroll and Joel D. Blackwell, Asst. U. S. Attys., were on the brief, for appellee. | null | null | null | null | null | null | null | Argued Feb. 17, 1958. | null | null | 2 | Published | null | <parties data-order="0" data-type="parties" id="b914-7">
Jesse HAMILTON, Appellant, v. UNITED STATES of America, Appellee.
</parties><br><docketnumber data-order="1" data-type="docketnumber" id="b914-9">
No. 14074.
</docketnumber><br><court data-order="2" data-type="court" id="b914-10">
United States Court of Appeals District of Columbia Circuit.
</court><br><otherdate data-order="3" data-type="otherdate" id="b914-12">
Argued Feb. 17, 1958.
</otherdate><br><decisiondate data-order="4" data-type="decisiondate" id="b914-13">
Decided March 6, 1958.
</decisiondate><br><attorneys data-order="5" data-type="attorneys" id="b914-19">
Mr. Sol M. Alpher, Washington, D. C. (appointed by this Court), for appellant.
</attorneys><br><attorneys data-order="6" data-type="attorneys" id="b914-20">
Mr. Fred L. McIntyre, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., Lewis Carroll and Joel D. Blackwell, Asst. U. S. Attys., were on the brief, for appellee.
</attorneys><br><p data-order="7" data-type="judges" id="b914-21">
Before Bazelon and Burger, Circuit Judges, and Jackson, a Senior Judge of the United States Court of Customs and Patent Appeals.
<a class="footnote" href="#fn*" id="fn*_ref">
*
</a>
</p><div class="footnotes"><div class="footnote" data-order="8" data-type="footnote" id="fn*" label="*">
<a class="footnote" href="#fn*_ref">
*
</a>
<p id="b914-25">
Sitting by designation pursuant to the provisions of § 294(d) of Title 28 United States Code.
</p>
</div></div> | [
"252 F.2d 862"
]
| [
{
"author_str": "Per Curiam",
"per_curiam": false,
"type": "010combined",
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"download_url": "http://bulk.resource.org/courts.gov/c/F2/252/252.F2d.862.14074.html",
"author_id": null,
"opinion_text": "252 F.2d 862\n Jesse HAMILTON, Appellant,v.UNITED STATES of America, Appellee.\n No. 14074.\n United States Court of Appeals District of Columbia Circuit.\n Argued February 17, 1958.\n Decided March 6, 1958.\n \n Mr. Sol M. Alpher, Washington, D. C. (appointed by this Court), for appellant.\n Mr. Fred L. McIntyre, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., Lewis Carroll and Joel D. Blackwell, Asst. U. S. Attys., were on the brief, for appellee.\n Before BAZELON and BURGER, Circuit Judges, and JACKSON, a Senior Judge of the United States Court of Customs and Patent Appeals.*\n PER CURIAM.\n \n \n 1\n A jury convicted appellant of manslaughter. There was evidence from which the jury could have found the following facts: At about 9:20 P.M. on January 5, 1956, appellant and the woman with whom he had been living for four years were standing on a street car loading platform on a street fairly active with traffic. Appellant struck the woman in the face several times and she fell upon the street car tracks. While she was trying to get up, a taxicab approached and, although appellant did not attempt to stop it, it did stop short and drive around the other side of the loading platform. Before the woman could get off the tracks, appellant struck her again. This time she lay motionless. Appellant still made no attempt to halt the approaching traffic or to help the woman to a place of safety. He merely walked away. Another approaching taxicab ran over her and inflicted injuries from which she died a few days later.\n \n \n 2\n On this appeal appellant urges that death resulted, not from his blows, but from the independent intervening injuries inflicted by the taxicab. We think that in the total circumstances of this case the jury could conclude beyond a reasonable doubt that the death was a reasonably foreseeable consequence of appellant's malicious conduct.\n \n \n 3\n Appellant's other contentions disclose no error affecting substantial rights.\n \n \n 4\n Affirmed.\n \n \n \n Notes:\n \n \n *\n Sitting by designation pursuant to the provisions of § 294(d) of Title 28 United States Code\n \n \n ",
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| D.C. Circuit | Court of Appeals for the D.C. Circuit | F | USA, Federal |
200,019 | Coffin, Lipez, Selya | 2002-07-09 | false | seahorse-marine-supplies-inc-v-puerto-rico-sun-oil-co | null | Seahorse Marine Supplies, Inc. v. Puerto Rico Sun Oil Co. | SEAHORSE MARINE SUPPLIES, INC., Plaintiff, Appellee, v. PUERTO RICO SUN OIL COMPANY, Defendant, Appellant; Seahorse Marine Supplies, Inc., Plaintiff, Appellant, v. Puerto Rico Sun Oil Company, Defendant, Appellee | Carlos A. Rodriguez-Vidal, with whom Goldman, Antonetti & Cordova was on brief, for Puerto Rico Sun Oil Company., Luis A. Oliver-Fraticelli, with whom Fiddler, Gonzalez & Rodriguez was on brief, for Seahorse Marine Supplies, Inc. | null | null | null | null | null | null | null | Heard March 6, 2002. | null | null | 38 | Published | null | <parties id="b122-6">
SEAHORSE MARINE SUPPLIES, INC., Plaintiff, Appellee, v. PUERTO RICO SUN OIL COMPANY, Defendant, Appellant. Seahorse Marine Supplies, Inc., Plaintiff, Appellant, v. Puerto Rico Sun Oil Company, Defendant, Appellee.
</parties><br><docketnumber id="b122-12">
Nos. 01-1791, 01-1792.
</docketnumber><br><court id="b122-13">
United States Court of Appeals, First Circuit.
</court><br><otherdate id="b122-15">
Heard March 6, 2002.
</otherdate><br><decisiondate id="b122-16">
Decided July 9, 2002.
</decisiondate><br><attorneys id="b125-10">
<span citation-index="1" class="star-pagination" label="71">
*71
</span>
Carlos A. Rodriguez-Vidal, with whom Goldman, Antonetti & Cordova was on brief, for Puerto Rico Sun Oil Company.
</attorneys><br><attorneys id="b125-11">
Luis A. Oliver-Fraticelli, with whom Fiddler, Gonzalez & Rodriguez was on brief, for Seahorse Marine Supplies, Inc.
</attorneys><br><judges id="b125-12">
Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and LIPEZ, Circuit Judge.
</judges> | [
"295 F.3d 68"
]
| [
{
"author_str": "Coffin",
"per_curiam": false,
"type": "010combined",
"page_count": 31,
"download_url": "http://www.ca1.uscourts.gov/pdf.opinions/01-1791-01A.pdf",
"author_id": null,
"opinion_text": "295 F.3d 68\n SEAHORSE MARINE SUPPLIES, INC., Plaintiff, Appellee,v.PUERTO RICO SUN OIL COMPANY, Defendant, Appellant.Seahorse Marine Supplies, Inc., Plaintiff, Appellant,v.Puerto Rico Sun Oil Company, Defendant, Appellee.\n No. 01-1791.\n No. 01-1792.\n United States Court of Appeals, First Circuit.\n Heard March 6, 2002.\n Decided July 9, 2002.\n \n COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Carlos A. Rodriguez-Vidal, with whom Goldman, Antonetti & Cordova was on brief, for Puerto Rico Sun Oil Company.\n Luis A. Oliver-Fraticelli, with whom Fiddler, Gonzalez & Rodriguez was on brief, for Seahorse Marine Supplies, Inc.\n Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and LIPEZ, Circuit Judge.\n COFFIN, Senior Circuit Judge.\n \n \n 1\n These appeals are the latest chapter in a decade-long conflict between appellant/cross-appellee Puerto Rico Sun Oil Company (\"Sun Oil\") and appellee/cross-appellant Seahorse Marine Supplies, Inc. (\"Seahorse\"). The dispute arose at the end of a long relationship between the parties, during which Sun Oil had provided fuel, predominantly diesel, to Seahorse. Seahorse sued Sun Oil, invoking the protections of the Petroleum Marketing Practices Act (\"PMPA\"), 15 U.S.C. §§ 2801-41, and contending that Sun Oil improperly terminated the parties' relationship in violation of that statute. Seahorse prevailed at trial, and Sun Oil now challenges the district court's finding of subject matter jurisdiction, the jury instructions, the admission of certain expert testimony, and the denial of a motion for a new trial. Seahorse cross-appeals and disputes the sufficiency of the evidence as to its purported failure to mitigate damages. We affirm in all respects.\n \n I. Factual Background\n \n 2\n Sun Oil, an oil refinery operating in Yabucoa, Puerto Rico, and Seahorse, a marine supplies distributor and ship repair/maintenance service, began their business relationship in 1983, when Seahorse started selling Sun Oil's unbranded fuel oil.1 On July 23, 1988, the parties executed a trial franchise agreement expressly governed by the PMPA. Pursuant to that agreement, Sun Oil authorized Seahorse to use and display Sun Oil's trademark for the purpose of identifying and advertising the source of the product. In April 1989, Sun Oil terminated the trial franchise agreement pursuant to the terms of the PMPA. The parties negotiated during the following several months, and on September 30, 1989, entered a one-year agreement permitting Seahorse to continue to sell the same fuel products under Sun Oil's trademark. The agreement did not specifically mention the PMPA, but it provided that it was \"subject to interpretation and enforceability under the laws of the Commonwealth of Puerto Rico and the laws of the United States of America.\"2\n \n \n 3\n As that agreement neared its end date, the parties agreed to extend the agreement while they negotiated its renewal, and they continued in that fashion through September 1991. On September 18, 1991, Sun Oil changed its price posting method from a weekly pricing formula to a daily one.3 In November, Sun Oil began rationing the fuel it would sell to Seahorse. It later stopped all delivery of its product to Seahorse on credit. In January 1992, Seahorse stopped buying fuel from Sun Oil. On February 17, Sun Oil sent Seahorse a letter demanding that Seahorse discontinue use of Sun Oil's trademark. The parties' relationship ended, this litigation ensued, and a short time later Seahorse shut down its operations.\n \n II. Procedural Background\n \n 4\n Seahorse filed suit on March 12, 1992, invoking the protections of the PMPA and alleging wrongful termination or nonrenewal of its franchise by Sun Oil. On May 7, Sun Oil filed a motion to dismiss, challenging subject matter jurisdiction on both diversity and federal question grounds. The district court (Pérez-Giménez, J.) granted the motion to dismiss on diversity grounds, but concluded that subject matter jurisdiction was present under a \"liberal construction\" of the PMPA. Specifically, the district court concluded that the PMPA's definition of \"motor fuel\" includes \"maritime and industrial motor fuels, used by any type of motor vehicles, including trucks and boats, in public roads or any type of way, including the seas.\" On November 29, the district court denied Sun Oil's request for reconsideration, or, alternatively, for certification of an immediate appeal under 28 U.S.C. § 1292(b). The case was subsequently transferred to Judge Domínguez.\n \n \n 5\n On February 16, 1995, Seahorse filed a motion for partial summary judgment based on Sun Oil's alleged failure to provide the PMPA's requisite notice to terminate the relationship. That motion was referred to a magistrate judge, who recommended that it be denied and concluded that\n \n \n 6\n there exists a plethora of evidence in the form of communications between the parties (which includes letters and faxes), which could lead a reasonable trier of fact to conclude that Seahorse was on actual notice of the particulars required by the Act, and that additional written notice would have been an exercise in futility as it would [have] merely equat[ed] with an elevation of form over substance.\n \n \n 7\n (Internal quotations omitted.) On August 7, 1997, the district court rejected the magistrate judge's recommendation that summary judgment be denied. Instead, it concluded that because Sun Oil's February 17, 1992 letter to Seahorse did not comply with the Act's notice requirements, Sun Oil was strictly liable to Seahorse under the PMPA.\n \n \n 8\n On August 21, 1997, Sun Oil moved to alter, amend or clarify the August 7 order, and, inter alia, again requested that the court certify the order for interlocutory appeal under 28 U.S.C. § 1292(b). On December 30, 1997, the court reversed its prior grant of summary judgment, finding that a reasonable jury could conclude that Seahorse voluntarily had abandoned its relationship with Sun Oil, but left intact the finding that if there was no voluntary abandonment, Sun Oil was liable. The district court also certified the jurisdictional question for appeal to this court. Despite this certification, we denied Sun Oil's petition on February 27, 1998.\n \n \n 9\n Trial began on October 4, 1999 and continued through December 21. The court limited the triable issues to (1) whether Sun Oil had terminated or non-renewed, or whether Seahorse had voluntarily abandoned, the franchise; and (2) if Sun Oil had terminated or non-renewed, the amount of damages to which Seahorse was entitled.\n \n \n 10\n On November 2 and 3, 1999, the court held a hearing under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), regarding Sun Oil's challenges to Seahorse's expert testimony. The court concluded that the expert testimony was admissible and its strength should hinge on the jury's credibility findings.\n \n \n 11\n The jury concluded that Sun Oil had illegally terminated or non-renewed the parties' relationship and awarded Seahorse $2.5 million.4 On December 30, 1999, the district court entered judgment pursuant to the verdict. The court later denied a variety of post-judgment motions and reentered judgment on March 30, 2001. Sun Oil and Seahorse subsequently timely filed their respective notices of appeal.\n \n III. Subject Matter Jurisdiction Under the PMPA\n \n 12\n At the outset, Sun Oil challenges the district court's conclusion that it possessed subject matter jurisdiction over this case. The district court concluded that Congress contemplated protection for distributors like Seahorse in contractual relationships with refiners like Sun Oil. We review that determination de novo, Bull HN Info. Sys., Inc. v. Hutson, 229 F.3d 321, 328 (1st Cir.2000), and conclude that subject matter jurisdiction is present.\n \n \n 13\n The PMPA is a remedial statute, and as such, \"merits a relatively expansive construction,\" C.K. Smith & Co. v. Motiva Enters., 269 F.3d 70, 76 (1st Cir.2001). We are mindful, however, that the statute is in derogation of common law rights, and therefore \"should not be interpreted to reach beyond its original language and purpose.\" Id. (quoting Chestnut Hill Gulf, Inc. v. Cumberland Farms, Inc., 940 F.2d 744, 750 (1st Cir.1991)).\n \n \n 14\n With these principles in mind, we turn to the text of the statute, as the \"starting point for interpretation of a statute is the language of the statute itself.\" Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 835, 110 S.Ct. 1570, 108 L.Ed.2d 842 (1990) (internal quotation marks omitted). We give effect to the statute's plain meaning \"unless it would produce an absurd result or one manifestly at odds with the statute's intended effect,\" Parisi by Cooney v. Chater, 69 F.3d 614, 617 (1st Cir.1995); see also United States v. Puerto Rico, 287 F.3d 212, 217 (1st Cir.2002); Arnold v. United Parcel Serv., 136 F.3d 854, 857-58 (1st Cir.1998), and we interpret the plain language \"in light of the purposes Congress sought to serve.\" See Arnold, 136 F.3d at 858 (citing Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 118, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983)). Under the PMPA,\n \n \n 15\n [t]he term \"franchise\" means any contract —\n \n \n 16\n (i) between a refiner and a distributor,\n \n \n 17\n (ii) between a refiner and a retailer,\n \n \n 18\n (iii) between a distributor and another distributor, or\n \n \n 19\n (iv) between a distributor and a retailer, under which a refiner or distributor (as the case may be) authorizes or permits a retailer or distributor to use, in connection with the sale, consignment, or distribution of motor fuel, a trademark which is owned or controlled by such refiner or by a refiner which supplies motor fuel to the distributor which authorizes or permits such use.\n \n \n 20\n 15 U.S.C. § 2801(1) (emphasis added).\n \n \n 21\n \"Motor fuel\" is defined as \"gasoline and diesel fuel of a type distributed for use as a fuel in self-propelled vehicles designed primarily for use on public streets, roads and highways.\" 15 U.S.C. § 2801(12) (emphasis added). Building on those definitions, the PMPA next explains the prohibitions on motor fuel franchisors, with exceptions not relevant here:\n \n \n 22\n [N]o franchisor engaged in the sale, consignment, or distribution of motor fuel in commerce may —\n \n \n 23\n (1) terminate any franchise ... prior to the conclusion of the term, or the expiration date, stated in the franchise; or\n \n \n 24\n (2) fail to renew any franchise relationship... [without following the PMPA's requirements].\n \n \n 25\n 15 U.S.C. § 2802(a).\n \n \n 26\n The parties contest whether Seahorse is engaged in the distribution of \"motor fuel,\" as that phrase is contemplated under the PMPA. Sun Oil contends that the Act was meant to apply only to automotive filling stations or fuel actually used in motor vehicles and that applying the PMPA to a marine supplies distributor would impermissibly broaden its reach. But we must read the statute as written. The record reflects that Sun Oil distributed to Seahorse at least 40,000 barrels of diesel fuel monthly. Under the PMPA's definition of \"motor fuel,\" the fuel at issue need only be \"of a type\" for use by vehicles traversing land. In a sworn statement, Sun Oil's treasurer defined the diesel fuel Sun Oil distributed to Seahorse as that which \"may be used in ships and vessels and by owners of chemical plants that have boilers, and also in trucks and vehicles\" (emphasis added). Because the diesel fuel could have been used for land vehicles, the plain language of the statute covers the relationship at issue here.5 Sun Oil effectively reads \"of a type\" out of the statute, but we are not at liberty to do that. We therefore refuse to legislate a requirement that franchisees prove that the fuel was actually used in a self-propelled land vehicle, instead of a boat, a lawnmower, or any other machine that uses motor fuel to run.\n \n \n 27\n Sun Oil rests its contrary argument on two grounds. The first is that the district court, in defining \"motor fuel,\" included that used by boats as well as trucks, and equated \"the seas\" with \"public streets, roads and highways.\" In so doing, Sun Oil argues, the court improperly relied on the statute's broad remedial purpose and expanded the reach of the statute. As the preceding text indicates, our decision does not rest on this interpretation.\n \n \n 28\n Sun Oil's second contention is that the PMPA's legislative history indicates that \"the Act was designed to govern relationships involving automobiles, not ships.\" It refers to Senate Report No. 95-731, which accompanied the legislation resulting in the PMPA and the introductory language describing it, as providing for\n \n \n 29\n the protection of franchised distributors and retailers of motor fuel and to encourage conservation of automotive gasoline and competition in the marketing of such gasoline by requiring that information regarding the octane rating of automotive gasoline be disclosed to consumers....\n \n \n 30\n S.Rep. No. 95-731, at 1, reprinted in 1978 U.S.C.C.A.N. 873, 873 (1978) (hereinafter S.Rep. No. 95-731). The protection of franchised distributors was the purpose of Title I, which established \"minimum Federal standards governing the termination... of franchise relationships for the sale of motor fuel....\" The requirements regarding gasoline octane ratings were the subject of Title II. This latter Title II reference to automotive gasoline, directed to information disclosure, is not comfortably transferred to Title I to effect a narrowing of the scope of franchise relationships. It may well be that the intervention of Congress was triggered by automotive gasoline franchise relationships. But does the historical origin of legislation trump its unambiguous language describing a broader reach? We think not unless such a literal construction would do violence to the basic policy underlying the statute.\n \n \n 31\n The policy behind Title I was identified in Veracka v. Shell Oil Co., 655 F.2d 445, 448 (1st Cir.1981), when then Judge Breyer wrote: \"The legislative history of the Marketing Act shows that its basic effort to prevent franchise termination reflects a recognition of the disparity of bargaining power between franchisor and franchisee and an effort to prevent coercive or unfair franchisor practice.\"\n \n \n 32\n The Supreme Court has cautioned that \"reference to legislative history is inappropriate when the text of the statute is unambiguous.\" Dep't of Hous. & Urban Dev. v. Rucker, ___ U.S. ___, 122 S.Ct. 1230, 1234, 152 L.Ed.2d 258 (2002). Indeed, \"[w]hen a statute's text is encompassing, clear on its face, and productive of a plausible result, it is unnecessary to search for a different, contradictory meaning in the legislative record.\" Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685, 698 (1st Cir.1994).\n \n \n 33\n Even assuming that the statute could be considered ambiguous, we find no persuasive contrary signal in the legislative history. Of the PMPA's three titles, only Title I is germane here because it is the only one that governs termination of franchises. Its legislative history establishes that Congress passed the statute to remedy \"the disparity of bargaining power\" between franchisors and franchisees, S.Rep. No. 95-731, at 17, reprinted in 1978 U.S.C.C.A.N. at 876, by \"establish[ing] protection for franchisees [of motor fuel] from arbitrary or discriminatory termination or nonrenewal of their franchises.\" Id. at 15, reprinted in 1978 U.S.C.C.A.N. at 874.6 The relationship of Seahorse and Sun Oil comfortably fits within that statement of purpose.\n \n \n 34\n Title II, by contrast, is obviously targeted at automotive gasoline, as opposed to the broader product, motor fuel. Title II requires the testing, certification, and posting of octane ratings for automotive fuel to ensure consumers' ability to compare different types of gasoline. Title II's legislative history is replete with references to cars and everyday consumers: \"automotive gasoline,\" \"gasoline,\" \"gasoline retailer,\" \"motorists,\" and \"motor vehicles.\" Id. at §§ 19-21, 43-45. The phrase \"motor fuel\" is not used at all. That Title II repeatedly uses those terms, while Title I continually refers solely to \"motor fuel,\" suggests that Congress sought broad protection for franchisees of motor fuel.7\n \n \n 35\n In sum, we conclude that the relationship between Seahorse and Sun Oil fits within the plain language of the statute and the legislative history only buttresses that conclusion. It is up to Congress to amend the PMPA's definitional section, and the courts may not usurp that authority.\n \n IV. Jury Instructions\n \n 36\n We review jury instructions de novo, bearing in mind that the district court's \"refusal to give a particular instruction constitutes reversible error only if the requested instruction was (1) correct as a matter of substantive law, (2) not substantially incorporated into the charge as rendered, and (3) integral to an important point in the case.\" United States v. DeStefano, 59 F.3d 1, 2 (1st Cir.1995) (internal quotation marks omitted).\n \n A. Adequacy of Notice\n \n 37\n Sun Oil contends that the district court erred in refusing to instruct the jury on whether the company had given proper notice of termination \"under the circumstances.\" Although masked as a jury instruction challenge, Sun Oil's brief makes clear that this is actually a challenge to the pivotal pre-trial ruling that Sun Oil had not met the notice requirements of the PMPA.8 Under the law of the case doctrine, a party may not revisit a substantive ruling through this type of attack on a jury instruction. See Nat'l Labor Relations Bd. v. Goodless Electric Co., 285 F.3d 102, 107 (1st Cir.2002) (\"[W]hen a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.\") (quoting Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983)). Sun Oil's focus on the jury instruction, rather than on the district court's underlying conclusion, is perplexing. Nevertheless, we will indulge the argument.\n \n \n 38\n Sun Oil contends that its February 17, 1992 letter met the notice provisions \"under the circumstances\" because Seahorse had actual notice of the particulars required by the Act. That letter states in full:\n \n \n 39\n Even though our Supply Agreement expired on September 14, 1990 and we agreed to continue supplying fuel to you under its terms through [M]arch 15, 1991, Seahorse continues to use in its operations our trademark and trade name.\n \n \n 40\n We are hereby requiring you to discontinue using our trademark and trade name to promote your business and we would expect that you immediately honor our request.\n \n \n 41\n The PMPA contemplates strict notice for termination or nonrenewal of a motor fuel franchise:\n \n \n 42\n (a) General requirements applicable to franchisor\n \n \n 43\n Prior to termination of any franchise or nonrenewal of any franchise relationship, the franchisor shall furnish notification of such termination or such nonrenewal to the franchisee who is a party to such franchise or such franchise relationship —\n \n \n 44\n (1) in the manner described in subsection (c) of this section; and\n \n \n 45\n (2) except as provided in subsection (b) of this section, not less than 90 days prior to the date on which such termination or nonrenewal takes effect.\n \n \n 46\n (b) Additional requirements applicable to franchisor\n \n \n 47\n (1) In circumstances in which it would not be reasonable for the franchisor to furnish notification, not less than 90 days prior to the date on which termination or nonrenewal takes effect, as required by subsection (a)(2) of this section —\n \n \n 48\n (A) such franchisor shall furnish notification to the franchisee affected thereby on the earliest date on which furnishing of such notification is reasonably practicable[.] * * *\n \n \n 49\n (c) Manner and form of notification\n \n \n 50\n Notification under this section —\n \n \n 51\n (1) shall be in writing;\n \n \n 52\n (2) shall be posted by certified mail or personally delivered to the franchisee; and\n \n \n 53\n (3) shall contain —\n \n \n 54\n (A) a statement of intention to terminate the franchise or not to renew the franchise relationship, together with the reasons therefor;\n \n \n 55\n (B) the date on which such termination or nonrenewal takes effect; and\n \n \n 56\n (C) the summary statement [of available remedies and relief prepared by the Secretary of Energy].\n \n \n 57\n 15 U.S.C. § 2804.\n \n \n 58\n The PMPA's notice provisions mandate strict compliance and thus cannot be selectively followed by the franchisor. See 15 U.S.C. § 2804(a) (\"[T]he franchisor shall furnish notification....\"); S.Rep. No. 95-731, at 39, reprinted in 1978 U.S.C.C.A.N. at 897 (\"[N]otification ... must be provided....\") (emphasis added in both); see also Thompson v. Kerr-McGee Refining Corp., 660 F.2d 1380, 1390 (10th Cir.1981) (mandating strict compliance). But cf. Avramidis v. Arco Petroleum Prods. Co., 798 F.2d 12, 17 (1st Cir.1986) (declining to require strict notice of specific date of termination where the franchisees transformed a definite termination date into a later unspecified date by securing a preliminary injunction). Our precedent, which tempers strict compliance only for the most trivial of departures, is consistent with the notice provisions' underlying purpose of protecting franchisees from arbitrary or unanticipated terminations. Failure to follow the rules leaves the franchisee without clear notice.\n \n \n 59\n Sun Oil concedes that the February 17 letter did not \"expressly notify Seahorse of the reasons for termination,\" and that the company neither personally delivered that letter nor sent it via certified mail. The letter also did not contain the summary statement, though Sun Oil seems to argue that its prior provision of the statement to Seahorse at the end of the trial franchise agreement obviated its duty to provide it again. In short, section 2804(c) contains five specific requirements. Three of the five were not met. Only the requirements of a writing and that of a date of termination (\"immediately\") could be said to have been met.\n \n \n 60\n Sun Oil posits that imposing a strict notice requirement would elevate form over substance because Seahorse was already on notice as to why Sun Oil intended to terminate the relationship. The critical flaw in this argument is that, despite Sun Oil's past complaints to Seahorse (e.g., about nonpayment and overextension of credit), its continuing relationship with Seahorse led to the permissible inference that Sun Oil did not consider any of Seahorse's transgressions grounds for termination.9 There is a stark difference between complaints by one of the parties in a long-term business relationship and that party's intent to terminate the relationship. Even if Seahorse was delinquent, it justifiably relied on Sun Oil's inaction.\n \n \n 61\n A review of the caselaw on which Sun Oil relies further confirms the weakness of its position. As discussed supra, Sun Oil's February 17 letter failed in multiple respects to comply with the PMPA's notice requirements. In asserting that its prior interactions with Seahorse amounted to a de facto notice of its intent to terminate the relationship, Sun Oil cites numerous district court cases that dealt only with a franchisor's failure to include the Secretary of Energy's summary statement of available remedies from the Federal Register. See, e.g., Shell Oil Co. v. A.Z. Servs. Inc., 990 F.Supp. 1406, 1416 (S.D.Fla.1997) (failure to include summary statement did not render notice invalid); Grotemeyer v. Lake Shore Petro Corp., 749 F.Supp. 883, 889 (N.D.Ill.1990) (same); Martin v. Texaco, Inc., 602 F.Supp. 60, 63 (N.D.Fla.1985) (concluding that the jury had to determine whether a franchisor's failure to include the summary statement deprived the franchisee of notice as contemplated by the PMPA); Brown v. Magness Co., 617 F.Supp. 571, 574 (S.D.Tex.1985) (no inadequate notice for failure to attach summary statement and for delivering notice to the franchisee's attorney, rather than the franchisee).\n \n \n 62\n Sun Oil's other cited cases are simply inapposite. In Brown v. American Petrofina Mktg., 555 F.Supp. 1327, 1335 (M.D.Fla.1983), the court noted \"the very close question\" of whether actual notice can trump PMPA notice but declined to resolve the issue. In Frisard v. Texaco, Inc., 460 F.Supp. 1094 (E.D.La.1978), decided soon after the PMPA's passage but before the summary statement was published in the Federal Register, the court dealt with nearly perfect compliance. In that case, the notice was in \"writing, posted by certified mail, stated both the intention not to renew as well as the effective date of nonrenewal, cited the ... reason for nonrenewal, and referred to the future receipt of the summary statement.... [The] letter was not only timely, but complied with the PMPA in all respects.\" Id. at 1100 (emphasis added).\n \n \n 63\n Similarly, Desfosses v. Wallace Energy, Inc., 836 F.2d 22 (1st Cir.1987), the only First Circuit case cited by appellant, is easily distinguishable. In Desfosses, the franchisee argued that the franchisor failed to comply with section 2802(c)(4) (a section inapplicable here) by failing to notify the franchisee of the requirements of an underlying lease for the franchisee's property. Although we suggested that in certain circumstances actual knowledge of a franchisor's reasons for termination might trump strict compliance, we concluded that the franchisor had, in fact, given proper notice under section 2802(c)(4). Id. at 27.\n \n \n 64\n We conclude that the district court's refusal to instruct the jury on whether Sun Oil had given proper notice \"under the circumstances\" was correct as a matter of law. The evidence plainly shows that Sun Oil failed to follow the strictures of the PMPA's notice requirements, even if they were read broadly. Accordingly, we find no merit to this jury instruction challenge.\n \n B. Grounds for Termination\n \n 65\n Sun Oil contests the district court's refusal to instruct the jury on whether the company had sufficient grounds to terminate the franchise under the PMPA. Sun Oil did not specifically point to the contested instruction, but we assume that it is proposed instruction number eighteen, entitled \"PMPA — Grounds for Termination.\"\n \n \n 66\n As an initial matter, Sun Oil did not adequately preserve its objection to this instruction. Rule 51 of the Federal Rules of Civil Procedure states that an objection to a jury instruction is waived unless the party \"stat[es] distinctly the matter objected to and the grounds of the objection.\" Fed.R.Civ.P. 51. Here, the entire objection stated:\n \n \n 67\n With respect to proposed [instructions] 14, 15, 16, 17, 18, and 19, ... [w]e contend that the instructions should be charged to the jury because they correctly state the elements of the claims and defenses available under the law purportedly applicable to this case.\n \n \n 68\n We further contend that the failure to instruct the jury in this fashion, based on the Court's pre-trial rulings ... is incorrect because it precludes defendant from challenging in the trial of this case the Court's finding that the only issues to be tried were whether Seahorse abandoned the relationship with [Sun Oil] or whether [Sun Oil] terminated the relationship and the damages caused to the plaintiff in the case of a termination or nonrenewal.\n \n \n 69\n So [ ] stated, the issues preclude[ ] trying the issue as to whether the PMPA was even implicated in this case by finding as proven that the fuel sold by defendant to plaintiff in the relationship was motor fuel despite the definition provided in the PMPA. That even if Seahorse failed to comply with provisions of the alleged franchise and caused events relevant to the relationship ... as a result of which termination or nonrenewal of the franchise was reasonable, that [Sun Oil] did not provide sufficient notice under the act to rely on those breaches and events to preclude liability.\n \n \n 70\n The first two paragraphs include boilerplate language that only restates the district court's framing of the case and does not go to the substance of the contested instructions. And the oblique nature of the third paragraph certainly fails to \"state distinctly the matter objected to,\" as required by Rule 51. We thus conclude that the objection does not meet Rule 51's standard, and we review only for plain error. Under that standard, Sun Oil must prove \"(1) that there was error, (2) that it was plain, (3) that it likely altered the outcome, and (4) that it was sufficiently fundamental to threaten the fairness or integrity or public reputation of the judicial proceeding.\" Gray v. Genlyte Group, 289 F.3d 128, 134 (1st Cir.2002) (quoting United States v. Olano, 507 U.S. 725, 735-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)).\n \n \n 71\n The court rejected the instruction as inconsistent with its pre-trial ruling that liability would attach if the jury found a termination, regardless of the grounds, because of the inadequate notice. Although the grounds for termination could have been relevant to the jury's assessment of damages, by indicating the reasonable period of time for future lost profits, the actual language of the instruction makes clear that it was yet another attempt to ask the jury to re-assess the district court's pre-trial rulings on liability. The district court's refusal to instruct the jury in this vein was correct as a matter of law.\n \n V. Expert Testimony of Heidie Calero\n \n 72\n Sun Oil next argues that Seahorse's damages expert, Heidie Calero, proffered inherently unreliable evidence that should have been excluded by the district court under its Daubert/Kumho Tire gatekeeping function. See Kumho Tire, 526 U.S. at 141, 119 S.Ct. 1167; Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786.\n \n \n 73\n Rule 702 of the Federal Rules of Evidence provides the backdrop for any consideration of expert testimony. That rule provides:\n \n \n 74\n If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.\n \n \n 75\n Fed.R.Evid. 702. The Supreme Court's decisions in Kumho Tire and Daubert guide a district court in determining how to assess the admissibility of such expert testimony. Pursuant to Daubert, the district court must perform a gatekeeping function by preliminarily assessing \"whether the reasoning or methodology underlying the testimony is scientifically valid and [ ] whether that reasoning or methodology properly can be applied to the facts in issue.\" 509 U.S. at 592-93, 113 S.Ct. 2786. Several factors may assist the district court in making its determination: whether the theory/technique can be and has been tested; whether it has been subjected to peer review and publication; the known or potential rate of error; and the level of the theory/technique's acceptance within the relevant scientific community. Id. at 593-94, 113 S.Ct. 2786. Although the approach is flexible by its nature (after all, expert testimony and the peculiar facts of each case so demand), the overarching concern is on the \"evidentiary relevance and reliability\" of the proposed testimony. Id. at 595, 113 S.Ct. 2786.\n \n \n 76\n In Kumho Tire, the Court extended its holding in Daubert and held that the gatekeeping function applies to technical and other specialized knowledge in addition to scientific testimony. Kumho Tire, 526 U.S. at 141, 119 S.Ct. 1167. The Court stressed that the district court must have \"considerable leeway\" in both \"how to determine reliability\" and \"its ultimate conclusion.\" Id. at 152-53, 119 S.Ct. 1167. The ultimate credibility determination and the testimony's accorded weight are in the jury's province. See Mitchell v. United States, 141 F.3d 8, 16-17 (1st Cir.1998). With these general principles in mind, we now consider whether the district court abused its discretion in admitting Calero's testimony. See Kumho Tire, 526 U.S. at 152, 119 S.Ct. 1167 (citing Gen. Elec. Co. v. Joiner, 522 U.S. 136, 138-39, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997)).\n \n A. The tax calculations\n \n 77\n Sun Oil first contends that Calero's testimony should have been excluded because her damages calculation was flawed. According to Sun Oil, Calero neglected to take into account Seahorse's failure to pay various taxes. It argues that if Seahorse had properly accounted for its tax obligations, its profits (and thus, damages) would have been minimal at best. Sun Oil inexplicably neither pinpoints the disputed testimony nor discusses the actual figures that allegedly would have undercut Calero's testimony. Our review of Calero's testimony provides no support for Sun Oil's claim: Calero testified that she considered the provisions of Seahorse's tax exemption decree in conjunction with its historical sales.10 From that analysis, Calero concluded that approximately fifty percent of the sales were for tax exempt vessels,11 and that the remainder of the sales would require an assessment of forty-two percent, the normal tax rate. Calero used those figures to conclude that, even with its tax obligations, Seahorse would have carried a profit in each of fiscal years 1992 through 1996.\n \n \n 78\n Given Calero's plain testimony and Sun Oil's failure to meaningfully point out any discrepancy in the record, we cannot conclude that the district court abused its discretion in allowing Calero's testimony. Moreover, to the extent that Sun Oil sought to prove that Calero's tax calculations were flawed, it followed the proper course of action by rebutting that testimony with its own expert. See Daubert, 509 U.S. at 596, 113 S.Ct. 2786 (\"Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.\"). The well known adage that reasonable people can disagree applies here full force. That the jury found in Seahorse's favor does not mean that the district court erred in admitting the testimony.\n \n B. Future Damages\n \n 79\n Calero's forecast of damages over a ten-year period, however, is more troublesome. Sun Oil contends that the ten-year period was overly speculative because the initial agreement was for only a one-year period, the longest renewal period was for four months, and the entire PMPA relationship lasted only two and one-half years. It further maintains that due to Seahorse's misconduct, there was no reasonable basis to believe that the agreement would extend so far into the future. See, e.g., Irvine v. Murad Skin Research Labs., 194 F.3d 313, 321 (1st Cir.1999) (\"Absent adequate factual data to support the expert's conclusions his testimony was unreliable.\"); Wallace Motor Sales, Inc. v. American Motors Sales, 780 F.2d 1049, 1062 (1st Cir.1985) (\"[T]here is a distinction between proof which allows the jury to make a `just and reasonable inference' of damages and proof which only provides a basis for `pure speculation or guesswork.'\") (quoting Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 264, 66 S.Ct. 574, 90 L.Ed. 652 (1946)); see also Boucher v. U.S. Suzuki Motor Corp., 73 F.3d 18, 22 (2d Cir.1996) (\"Admission of expert testimony based on speculative assumptions is an abuse of discretion.\").\n \n \n 80\n We need not decide whether this time period was unduly speculative. Given the jury's ultimate award, the district court's admission of Calero's testimony would have been harmless error at best. The jury evidently grasped the disparity between Calero's long-term forecast of $10.7 million and the reality of Seahorse's situation, and discounted Calero's forecast accordingly by awarding only $800,000 in lost profits and $2.2 million in going concern damages.12 Indeed, the jury's award not only fell far short of the ten-year estimate, but of the five-year estimate and that of the four years following the close of Seahorse's operations as well. Therefore, although the district court may have erred by allowing Calero to forecast for ten years, it would have been only harmless error, and is therefore not a basis for granting a new trial. The district court did not err in admitting the balance of Calero's testimony because Calero took into account Seahorse's historical performance, in conjunction with the performance of others in the industry and the overall Puerto Rico economy, in calculating Seahorse's damages.13\n \n VI. Denial of Motion for New Trial\n \n 81\n A district court's refusal to grant a new trial is reviewed only for manifest abuse of discretion. See Diefenbach v. Sheridan Transp., 229 F.3d 27, 32 (1st Cir.2000); United States v. Dumas, 207 F.3d 11, 14 (1st Cir.2000). The court may order a new trial only \"if the verdict is so clearly against the weight of the evidence as to amount to a manifest miscarriage of justice.\" Cigna Fire Underwriters Co. v. MacDonald & Johnson, 86 F.3d 1260, 1263 (1st Cir.1996). Sun Oil challenges both the liability and damages findings of the jury. We cannot find merit in either challenge.\n \n A. Liability\n \n 82\n The first question the jury faced was whether Sun Oil terminated, or Seahorse voluntarily abandoned, the franchise relationship. Seahorse's theory was that Sun Oil's unilateral change in pricing structure and subsequent actions, culminating in Sun Oil's February 17, 1992 letter, amounted to an illegal termination. Sun Oil attacks the jury finding of termination by arguing that the evidence shows that it had grounds to terminate its relationship with Seahorse, and that, in any event, Seahorse's mismanagement and failure to adjust to changing market conditions forced it to abandon its relationship with Sun Oil in January, 1992.\n \n \n 83\n Sun Oil argues that the evidence overwhelmingly demonstrated that Seahorse's failure to respond to the volatile oil market and to the change in pricing structure forced the franchisee to voluntarily abandon the relationship. Sun Oil cites to Seahorse's \"Analisis de Venta Isla y Barcos\" — its invoice/sales register — to argue that Seahorse's fuel sales actually increased during the two months after the new pricing structure went into effect. Sun Oil thus argues that the jury had no basis for concluding that the change in pricing formula brought on Seahorse's eventual demise; instead, the only conclusion permitted by the evidence is that Seahorse's problems were fully attributable to Seahorse's own mismanagement.\n \n \n 84\n The jury heard evidence, however, that the change in pricing formula caused irreparable harm. Seahorse elicited testimony that Sun Oil set out to destroy Seahorse's business by denying Seahorse the benefit of weekly price protection, while offering it to Seahorse's customers. Thus, Seahorse's customers began purchasing directly from Sun Oil at more favorable prices. This, Seahorse argues, led to its decline and eventual demise. Moreover, although Seahorse's sales had increased for two months after the pricing structure change, the overall sales during that period had dropped markedly from the prior year.\n \n \n 85\n Having reviewed the evidence, we cannot say that the district court abused its discretion in refusing to grant a new trial on liability. The evidence established that the jury reasonably could have concluded that beginning with the change in pricing structure, and continuing with its refusal to allow Seahorse to purchase fuel on credit, Sun Oil took steps to end its relationship with Seahorse, without following the PMPA's requirements.\n \n B. Damages\n \n 86\n Sun Oil also disputes the district court's refusal to grant a new trial on damages, arguing that Seahorse failed to establish through reliable, non-speculative evidence, that Sun Oil caused it to suffer any damages. First, Sun Oil says that there was no evidence that Seahorse was profitable. We have already concluded that Seahorse's expert, Heidie Calero, presented admissible evidence of Seahorse's profits. Sun Oil contested that evidence with testimony from its own expert, Carlos Baralt, who testified that Seahorse would not have been profitable under his assessment of Seahorse's various tax obligations. The jury's award of only a fraction of Calero's estimate confirms that the jury took into account the testimony of both experts in making its determination.14\n \n \n 87\n Lastly, Sun Oil asserts that the damages award is not supported by the evidence because Seahorse's financial records contained some incorrect data. Specifically, it challenges the reliability of Seahorse's Analisis de Venta Isla y Barcos. Sun Oil does not explain the alleged deficiencies, but Seahorse asserts that Sun Oil's claim rests on the incorrectness or absence of approximately 170 of the Analisis's 11,000 transactions. At trial, after Seahorse was alerted to the missing transactions, Calero recalculated the damages and lowered her estimate by $600,000. Sun Oil did not respond to this argument in its reply brief. It seems to us that Calero's recalculation corrected any supposed deficiencies in the initial assessment of the records.\n \n VII. Seahorse's Mitigation of Damages\n \n 88\n Finally, we turn to Seahorse's cross-appeal, in which it contends that the district court erred in denying its motion to amend or alter judgment regarding its failure to mitigate damages. As the district court noted, Seahorse's motion was technically a renewed motion for judgment after trial under Fed.R.Civ.P. 50(b). The district court's denial of a Rule 50(b) motion must be sustained \"unless the evidence, together with all reasonable inferences in favor of the verdict, could lead a reasonable person to only one conclusion, namely, that the moving party was entitled to judgment.\" PH Group Ltd. v. Birch, 985 F.2d 649, 653 (1st Cir.1993). Seahorse cannot meet that high burden.15\n \n \n 89\n Seahorse first contends that Sun Oil never meaningfully presented the mitigation of damages defense, and thus waived it. The record, however, shows otherwise. Sun Oil initially raised Seahorse's failure to mitigate damages as an affirmative defense in its answer to the complaint, and again raised it in the parties' proposed pre-trial order. At trial, Sun Oil questioned Alberto Dapena, Seahorse's president, as to various alternatives Seahorse could have taken to stave off Seahorse's close of operations. We thus conclude that Sun Oil pressed this argument before and during trial.\n \n \n 90\n As to the substance of its argument, Seahorse points to Dapena's testimony that after Sun Oil changed the pricing formula, he attempted to locate other fuel suppliers to ensure Seahorse's continued operation. Dapena also requested that Sun Oil release part of a letter of credit that it held so that Seahorse would be able to buy fuel from other suppliers. Finally, Seahorse asserts, it continued to sell Sun Oil's fuel until Sun Oil terminated that right in the February 17 letter.\n \n \n 91\n Notwithstanding Dapena's actions, we agree with Sun Oil that it presented sufficient evidence to sustain the jury's mitigation finding. On cross-examination, Sun Oil questioned Dapena about a February 28, 1992 memorandum he had written to Seahorse's board of directors, in which he placed the blame for Seahorse's demise squarely on Sun Oil. In that writing, Dapena proposed that a number of alternatives were available to Seahorse to limit its damages. On cross examination, Sun Oil garnered that Seahorse chose not to take action on them. For example, Seahorse could have temporarily closed the company in order to reorganize or could have filed for bankruptcy, with or without intent to resume operations at a later time. We thus conclude that the district court did not err in leaving intact the jury's determination that Seahorse failed to mitigate its damages.\n \n \n 92\n \n Affirmed. Seahorse to recover one half of its costs.\n \n \n \n \n Notes:\n \n \n 1\n \"Unbranded\" and \"branded,\" terms of art in the petroleum industry, refer to whether fuel is sold under the trademark of the refiner\n \n \n 2\n Sun Oil argues that the September 1989 agreement reflected an intentional change from supplying fuel for use by vehicles on land (and thus was covered by the PMPA) to supplying fuel for marine uses (and thus allegedly was not subject to the PMPA)\n The record reveals no support for this contention. Although Sun Oil attributes the termination of the trial franchise agreement to Seahorse's lack of interest in serving land use vehicles, the notice of termination under the PMPA gave as the sole reason for termination the explanation that the agreement \"was drafted only to cover a trial relationship.\" There is no evidence of any discussion concerning land versus marine end use. Indeed, Sun Oil wrote merely that a new agreement would be negotiated, involving a new term, agreed upon price changes, and a new termination provision, all subject to the PMPA.\n Contrary to Sun Oil's argument that the new agreement covered no motor fuels for automotive use other than diesel fuel — impliedly suggesting fuels different from those in the earlier agreement — the fuels and the quantities were identical. In fact, the two contracts are substantially identical in all respects, with the following exception. In place of a clause specifically referencing the PMPA, there was the more comprehensive clause quoted in the text. Neither party has contended that there was any discussion concerning this substitution.\n \n \n 3\n The parties hotly contest the impact of this change. Sun Oil posits that it should have made Seahorse more profitable, but Seahorse asserts that it negatively and irreparably damaged its business\n \n \n 4\n The jury concluded that Seahorse was damaged in the amount of $3 million, but that Seahorse had failed to mitigate $500,000 of those damages\n \n \n 5\n Diesel fuel was only one of several types of fuel Sun Oil sold to Seahorse. However, the amount of diesel fuel was substantial in comparison to the other types. Under the September 1989 agreement, for example, Sun Oil agreed to sell to Seahorse on a monthly basis at least 40,000 barrels of diesel, 5,000 barrels of kerosene, and 15,000 barrels each of Nos. 5 and 6 fuel oil. Because diesel comprised more than half of the sales, our conclusion is not tantamount to the tail wagging the dog. We thus conclude that subject matter jurisdiction exists over the franchise agreement as a whole\n \n \n 6\n To be sure, the legislative history includes as valid grounds for termination, a franchisor's withdrawal from a relevant geographic market area, S.Rep. No. 95-731, at 34, and \"the repeated failure by the franchisee to operate the marketing premises in a clean, safe, and healthful manner.\"Id. at 35. These isolated illustrations, even if construed to refer only to land-oriented operations, are part of a non-exclusive list of grounds for termination.\n \n \n 7\n Title III adds nothing to our analysis. Its only purpose is to direct the Secretary of Energy to study the practice of \"subsidization of motor fuel marketing operations with funds or services derived from other petroleum-related operations.\" S.Rep. No. 95-731, at 16\n \n \n 8\n Although Sun Oil devotes several pages of briefing to this challenge, it neither recites nor points us to the specific contested instruction. That omission reinforces the transparency of its jury instruction challenge\n \n \n 9\n For example, Sun Oil points to a letter it sent to Seahorse regarding checks that had been returned for insufficient funds. Nothing in the January 1992 letter suggests that Sun Oil considered the violation to be critical to the continuance of the business relationship. Indeed, the letter concludes: \"We would appreciate if you contact your bank and resolve this issue today. It is over a week that these checks were returned by the bank and not replaced.\"\n \n \n 10\n Calero reviewed more than 16,000 daily invoices over a period of three years to assess Seahorse's average tax exempt sales\n \n \n 11\n According to Calero's testimony, the vessels were only ninety percent tax exempt, leaving a ten percent tax liability\n \n \n 12\n As noted above, the jury concluded that Seahorse failed to mitigate $500,000 of its damages\n \n \n 13\n We also reject Sun Oil's argument that Calero relied on erroneous assumptions in calculating damages. According to Sun Oil, Calero assumed that Sun Oil was obligated to give Seahorse preferential fuel prices and that Seahorse was the only distributor that was allowed to use the Sun Oil logo and trademark. Calero testified, however, that her estimate of damages relied neither on a finding that Seahorse was entitled to the lowest price nor that Seahorse was Sun Oil's exclusive distributor\n Sun Oil also challenges Calero's damage calculations for fiscal year 1991-92. The company provided neither meaningful record references nor caselaw in support of this argument, and it therefore is waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990) (\"[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.\").\n \n \n 14\n Also, Sun Oil argues that the damages were speculative because there was no evidence that the relationship would have lasted as long as Calero had estimated. As we already have concluded, however, Calero's long-term forecast was inconsequential because the jury clearly did not adopt it\n \n \n 15\n Sun Oil asserts that Seahorse has waived its mitigation claim because it did not object to the jury instruction regarding mitigation of damages immediately after the jury was charged, as required by Fed.R.Civ.P. 51. Seahorse points out, however, that the challenge was not only to the jury instruction, but also to the district court's ultimate finding under Fed.R.Civ.P. 50 that there was sufficient evidence to sustain the jury's finding. Because we conclude that the mitigation award was adequately supported by the evidence, we do not consider whether Seahorse waived its right to appeal\n \n \n ",
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| First Circuit | Court of Appeals for the First Circuit | F | USA, Federal |
2,594,530 | Robert D. Potter | 1987-09-21 | false | frockt-v-goodloe | Frockt | Frockt v. Goodloe | Marvin J. FROCKT, Plaintiff, v. Max H. GOODLOE, Jr., Max H. Goodloe, Carl S. Albis, Sr., Carl S. Albis, Jr., Carl S. Albis, Jr., D/B/A A.G.A. Group, a Virginia General Partnership D/B/A the Comfort Inn of Dunn, North Carolina, Defendants | Gary S. Hemric, J. Mitchell Aberman, Mark T. Calloway, James, McElroy & Diehl, P.A., Charlotte, N.C., for plaintiff., Robert C. Bode, Bode & Dickinson, Richmond, Va., Thomas L. Nesbit, Womble, Carlyle, Sandridge & Rice, Winston-Salem, N.C., for defendants. | null | null | null | null | null | null | null | null | null | null | 1 | Published | null | <parties id="b243-3">
Marvin J. FROCKT, Plaintiff, v. Max H. GOODLOE, Jr., Max H. Goodloe, Carl S. Albis, Sr., Carl S. Albis, Jr., Carl S. Albis, Jr., d/b/a A.G.A. Group, a Virginia General Partnership d/b/a the Comfort Inn of Dunn, North Carolina, Defendants.
</parties><br><docketnumber id="b243-5">
No. C-C-86-344-P.
</docketnumber><br><court id="b243-6">
United States District Court, W.D. North Carolina, Charlotte Division.
</court><br><decisiondate id="b243-9">
Sept. 21, 1987.
</decisiondate><br><attorneys id="b243-20">
Gary S. Hemric, J. Mitchell Aberman, Mark T. Calloway, James, McElroy
<em>
&
</em>
Diehl, P.A., Charlotte, N.C., for plaintiff.
</attorneys><br><attorneys id="b243-21">
Robert C. Bode, Bode
<em>
&
</em>
Dickinson, Richmond, Va., Thomas L. Nesbit, Womble, Carlyle, Sandridge & Rice, Winston-Salem, N.C., for defendants.
</attorneys> | [
"670 F. Supp. 163"
]
| [
{
"author_str": "Potter",
"per_curiam": false,
"type": "010combined",
"page_count": null,
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"author_id": 2609,
"opinion_text": "\n670 F. Supp. 163 (1987)\nMarvin J. FROCKT, Plaintiff,\nv.\nMax H. GOODLOE, Jr., Max H. Goodloe, Carl S. Albis, Sr., Carl S. Albis, Jr., Carl S. Albis, Jr., d/b/a A.G.A. Group, a Virginia General Partnership d/b/a the Comfort Inn of Dunn, North Carolina, Defendants.\nNo. C-C-86-344-P.\nUnited States District Court, W.D. North Carolina, Charlotte Division.\nSeptember 21, 1987.\nGary S. Hemric, J. Mitchell Aberman, Mark T. Calloway, James, McElroy & Diehl, P.A., Charlotte, N.C., for plaintiff.\nRobert C. Bode, Bode & Dickinson, Richmond, Va., Thomas L. Nesbit, Womble, Carlyle, Sandridge & Rice, Winston-Salem, N.C., for defendants.\n\nMEMORANDUM OF DECISION\nROBERT D. POTTER, Chief Judge.\nTHIS MATTER came on to be heard before this Court on August 31, 1987, on Defendants' Motions for summary judgment and for partial summary judgment. The undisputed facts are that Plaintiff, a traveling jewelry salesman, checked into a Comfort Inn (\"Inn\") owned by a partnership of which Defendants are all of the general partners. Plaintiff had in his possession a jewelry sample case which had the appearance of a common attaché case. The case contained approximately $150,000 worth of gems and jewelry. (Defendants have not admitted the value of the jewelry contained in the case; however, there is no evidence to controvert Plaintiff's evidence of the value of the jewels, and it is immaterial for the purposes of this Order.)\nPlaintiff requested that the case be placed in a safe provided by the Inn. The desk clerk accepted the case for safekeeping, agreeing either to put the case in a safe or to place the case in a closet wherein was kept the Inn's petty cash. Plaintiff did not inform the clerk that jewels were contained in the case or that the case was worth a specific dollar amount; however, Plaintiff did state that the case was \"very valuable.\" The clerk did not offer Plaintiff a receipt for the case, so Plaintiff wrote out, in duplicate, his own *164 receipt. One copy was attached to the case; Plaintiff retained the other.\nWhen Plaintiff called for the case the next day, it could not be located. The case was never recovered. Plaintiff brought suit seeking to recover from the Inn the full value of the case and its contents plus the profits Plaintiff lost as a result of not having his sample case for approximately two weeks.\nThe jewelry in the case was owned either by Plaintiff's employer, Buddy Frockt & Associates, or by his employer's partner, Rothblum & Mire, Inc. Under the terms of a Consignment Agreement, executed by and between Plaintiff and his employer when the jewels were given to Plaintiff, Plaintiff remained responsible for the jewels while they were in his possession. Because the jewels were insured while they were in Plaintiff's possession, Plaintiff was actually called upon to pay his employer only approximately $6,300.00, representing the deductible on the insurance policy plus incidental expenses, as a result of the jewels being lost while in Plaintiff's possession.\nDefendants moved for summary judgment on the ground that Plaintiffs and the Inn contractually agreed to exonerate the Inn from any liability whatsoever for damage to or loss of Plaintiff's property while he was a guest at the Inn. Defendants also moved for partial summary judgment, contending that Plaintiff was not the proper party to recover for the full value of the jewels and that Plaintiff could not recover for lost profits resulting from his not having the sample case.\nHaving examined the evidence and arguments presented by both parties, this Court is of the opinion that Defendants are not entitled to summary judgment on the basis of the alleged exculpatory agreement, but Defendants are entitled to a partial summary judgment in their favor on the question of Plaintiff's recovery of lost profits.\n\nI. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT\nAn innkeeper's duties and liabilities to its guests are governed by N.C.Gen.Stat. §§ 72-1 to 72-7 (1985). Concerning the safekeeping of valuables, N.C.Gen.Stat. § 72-3 states:\nIt is the duty of innkeepers, upon the request of any guest, to receive from said guest and safely keep money, jewelry and valuables to an amount not exceeding five hundred dollars ($500.00); and no innkeeper shall be required to receive and take care of any money, jewelry or other valuables to a greater amount than five hundred dollars ($500.00): Provided, the receipt given by said innkeeper to said guest shall have plainly printed upon it a copy of this section. No innkeeper shall be liable for the loss, damage or destruction of any money or jewels not so deposited.\nDefendants urge that § 72-3 indicates that the Inn was free to condition its acceptance of Plaintiff's sample case upon Plaintiff's agreement to hold the Inn harmless for loss or damage thereto. Defendants' argument would be persuasive, absent two facts: (1) the receipt given Plaintiff by the Inn (actually, given the Inn by Plaintiff) did not \"have plainly printed upon it a copy of this section,\" as § 72-3 directs; and (2) the evidence is uncontradicted that the Inn did not display in the office a copy of §§ 72-1 to 72-7, as § 72-6 contemplates:\n§ 72-6. Copies of this Article to be posted.\nEvery innkeeper shall keep posted in every room of his house occupied by guests, and in the office, a printed copy of this Article and of all regulations relating to the conduct of guests. This Chapter shall not apply to innkeepers, or their guests, where the innkeeper fails to keep such notices posted.\n\n(Emphasis added). The consequences of failing to post notice as required by § 72-6 are clear: rather than benefiting from the protection afforded by the statute, the innkeeper must look to the common law to define its duties and liabilities. Holstein v. Phillips & Sims, 146 N.C. 366, 369-70, 59 S.E. 1037 (1907) (\"[Predecessor to § 72-6] not having been complied with by defendants [innkeepers], the principle of the common law obtains....\").\n*165 The common law rule in North Carolina is that the innkeeper is strictly liable for the loss of a guest's property, except in a few rare instances, such as where such loss is occasioned by the guest's own negligence. Quinton v. Courtney, 2 N.C. (1 Hawy.) 40, 42 (1793) (innkeeper liable for loss of money contained in saddlebags deposited with innkeeper's servant). See also Neal v. Wilcox, 49 N.C. (4 Jones) 146, 147 (1856) (stating rule that innkeepers are considered to be insurers of guests' property, regardless of negligence).\nDefendants argue that, whatever may be the general rule of liability, the Inn is not liable to Plaintiff in this case because Plaintiff agreed that the Inn should not be held responsible for Plaintiff's property. This purported agreement is in the form of a statement printed beneath the line for Plaintiff's signature on the Inn's registration card. It reads:\nNOTICE TO GUEST: YOU AGREE TO CHECK OUT AT DESIGNATED TIME. THIS PROPERTY IS PRIVATELY OWNED AND THE MANAGEMENT RESERVES THE RIGHT TO REFUSE SERVICE TO ANYONE, AND WILL NOT BE RESPONSIBLE FOR ACCIDENTS OR INJURY TO GUESTS OR FOR LOSS OF MONEY, JEWELRY, OR VALUABLES.\nPlaintiff contends that this \"agreement\" is not an agreement at all, but rather is a self-serving statement on the Inn's part, without legal effect. It is not necessary to resolve the issue of the legal status of the disclaimer, for even assuming that it is a valid contract between the parties to limit the Inn's liability, it is void as against North Carolina public policy.\nDefendants are correct in asserting that North Carolina law recognizes the validity of contractual limitations on liability in certain circumstances. See, e.g., Miller's Mut. Fire Ins. Assoc. v. Parker, 234 N.C. 20, 23, 65 S.E.2d 341 (1951) (\"in an ordinary mutual benefit bailment, ... the bailee may relieve himself from the liability imposed on him by the common law so long as the provisions of such contract do not run counter to the public interest\"). If however, the public interest demands that such contracts not be allowed, then contractual limitations on liability will not be enforced. Id.\nThis Court perceives several problems with Defendants' argument that the attempted limitation of liability is effective. First, while limitations on liability in common mutual benefit bailments are accepted, see Miller's Mutual, id., such limitations are not allowed where the bailee holds itself out as a professional keeper of property. Id. Additionally, the rule that parties may contract as they please applies where the contract releases one party from \"liability caused by his ordinary negligence in the performance of a legal duty arising out of a contractual relation,\" Hall v. Sinclair Refining Co., 242 N.C. 707, 709, 89 S.E.2d 396 (1955); but, we have here a situation where one party is attempting to contract away its strict liability (not dependent upon negligence), which is imposed by law.\nEven assuming that the rule of Hall applies to the strict liability situation presented in the case at bar, it is evident that the complete exoneration of the innkeeper contained in the disclaimer is repugnant to North Carolina public policy. As the court in Neal v. Wilcox, 49 N.C. at 147, declaimed, \"on the ground of public policy, common carriers and inn-keepers are treated as insurers, and are liable, except `for the acts of God, and the enemies of the State,' without proof of negligence.\" To allow the Inn to offer its services and accommodations to travelers and accept their remuneration therefor, and yet exempt itself from any requirement of answering to its guests for the safety of their persons and property, is unconscionable.\nWhile North Carolina courts have not examined directly the validity of an innkeeper's absolution from liability in the light of public policy, there is guidance in the situation of a common carrier, whose liability to its customers at common law was equivalent with that of an innkeeper. See Neal, 49 N.C. at 147, and Prosser & Keeton on the Law of Torts 482-83 (5th ed. 1984). In Gas House, Inc. v. Southern Bell Telephone Co., 289 N.C. 175, 183-84, *166 221 S.E.2d 499, partially overruled on other grounds, State v. Southern Bell, 307 N.C. 541, 547, 299 S.E.2d 763 (1983), the court stated that the rule against allowing a common carrier or other public utility to enforce a contract exonerating it from liability in connection with its public service is rooted in the public's right to procure the service, with full liability, for a reasonable charge. The Gas House court allowed the particular limitation of liability involved, however, because it related to the phone company's additional service of providing advertising in the \"yellow pages,\" rather than to the company's public service function as a communications common carrier. 289 N.C. at 184.\nThe common law policy of strict liability indeed may be harsh, as the North Carolina General Assembly recognized when it enacted Ch. 72. Had the Inn wished to alleviate the draconian effect of the common law rule, it had only to follow the dictates of the statute by posting the notice required therein. This it did not do; consequently, it will not be heard to complain that the rule is untenable.\n\nII. DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT\nDefendants maintain that Plaintiff may recover only so much of the value of the sample case contents for which he was directly liable to the owner, Plaintiff's employer. Both parties have addressed this issue in terms of an insured's right to sue for the full value of his loss, despite his insurer's having paid the insured a portion of such loss. The insurance policy on the jewels is not of record. From the record, moreover, it appears that the policy is immaterial to the issue of Frockt's right to recover all of his claimed damages.\nThe record reveals that Plaintiff was in possession of the jewels on consignment from their owner. Plaintiff therefore was a bailee of the jewels, and may recover in his own name for the full value of the loss. Hopkins v. Colonial Stores, Inc., 224 N.C. 137, 139, 29 S.E.2d 455 (1944) (\"It has been uniformly held that the bailee has a right of action against a third party, who by his negligence causes the loss of or an injury to the bailed articles, and this right has been held to be the same, even though the bailee is not responsible to the bailor for the loss.\"), overruled in part on other grounds, Jones v. Bailey, 246 N.C. 599, 602, 99 S.E.2d 768 (1957); Peed v. Burleson's, Inc., 242 N.C. 628, 630, 89 S.E.2d 256 (1955) (bailee possesses interest in bailed property sufficient to allow him to sue third party in own name).\nOn oral argument, Defendants moved that the insurer be joined as a necessary party under Fed.R.Civ.P. 19, citing Travelers Ins. Co. v. Riggs, 671 F.2d 810 (4th Cir.1982). See also Virginia Elec. & Power Co. v. Westinghouse Elec. Corp., 485 F.2d 78, 85 (4th Cir.1973) (insurer, as partial subrogee of claim, is \"person to be joined if feasible under Fed.R.Civ.P. 19(a)\").\nAs indicated above, however, Plaintiff's right to sue for the full value of the jewels is not predicated upon his being the owner of the jewels, nor is that right affected by his not being liable to the owner, because of insurance or otherwise, for the value of the jewels. See Hopkins, 224 N.C. at 139, 29 S.E.2d 455 (bailee's right of action remains even if bailor does not hold bailee responsible for loss). The fact that the bailor maintained insurance on the jewels, or that Plaintiff has agreed to pay to the bailor's insurer any recovery above Plaintiff's actual expenses, is immaterial.\nDenial of Defendants' Rule 19 Motion will not subject Defendants to multiplicity of suits or inconsistent obligations. Plaintiff, as bailee, will be deemed to hold in trust for the bailor any excess judgment over his own loss. Hopkins, 224 N.C. at 139, 29 S.E.2d 455.\nDefendants also moved for summary judgment eliminating from consideration any lost profits allegedly resulting from the loss of the sample case. Plaintiff claims that, as a result of not having a sample case to display to customers, he was unable to make sales which he ordinarily would have made.\n*167 Defendants first argue that Plaintiff is limited to recovery of the actual market value of the jewels in the case, citing 40 Am.Jur.2d Hotels, Motels, & Restaurants § 186 (1968). This rule, however, does not preclude recovery of lost profits; rather, it states the measure of damages to be used in determining the value of the property lost.\nDefendants also contend that the evidence concerning Plaintiff's lost profits is too speculative to warrant recovery. Though Plaintiff's counsel, in his brief, promised to point out to the Court \"testimony and other portions of the [Plaintiff's] deposition\" which support Plaintiff's claim for lost profits, counsel failed to do so. Plaintiff's Brief in Opposition to Defendants' Motion for Summary Judgment at 19. Plaintiff's so-called evidence consisted solely of his belief that he could have made sales during the two weeks that he was without his case.[1] This is insufficient to *168 support an award of damages. Kitchen Lumber Co. v. Tallassee Power Co., 206 N.C. 515, 522, 174 S.E. 427 (1934) (profits lost as a result of defendant's having negligently destroyed plaintiff's railway bridge not recoverable if \"speculative and contingent\"). Plaintiff himself estimated his chances at making a sale to be \"better than ... 50-50.\" Plaintiff's deposition at 159. Such evidence could support only a guess as to the amount of profits Plaintiff lost. Defendant is entitled to summary judgment on Plaintiff's claim for lost profits.\nA Judgment in accordance with this Memorandum of Decision will be filed simultaneously herewith.\n\nJUDGMENT\nIn accordance with the Memorandum of Decision filed simultaneously herewith, Defendants' Motion for summary judgment and for partial summary judgment will be disposed of as ordered below.\nNOW, THEREFORE, IT IS ORDERED AND ADJUDGED that:\n(1) Defendants' Motion for summary judgment is DENIED;\n\n(2) Defendants' Motion for partial summary judgment is DENIED, insofar as it seeks to limit Plaintiff's recovery to less than the full value of the sample case and its contents;\n(3) Defendants' Motion for partial summary judgment on the issue of Plaintiff's entitlement to lost profits is GRANTED;\n\n(4) Defendants' Motion to add a party is DENIED; and\n(5) Plaintiff is to produce a true and correct copy of the insurance policy covering the contents of the sample case at the time of the act in question on or before the expiration of ten (10) days from the date of this Judgment.\nNOTES\n[1] Plaintiff's only evidence concerning his lost profits appeared in his deposition testimony:\n\nQ. How long did it take for you to obtain a replacement sample case?\nA. It took me to the end of the month, which was somewhere around the 20th to 25th, I believe. I'm not exactly sure on the exact date, but this was prime selling Christmas season.\nQ. In Paragraph 20 of the Complaint, you referred to lost sales, lost opportunities. What lost sales and lost opportunities are you referring to?\nA. Okay. In thisin my business, we're a small company. It's the old adage, \"First come, first serve.\" People were buying very heavily at this time for Christmas. We were sellingwe were ahead of our previous year by quite a year. I was ahead, you know, in my territory by quite a bit. And by losing three or four weeks, or whatever I exactly lost in time, was, you know, quite a bit of business dollars in volume and plus commissions to me.\nQ. Has anyone ever told you that they would have purchased merchandise from you if you'd have shown up during that two- or three-week period that you didn't have a sample line?\nA. I went around after I did get my line back, to see people I had not seen at that point, and they were all very sorry about the robbery, but they had all already purchased merchandise from my competitors. Now, normally, I would get orders from these people, and other jewelers and so forth, and reorders, but I did not get these orders because I wasn't there and they were placing their orders for Christmas.\nQ. Did anyone ever tell you that?\nA. Yes.\nQ. Do you know who told you that?\nA. I think Arnold's Jewelers in Shelby was one. Just right off the top of my head. Let me think, who else did I get to see?\nQ. Go ahead and take your time to think about it.\nA. Okay, I mean, they don't normally come out and say, \"I would have given you a $5,000 order if you had been here.\" They don't do that. They, you know, they buy, and if you're there when they need the goods, they buy from you. But bythis is the time of the year that everyone is rushing around to get those orders as quickly as possible. But IArnold's is the first that just came off of my mind, and this gentleman is out of Shelby, and he does very, very substantial business, you know, in the diamond industry and buying from people like myself.\nQ. Did anyone else tell you\nA. I can't remember\nQ. something to the same affect?\nA. Yeah. I can't remember right offhand, because this is the first time I've thought about this, as far as who would have said something to me. But I know when I've gone back and gone to different customers and so forth afterwards, they were all apologetic, but they already bought and so forth, which they normally buy from me.\nQ. Which there's no guarantee you'll ever make a sell on any particular occasion?\nA. There's no guarantee. That's where finesse and excitement, and having the right goods at the right time, is very important.\nQ. And, of course, you've always got to be concerned with your competition?\nA. Oh, absolutely. And Lovebright is one of my competitors.\nQ. So, even if you'd had your case, there's no way to guarantee you would have sold anything?\nA. I would say it's better than a 50-50 chance that I would have done quite well, because of my previous performance through that season, and what I had done up till that point over the previous year.\nQ. What stores were you intending to go to in the remainder of August?\nA. Well, I was going to go up into Virginia, which I did not get a chance to finish up in there. Let's see, where was I going to go? I'm trying to think of where I was. Well, I'll tell you what, I need to rehash that a little bit, since I really can't remember exactly what stores, because, like I mentioned to you earlier, that I worked areas at a time, and this islike I said, I have no prescribed, \"Today I'm going to see this guy and tomorrow I'm going to see that guy.\" I make my weekly itinerary that week. But when I did get the line back, I did go back to work, I did start calling on accounts again.\nPlaintiff's deposition at 156-160 (emphasis added).\n\n",
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| W.D. North Carolina | District Court, W.D. North Carolina | FD | North Carolina, NC |
244,789 | Allen, McALLISTER, Simons | 1958-04-07 | false | wsaz-inc-v-gerald-lyons-wsaz-inc-v-calvin-gearhart | null | Wsaz, Inc. v. Gerald Lyons, Wsaz, Inc. v. Calvin Gearhart | WSAZ, Inc., Appellant, v. Gerald LYONS, Appellee; WSAZ, Inc., Appellant, v. Calvin GEARHART, Appellee | Selden S. McNeer, Luther E. Woods, Jr., Huntington, W. Va. (Campbell, McNeer & Woods, Huntington, W. Va., on the brief), for appellant., W. H. Dysard, Ashland, Ky. (E. Poe Harris, Ashland, Ky., on the brief), for appellees. | null | null | null | null | null | null | null | null | null | null | 26 | Published | null | <parties data-order="0" data-type="parties" id="b296-3">
WSAZ, Inc., Appellant, v. Gerald LYONS, Appellee. WSAZ, Inc., Appellant, v. Calvin GEARHART, Appellee.
</parties><br><docketnumber data-order="1" data-type="docketnumber" id="b296-7">
Nos. 13261, 13262.
</docketnumber><br><court data-order="2" data-type="court" id="b296-8">
United States Court of Appeals Sixth Circuit.
</court><br><decisiondate data-order="3" data-type="decisiondate" id="b296-9">
April 7, 1958.
</decisiondate><br><attorneys data-order="4" data-type="attorneys" id="b297-4">
<span citation-index="1" class="star-pagination" label="243">
*243
</span>
Selden S. McNeer, Luther E. Woods, Jr., Huntington, W. Va. (Campbell, McNeer & Woods, Huntington, W. Va., on the brief), for appellant.
</attorneys><br><attorneys data-order="5" data-type="attorneys" id="b297-5">
W. H. Dysard, Ashland, Ky. (E. Poe Harris, Ashland, Ky., on the brief), for appellees.
</attorneys><br><p data-order="6" data-type="judges" id="b297-6">
Before SIMONS, Chief Judge, and ALLEN and McALLISTER, Circuit Judges.
</p> | [
"254 F.2d 242"
]
| [
{
"author_str": "Allen",
"per_curiam": false,
"type": "010combined",
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"download_url": "http://bulk.resource.org/courts.gov/c/F2/254/254.F2d.242.13261.13262_1.html",
"author_id": null,
"opinion_text": "254 F.2d 242\n WSAZ, Inc., Appellant,v.Gerald LYONS, Appellee.WSAZ, Inc., Appellant,v.Calvin GEARHART, Appellee.\n No. 13261.\n No. 13262.\n United States Court of Appeals Sixth Circuit.\n April 7, 1958.\n \n Selden S. McNeer, Luther E. Woods, Jr., Huntington, W. Va. (Campbell, McNeer & Woods, Huntington, W. Va., on the brief), for appellant.\n W. H. Dysard, Ashland, Ky. (E. Poe Harris, Ashland, Ky., on the brief), for appellees.\n Before SIMONS, Chief Judge, and ALLEN and McALLISTER, Circuit Judges.\n ALLEN, Circuit Judge.\n \n \n 1\n This appeal arises out of two cases presenting identical questions of law based on practically identical facts. They were tried together and are consolidated for hearing here. The questions presented are (1) whether broadcasting by defendant,1 a foreign corporation, from its television station located outside Kentucky but sent into and delivered in Kentucky by defendant in accordance with and in fulfillment of contracts for advertising within Kentucky constitutes doing business in Kentucky; and if so, (2) whether the particular tort complained of by plaintiffs, a libel, was so connected with doing business by defendant within Kentucky that service may be had upon and jurisdiction secured over defendant, a foreign corporation not qualified to do business in Kentucky, through service on the Secretary of State of Kentucky under the provisions of KRS Sections 271.385 and 271.610. The pertinent portion of these statutes reads as follows:\n \n Section 271.385(2):\n \n 2\n \"Every foreign corporation, except foreign insurance companies, carrying on business in this state, shall at all times have an office in this state and an authorized agent in this state upon whom process can be served.\"\n \n Section 271.610(2):\n \n 3\n \"Any foreign corporation that does business in this state without having complied with the provisions of KRS 271.385 as to designation of process agent shall, by such doing of business, be deemed to have made the Secretary of State its agent for the service of process in any civil action instituted in the courts of this state against such corporation involving a cause of action arising out of or connected with the doing of business by such corporation in this state. The plaintiff in such an action shall set forth in his petition the post office address of the home office of the corporation.\"\n \n \n 4\n Defendant contends that the District Court secured no jurisdiction. The question was raised by motion to vacate and quash summons and dismiss the action, which was overruled. The verdicts were returned in favor of each plaintiff for $5,000. After jury verdicts motion to dismiss the case for lack of jurisdiction was renewed and motion was also made for an order setting aside the verdicts and entering judgment in favor of defendant or, in the alternative, for an order setting aside the verdicts and granting a new trial. These motions were overruled and judgment was entered on the verdicts.\n \n \n 5\n The case arises out of the following facts, in general developed in answer to interrogatories filed by plaintiffs and, under order of the court, answered by defendant, and from affidavits filed in support of and opposing the motion to dismiss:\n \n \n 6\n WSAZ, Inc., operates a radio and television broadcasting station in Huntington, W. Va. The activities of the radio station are not here involved. The primary coverage of the television station for daytime operation includes areas of West Virginia and Ohio and five counties in Kentucky, including Boyd County. The alleged libel took place in Boyd County, one of the counties to which defendant gives Grade A service, the superior of the two types of service specified by the Federal Communications Commission. Grade A service is so specified by the FCC that \"a quality acceptable to the median observer is expected to be available for at least 90% of the time at the best 70% of receiver locations at the outer limit of this service.\"\n \n \n 7\n Defendant contracts for advertising on behalf of persons and business firms located in Kentucky. It asserts that all contracts for such advertising are sent to Huntington, West Virginia, for acceptance or rejection.\n \n \n 8\n Defendant's total advertising sales from April 1, 1954, to March 31, 1955, amounted to $1,976,049.27. Of this amount 3.6%, namely, $71,310.39, was derived from advertising sold to persons and firms located in Kentucky. 2.4% of the Kentucky advertising contracts were made by defendant with Kentucky purchasers but were negotiated, defendant asserts in its answer to interrogatories, by advertising agents located outside of Kentucky. Advertising contracts were also made directly with customers located in Kentucky. It is stated that in general these were negotiated by telephone or personal interview in West Virginia. All sales of advertising made by defendant were in consideration of its agreement to broadcast and telecast sound and picture signals from its transmitters under the specifications of the Federal Communications Commission. Defendant's television schedules are published without charge in seven newspapers in Kentucky, including Boyd County and it buys a nominal amount of advertising in Kentucky newspapers.\n \n \n 9\n Boyd County, Kentucky, the situs of the alleged libel, which contains the cities of Ashland and Catlettsburg, the county seat, is across the Ohio River from West Virginia. Huntington, West Virginia, defendant's principal place of business, is about 15 miles from the city of Catlettsburg. Defendant's telecasts in Boyd County, Kentucky, reach some several hundred thousand people.\n \n \n 10\n Defendant operates its television station some eleven miles northeast of Huntington, West Virginia, where its facilities and offices are situated. None of its employees or agents reside in Kentucky and it has no office there. Occasionally its employees gather material for news broadcasts in Kentucky, but it has neither qualified to do business in that state nor designated any agent upon whom process can be served therein.\n \n \n 11\n Plaintiffs instituted in the Circuit Court of Boyd County, Kentucky, individual actions claiming damages for the alleged libel published by defendant's telecasts in Kentucky and served process upon the Secretary of State of Kentucky. The action was removed to the Federal Court on the ground of diversity of citizenship. As rightly held by the District Court, it has jurisdiction only if the Boyd County Circuit Court in which the cases were originally filed had jurisdiction. Lambert Run Coal Co. v. Baltimore & O. R. Co., 258 U.S. 377, 382, 42 S.Ct. 349, 66 L.Ed. 671. This question in turn depends upon whether the service upon the Secretary of State of Kentucky invested the Kentucky court with jurisdiction.\n \n \n 12\n Defendant does not contest the fact that television and radio broadcasts are interstate commerce. Fisher's Blend Station, Inc., v. Tax Commission, 297 U.S. 650, 56 S.Ct. 608, 80 L.Ed. 956.\n \n \n 13\n However, defendant urges that if it is held liable here it is liable in any state of the union to which the television waves coming from its West Virginia facilities are transmitted. It also contends that, unless broadcasting which is received in any state of the union constitutes doing business in that state, defendant was not doing business in Kentucky. These are questions with interesting legal ramifications but they are not decisive here. As set forth in International Harvester Co. of America v. Commonwealth of Kentucky, 234 U.S. 579, 583, 34 S.Ct. 944, 58 L.Ed. 1479, whether the essential requirement of doing business by a foreign corporation within the state of the forum exists is to be decided upon the facts of the particular case. The facts here consist not only of certain general conditions and situations with reference to telecasting, emphasized by defendant, but they include its own admissions that its usual business was broadcasting, that newscasts were part of its usual business and that the alleged libels were published as newscasts.\n \n \n 14\n Defendant in its answer No. 3 to interrogatories replied in the affirmative to the following question:\n \n \n 15\n \"3. Is the usual business of WSAZ, Inc., that of telecasting and broadcasting television and radio waves or signals from its towers in Huntington to receiving sets owned by the public in its listening areas?\"\n \n \n 16\n It also stated in its answer to Interrogatory 2 that \"The primary coverage area of the station * * * for daytime operation includes essentially all or portions of the following counties:\" It then named five counties in Kentucky, including Boyd County. It further stated that its nighttime contour covers \"a part of Boyd County in Kentucky.\" In the affidavit filed in support of defendant's motion to vacate and quash summons defendant's vice president and general manager stated \"said corporation regularly broadcasts programs generally known as news broadcasts over both its radio and television stations. * * *\" It is thus established that Boyd County, Kentucky, is one of defendant's \"listening areas\" and that as part of its usual business of telecasting to the receiving sets owned by the public in its listening areas defendant puts out regular news broadcasts. These facts seem to require the deduction that defendant does business in Boyd County, Kentucky, for it is also undisputed that the activation of the broadcast in West Virginia continued into Kentucky and was the act of defendant itself.\n \n \n 17\n Defendant, relying upon decisions in libel cases where the alleged libel was published in newspapers printed in a foreign state but distributed in the state of the forum and holding that such distribution is not doing business in the state of the forum, contends that the decision herein must be reversed. It urges that in these newspaper cases the mere soliciting and obtaining of orders within the state of the forum by an agent of the foreign corporation for goods to be shipped into a state to purchasers does not amount to doing business within that state. Robbins v. Benjamin Air Rifle Co., 5 Cir., 209 F.2d 173; Lauricella v. Evening News Publishing Co., D.C., 15 F.Supp. 671. It also urges that the gathering of news in the state of the forum does not, as against a foreign corporation served with process as herein, constitute doing business in that state. Neely v. Philadelphia Inquirer Co., 61 App.D.C. 334, 62 F.2d 873; Layne v. Tribune Company, 63 App.D.C. 213, 71 F.2d 223. The fact that contracts for subscriptions were not consummated within the state of the forum was held in Cannon v. Time, Inc., 4 Cir., 115 F.2d 423, a newspaper case, to be an important factor in the decision that the newspaper, a resident of Chicago, was not doing business within Virginia.\n \n \n 18\n A later decision, Frene v. Louisville Cement Co., 77 U.S.App.D.C. 129, 134 F.2d 511, 515, 146 A.L.R. 926, indicates, however, that the feature of execution of the contracts in the state of residence is not controlling, declaring \"the fundamental principle underlying the `doing business' concept seems to be the maintenance within the jurisdiction of a regular, continuous course of business activities, whether or not this includes the final stage of contracting.\" Cf. International Harvester Co. of America v. Commonwealth of Kentucky, supra. In this case there was a continuous shipment of machines into the state of the forum whch corresponded with the continuous transmission herein of defendant's broadcasts into Kentucky. Cf. Board of Trade of City of Chicago v. Hammond Elevator Company, 198 U.S. 424, 441, 442, 25 S.Ct. 740, 49 L.Ed. 1111.\n \n \n 19\n In view of the affidavits filed on the original motion to dismiss, executed by businessmen and concerns of Ashland, Kentucky, in 1955, it may be questioned whether the solicitation by defendant's employees in Kentucky was as sporadic as it claims. For the period involved an affidavit executed by two business associates of Ashland states that they were solicited on several occasions by defendant's agent in Ashland, Kentucky. An affidavit by a general manager of a motor company in Ashland, Kentucky, says that on numerous occasions he was solicited in Ashland by an employee of WSAZ for advertising. One affiant appends a check for $500 paid as his share in a certain advertising broadcast by defendant during this period. Other affidavits executed by residents of Kentucky support these statements. Under the circumstances we cannot conclude that the District Court's finding of facts embodied in its opinion was clearly erroneous, namely [150 F.Supp. 102]:\n \n \n 20\n \"The record discloses that over a considerable period of time the defendant sought out and contracted with various merchants and business people in Kentucky for advertising over its stations. It entered into written contracts. It had representatives solicit advertising in person and engaged business people in written contracts extending over weeks and months.\"\n \n \n 21\n The words \"doing business\" are not technical. They are ordinary words to be construed according to their ordinary meaning. Defendant's activities within the State of Kentucky come within the dictionary definition. \"Business\" is defined by Webster as any particular occupation or employment habitually engaged in, especially for livelihood or gain. Another applicable definition is \"Mercantile transactions; buying and selling. * * *\" Webster's New International Dictionary, Second Edition.\n \n \n 22\n Defendant does not contend that it does not sell its service and that it gets no gain therefrom. Its actual income is from advertising. In accordance with its contracts it advertises goods, merchandise, services, etc., for sale in Boyd County, Kentucky, where it reaches part of its listening public. When it starts the telecast defendant is doing its \"usual business\" as defined in Interrogatory 3, but it contends that the completion of the business in Kentucky is not a part of its business. Thus in effect defendant contends that its activities in telecasting have no effect beyond West Virginia, although its telecasts were delivered by defendant and received in the listening areas such as Boyd County, which contracted expressly for them. A substantial number of defendant's customers desired to reach the buying area of Boyd County and bought defendant's advertising service with that precise purpose. The advertising contracts in question, whether originating in Kentucky or not, were performed in that state for a substantial money consideration derived from residents of that state.\n \n \n 23\n We see a vital distinction between the instant case and the newspaper cases relied on by defendant. Of the numerous decisions which it cites Cannon v. Time, Inc., supra; Street & Smith Publications, Inc., v. Spikes, 5 Cir., 120 F.2d 895; and Schmidt v. Esquire, Inc., 7 Cir., 210 F.2d 908, are typical. In each of these cases the publisher was a foreign corporation, but the publication circulated widely through the state in which jurisdiction over the publisher was sought. In Cannon v. Time, Inc., supra, the question involved was the validity of process to be served upon Time, Inc., a resident of Chicago, Ill., publisher of Time magazine. The distribution of Time magazine was handled by The American News Company of New York State, which arranged for delivery of the magazines to the carrier and for their independent sale at newsstands within the State of Virginia. The business within Virginia was done by the newsstands and agencies for themselves as independent contractors. The court in an opinion by Judge Parker held that business was not done by Time, Inc., within Virginia.\n \n \n 24\n In the instant case defendant itself transmitted its advertising over the air and delivered it in Kentucky. No independent contractor intervened. We do not agree with the contention that if the telecast went on the air waves defendant could not control the out-of-state operation. As it signed on a telecast it could have signed it off. The court takes judicial notice that defendant could have cut off from the air the particular broadcasts alleged and found by the jury to constitute libel in both cases. The fact that the amount of business solicited in Kentucky was only 1.03% of the total advertising revenue for the year from April 1, 1954, to March 31, 1955, is immaterial. The total advertising income derived from Kentucky for the period involved was over $71,000. This is a substantial amount and the record shows that it was secured by a regular and sustained course of business. As declared in International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 159, 90 L.Ed. 95:\n \n \n 25\n \"The test is not merely, as has sometimes been suggested, whether the activity, which the corporation has seen fit to procure through its agents in another state, is a little more or a little less. * * * Whether due process is satisfied must depend rather upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure. That clause does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations. Cf. Pennoyer v. Neff, supra [95 U.S. 714, 24 L.Ed. 565]; Minnesota Commercial Men's Ass'n v. Benn, 261 U.S. 140, 43 S.Ct. 293, 67 L.Ed. 573.\n \n \n 26\n \"But to the extent that a corporation exercises the privilege of conducting activities within a state, it enjoys the benefits and protection of the laws of that state. The exercise of that privilege may give rise to obligations, and, so far as those obligations arise out of or are connected with the activities within the state, a procedure which requires the corporation to respond to a suit brought to enforce them can, in most instances, hardly be said to be undue.\"\n \n \n 27\n Here the undisputed circumstances above set forth compel the conclusion that defendant carried on a regular and continuous course of business activity in Kentucky, for its usual broadcast, started by defendant in West Virginia, was regularly carried over into Kentucky by defendant as expressly contracted.\n \n \n 28\n Defendant through its telecasting had substantial ties, contracts and relations with the Commonwealth of Kentucky and its activities within that state created obligations therein. It follows that within the doctrine of International Shoe Co. v. State of Washington, supra, defendant is doing business within the Commonwealth of Kentucky.\n \n \n 29\n Defendant also vigorously contends that the news telecasts alleged to constitute the libel have no connection with the business done. On this point defendant cites decisions construing a statutory provision more narrow than that of KRS Section 271.610. Thus the Massachusetts statute construed in Coakley v. Frank A. Munsey Co., D.C., 50 F.Supp. 83, and in Nichols v. Cowles Magazines, Inc., D.C., 103 F.Supp. 864, required that the cause of action asserted arise out of business done in Massachusetts. The Kentucky statute is broader. It covers, in addition to causes of action \"arising out of\" the doing of business by a foreign corporation in Kentucky, causes of action \"connected\" with the doing of business by such corporation in Kentucky. All that is necessary here is that the cause of action asserted shall be \"connected\" with the business done. Defendant asserts that the alleged libel has no connection with its business done in Kentucky. But in view of its admission that its usual business was the business of telecasting and that this included news programs, and in view of the undisputed fact that the alleged libel was part of news programs regularly broadcast by defendant, this contention has no merit.\n \n \n 30\n The question of due process would seem to be settled by the case of McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223, as well as by International Shoe Co. v. State of Washington, supra. While defendant was not present in the territory of the forum, it certainly had substantial contacts with it. It sought and executed contracts for the sale of advertising service to be performed and actually performed by its own act within the territory of the forum. We conclude that the maintenance of the suit does not offend \"traditional notions of fair play and substantial justice.\" International Shoe Co. v. State of Washington, supra.\n \n \n 31\n The judgment of the District Court is affirmed.\n \n \n \n Notes:\n \n \n 1\n The parties will be designated as in the court below\n As defendant relies solely upon the jurisdictional question, we do not discuss the merits of the case which are set forth in the District Court's opinion Gearhart v. WSAZ, Inc., 150 F.Supp. 98.\n \n \n ",
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]
| Sixth Circuit | Court of Appeals for the Sixth Circuit | F | USA, Federal |
244,796 | Brennan, Clark, Hand | 1958-04-18 | false | cuba-railroad-co-v-united-states | null | Cuba Railroad Co. v. United States | CUBA RAILROAD CO., Appellant, v. UNITED STATES of America, Appellee | John J. Hayes and Kramer, Marx, Greenlee & Backus, New York City, for appellant., Elliot L. Hoffman, Paul W. Williams, U. S. Attys. for the Southern Dist. of New York, New York City, for United States. | null | null | null | null | null | null | null | Argued March 11, 1958. | See also D.C., 135 F.Supp. 847. | null | 16 | Published | null | <parties data-order="0" data-type="parties" id="b334-3">
CUBA RAILROAD CO., Appellant, v. UNITED STATES of America, Appellee.
</parties><br><docketnumber data-order="1" data-type="docketnumber" id="b334-5">
No. 217, Docket 24630.
</docketnumber><br><court data-order="2" data-type="court" id="b334-6">
United States Court of Appeals Second Circuit.
</court><br><otherdate data-order="3" data-type="otherdate" id="b334-7">
Argued March 11, 1958.
</otherdate><br><decisiondate data-order="4" data-type="decisiondate" id="b334-8">
Decided April 18, 1958.
</decisiondate><br><seealso data-order="5" data-type="seealso" id="b334-11">
See also D.C., 135 F.Supp. 847.
</seealso><br><attorneys data-order="6" data-type="attorneys" id="b335-6">
<span citation-index="1" class="star-pagination" label="281">
*281
</span>
John J. Hayes and Kramer, Marx, Greenlee & Backus, New York City, for appellant.
</attorneys><br><attorneys data-order="7" data-type="attorneys" id="b335-7">
Elliot L. Hoffman, Paul W. Williams, U. S. Attys. for the Southern Dist. of New York, New York City, for United States.
</attorneys><br><p data-order="8" data-type="judges" id="b335-8">
Before CLARK, Chief Judge, HAND, Circuit Judge and BRENNAN, District Judge.
</p> | [
"254 F.2d 280"
]
| [
{
"author_str": "Hand",
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"opinion_text": "254 F.2d 280\n 58-1 USTC P 9461\n CUBA RAILROAD CO., Appellant,v.UNITED STATES of America, Appellee.\n No. 217, Docket 24630.\n United States Court of Appeals Second Circuit.\n Argued March 11, 1958.Decided April 18, 1958.\n \n John J. Hayes and Kramer, Marx, Greenlee & Backus, New York City, for appellant.\n Elliot L. Hoffman, Paul W. Williams, U.S. Attys. for the Southern Dist. of New York, New York City, for United States.\n Before CLARK, Chief Judge, HAND, Circuit Judge and BRENNAN, District judge.\n HAND, Circuit Judge.\n \n \n 1\n This appeal is from a summary judgment dismissing the plaintiff's claim for a refund of part of its income taxes for 1943. The action was begun in 1953, based upon the disallowance by the Treasury of a credit asserted by the plaintiff for taxes paid to the Republic of Cuba for the year 1943. The facts were as follows.\n \n \n 2\n The plaintiff, which was on an 'accrual' basis as to its U.S. taxes, had issued several series of bonds, bearing interest from five to seven per cent. In 1940 the Republic of Cuba passed a statute limiting corporations doing business in that country to the payment of one per cent interest upon their bonded debts. Various of the plaintiff's bondholders refused to recognize the validity of this law as a defense to their claims for full interest, in 1943 one brought an action in the courts of New York and in which he later recovered the stipulated interest. The plaintiff, finding itself threatened with claims by its bondholders, offered a compromise, called 'The Plan,' by which it promised to pay two per cent interest in addition to the one per cent allowed by the Cuban law to all bondholders who should deposit their bonds with a designated trustee. Under this 'Plan' there fell due in 1943 three per cent on all the outstanding bonds, both then deposited and undeposited. This amounted to $181,000, and the plaintiff claimed the right to deduct that sum as 'accrued' interest. To such an allowance the Treasury objected asserting that interest had 'accrued' upon only those bonds that had been deposited in 1943. In 1948 the parties entered into a settlement under Treasury Form 870-TS by which the plaintiff's income tax for 1943 included an allowance at three per cent interest for that year upon all bonds that had been deposited under the 'Plan' up to 1948, and the plaintiff agreed that no 'claim for refund' should 'be filed or prosecuted for the year above stated.' Form 870-TS contained the clause that the 'execution and filing of the offer' was 'not, however, a final closing agreement under section 3760 of the Internal Revenue Code (26 U.S.C.A. 3760).' The plaintiff's income tax was liquidated on this basis.\n \n \n 3\n Meanwhile the plaintiff had been negotiating with the Cuban tax authorities and finally came to an agreement with them by which in August 1950 it paid in discharge of its deficiencies for 1943 the sum of $33,506.33, for which it filed a claim against the Treasury as a credit for 1943. This the Treasury rejected in 1952, and it is subject of the action at bar. The plaintiff justified its delay in filing the claim by virtue of Treasury Ruling 58-55 which makes a foreign tax 'accruable' as a credit 'for the taxable year to which it relates even though the taxpayer contests the liability therefor and such tax is not paid until a later vear.' We shall assume without deciding that Form 870-TS, left it open to the plaintiff to recover the claimed refund;1 for we hold that the set-off asserted by the Treasury was a valid answer to the claim, and, being larger, is a bar to the action.\n \n \n 4\n It is true that in 1953 the time had passed within which the Treasury could have reassessed the plaintiff's income for 1943; nevertheless, any claim to a refund must be on the theory of money had and received; and, if so, the Treasury was free to show that the interest that had accrued on bonds deposited after 1943 was not a deduction allowable in 1943. Since the plaintiff must repudiate Form 870-TS in order to recover at all, the Treasury is free to treat its allowance of the interest on bonds not deposited in 1943 as a set-off under the doctrine of Lewis v. Reynolds, 284 U.S. 281, 52 S. Ct. 145, 76 L. Ed. 293; Bull v. United States, 295 U.S. 247, 55 S. Ct. 695, 79 L. Ed. 1421; and Stone v. White, 301 U.S. 532, 57 S. Ct. 851, 81 L. Ed. 1265. To this the plaintiff answers that the decision of the Supreme Court in Rothensies v. Electric Storage Battery Co., 329 U.S. 296, 67 S. Ct. 271, 91 L. Ed. 296, limited the doctrine of 'equitable set-off' to occasions when the claim for refund and the set-off 'originated in the same transaction.' In that case the assessed income of the taxpayer had been increased by the sum of the aggregate payments collected from it in earlier years upon a tax, later found to be invalid, and the assessment of this amount as part of its income in the year of its receipt the Court held to be correct. The taxpayer attempted to set-off against this assessment the amounts it had paid in earlier years before the invalid tax had been so declared for which recovery was barred by the statute of limitations. This the Court denied, holding that the doctrine of Lewis v. Reynolds, supra, went no further than to permit a transaction which is made the subject of the suit 'to be examined in all its aspects' (329 U.S. at page 299, 67 S.Ct. at page 272).\n \n \n 5\n In the case at bar the claim for refund was based upon the disallowance as a credit to the plaintiff's income tax for 1943 of Cuban taxes which it was later compelled to pay. The set-off is for the deduction unnecessarily allowed upon the plaintiff's income tax for the same year. We do not believe that Rothensies v. Electric Storage Battery Co., supra, meant to hold, when the refund and the set-off both depend upon what were the proper deductions in the same year, that the transactions which determine those deductions must be so narrowly connected. On the contrary, when the taxpayer seeks a refund for a credit mistakenly denied, he must be content to allow his tax for the same year to be corrected because of errors through which he has profited. It is indeed true, as Jackson, J., said on page 302, of 329 U.S., on page 274 of 67 S.Ct., that in the 'assessment of deficiency' the 'claim for refund' does not 'invite a search of the taxpayer's entire tax history for items to recoup,' but nothing could be more unjust than to allow one party to disregard the settlement and the other to enforce it.\n \n \n 6\n Little need be said in answer to the plaintiff's argument that on the merits it was entitled to a deduction for interest due on the undeposited bonds. The 'Plan' of 1942 provided for the payment of interest on the bonds at three per cent only on condition that the bondholders deposited their bonds with the designated trustee. As we have said, during the year 1943 the taxpayer was still contesting the right of its bondholders to any interest above one per cent, except in so far as such a right was granted under the 'Plan.' That being true, it could claim no deduction except for what became due in that year under the 'Plan.' Such bondholders as had not deposited then might never do so, yet their right to recover the stipulated three per cent was conditional upon such a deposit; therefore it had not then 'accrued.' Dixie Pine Products Co. v. Commissioner, 320 U.S. 516, 64 S. Ct. 364, 88 L. Ed. 270.\n \n \n 7\n Judgment affirmed.\n \n \n \n 1\n Botany Worsted Mills v. United States, 278 U.S. 282, 49 S. Ct. 129, 73 L. Ed. 379; Daugette v. Patterson, 5 Cir., 250 F.2d 753, 756\n \n \n ",
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| Second Circuit | Court of Appeals for the Second Circuit | F | USA, Federal |
1,247,406 | Andrews, Eldridge, Miller | 2001-09-28 | false | kemper-v-state | Kemper | Kemper v. State | Kemper v. the State | William J. Mason, for appellant., J. Gray Conger, District Attorney, Roger H. Anderson, Assistant District Attorney, for appellee. | null | null | null | null | null | null | null | null | null | null | 6 | Published | null | <docketnumber id="b695-5">
A01A1619.
</docketnumber><parties id="AkWx">
KEMPER v. THE STATE.
</parties><br><citation id="b695-6">
(555 SE2d 40)
</citation> | [
"555 S.E.2d 40",
"251 Ga. App. 665"
]
| [
{
"author_str": "Miller",
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"opinion_text": "\n555 S.E.2d 40 (2001)\n251 Ga. App. 665\nKEMPER\nv.\nThe STATE.\nNo. A01A1619.\nCourt of Appeals of Georgia.\nSeptember 28, 2001.\nWilliam J. Mason, Columbus, for appellant.\nJ. Gray Conger, Dist. Atty., Roger H. Anderson, Asst. Dist. Atty., for appellee.\n*41 MILLER, Judge.\nA jury found Dione B. Kemper guilty of armed robbery, hijacking a motor vehicle, aggravated assault, and possession of a firearm during the commission of a crime. The court sentenced Kemper to 25 years confinement. On appeal Kemper challenges the sufficiency of the evidence to sustain his armed robbery conviction, and argues that his aggravated assault conviction should have merged with either his hijacking or armed robbery conviction. We affirm.\nThe evidence showed that Kemper approached the victim in a parking lot as he entered his vehicle. Kemper opened the passenger's side door of the victim's vehicle and sat down with a gun on his lap. Kemper then ordered the victim to open the trunk and to walk to the back of the vehicle. When the victim failed to do as instructed, Kemper took the victim's keys and opened the trunk. The victim then took money out of his pocket, asked Kemper to \"please just take the money, take the car ...,\" and laid the money inside the trunk. Kemper responded, \"no, get in the trunk,\" and pointed the gun at the victim. The two men then struggled, the gun fired, and the victim ran. Officers later found the gun and the victim's keys several blocks away, but found no money.\n1. Kemper contends that he did not force the victim at gunpoint to relinquish possession or control of the money. Specifically, he argues that since he expressly rejected the money that the victim offered him and there was no money found on his person, the evidence is insufficient to support a finding that he took the money as alleged in the indictment.\n\"A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon....\"[1] The indictment alleged that Kemper, with intent to commit theft, took currency from the victim by use of an offensive weapon.\nEvidence that the victim placed money in the trunk of the vehicle before escaping and that no money was recovered is sufficient to establish that Kemper took the victim's money. The fact that Kemper replied, \"no, get in the trunk,\" when offered the money does not necessarily mean that Kemper refused the money, for the jury could have found that Kemper simply would not take the money in substitution for the victim's getting into the trunk.\nThe force or intimidation to establish robbery\nmust either precede or be contemporaneous with, and not subsequent to, the taking. Where, as here, the evidence is sufficient to authorize a finding that the theft was completed after force was employed against the victim, a conviction for armed robbery is authorized regardless of when the intent to take the victim's property arose, regardless of whether the victim was incapacitated and even if the victim had been killed instantly.[2]\nHere the forcethe use of the gun against the victimpreceded the taking, and regardless of when Kemper formed the intent to take the victim's money, the evidence was sufficient to sustain Kemper's conviction for armed robbery.[3]\n2. Kemper argues that the aggravated assault offense should have merged with either the armed robbery offense or the hijacking offense.\n(a) Kemper's argument that the aggravated assault offense should have merged with hijacking is without merit. Pursuant to OCGA § 16-5-44.1(d), \"[t]he offense of hijacking a motor vehicle shall be considered a separate offense and shall not merge with any other offense....\"\n*42 (b) Armed robbery and aggravated assault do not merge as a matter of law.[4] Therefore, the question is whether the offenses merge as a matter of fact.[5] \"For example, if one crime is complete before the other takes place, the two crimes do not merge. However, if the same facts are used to prove the different offenses, the different crimes merge.\"[6]\nThe facts used to prove that Kemper committed aggravated assault were that he attempted to force the victim into the trunk of his own vehicle at gunpoint. These same facts are used to establish the force that preceded the taking for the armed robbery conviction. Here the offenses of aggravated assault and armed robbery do merge as a matter of fact, and the court erred in failing to merge these convictions.[7] Therefore, we vacate the sentences on Counts 1 and 3 and remand to the trial court for resentencing.\nJudgment of convictions affirmed, sentence vacated in part, and case remanded for resentencing.\nANDREWS, P.J., and ELDRIDGE, J., concur.\nNOTES\n[1] OCGA § 16-8-41(a).\n[2] (Citations and punctuation omitted.) Hudson v. State, 234 Ga.App. 895, 897(1)(a), 508 S.E.2d 682 (1998); see Johnson v. State, 247 Ga.App. 157, 159-160(1), 543 S.E.2d 439 (2000).\n[3] Moreover, the \"immediate presence\" element is satisfied even though the victim managed to escape before the money was taken. See Matthews v. State, 268 Ga. 798, 804(7)(a), 493 S.E.2d 136 (1997).\n[4] Robinson v. State, 246 Ga.App. 576, 583(8), 541 S.E.2d 660 (2000); Braswell v. State, 245 Ga. App. 602, 604(4), 538 S.E.2d 492 (2000).\n[5] Braswell, supra, 245 Ga.App. at 604(4), 538 S.E.2d 492.\n[6] (Citations and punctuation omitted; emphasis in original.) Johnson, supra, 247 Ga.App. at 162(10), 543 S.E.2d 439.\n[7] See id.\n\n",
"ocr": false,
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| Court of Appeals of Georgia | Court of Appeals of Georgia | SA | Georgia, GA |
261,569 | null | 1963-08-06 | false | anthony-j-celebrezze-secy-of-health-education-welf | null | Anthony J. Celebrezze, Secy. Of Health, Education, & Welfare v. Robert F. Park | null | null | null | null | null | null | null | null | null | null | null | null | 0 | Published | null | null | [
"321 F.2d 543"
]
| [
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": "http://bulk.resource.org/courts.gov/c/F2/321/321.F2d.543.17392_1.html",
"author_id": null,
"opinion_text": "321 F.2d 543\n Anthony J. CELEBREZZE, Secy. of Health, Education, & Welfarev.Robert F. PARK.\n No. 17392.\n United States Court of Appeals Eighth Circuit.\n August 6, 1963.\n \n Appeal from the United States District Court for the Western District of Arkansas.\n Charles M. Conway, U. S. Atty., for appellant.\n Robert E. Irwin, Russellville, Ark., for appellee.\n PER CURIAM.\n \n \n 1\n Appeal from District Court dismissed on motion of appellant, D.C., 214 F. Supp. 153.\n \n ",
"ocr": false,
"opinion_id": 261569
}
]
| Eighth Circuit | Court of Appeals for the Eighth Circuit | F | USA, Federal |
480,556 | null | 1986-12-05 | false | commonwealth-of-pennsylvania-and-raymond-williams-willie-mckay-marion-j | null | null | Commonwealth of Pennsylvania and Raymond Williams, Willie McKay Marion J. Eaddy, Randolph Hughes, Jr., Arel Brownlee, William Bostic, Kenneth Howard, Alpha Christmas, Ronald Richardson, Clarence Winder, Ronald Crawford and Frank Gilchrist, on Their Own Behalf and on Behalf of All Others Similarly Situated v. Local Union 542, International Union of Operating Engineers Operating Engineers Joint Apprenticeship and Training Committee of Philadelphia, Eastern Pennsylvania, and the State of Delaware General Building Contractors Association, Inc., Contractors Association of Eastern Pennsylvania, United Contractors Association, and Pennsylvania Excavating Contractors Association, on Their Own Behalf, and on Behalf of All Others Similarly Situated, and Glasgow, Inc., on Its Own Behalf and on Behalf of All Others Similarly Situated, Appeal of Local 542, International Union of Operating Engineers | null | null | null | null | null | null | null | null | null | null | null | 10 | Published | null | null | [
"807 F.2d 330"
]
| [
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": "http://bulk.resource.org/courts.gov/c/F2/807/807.F2d.330.85-1706.85-1540.html",
"author_id": null,
"opinion_text": "807 F.2d 330\n 42 Fair Empl.Prac.Cas. 836,41 Empl. Prac. Dec. P 36,701, 55 USLW 2355\n COMMONWEALTH OF PENNSYLVANIA and Raymond Williams, WillieMcKay, Marion J. Eaddy, Randolph Hughes, Jr., Arel Brownlee,William Bostic, Kenneth Howard, Alpha Christmas, RonaldRichardson, Clarence Winder, Ronald Crawford and FrankGilchrist, on their own behalf and on behalf of all otherssimilarly situated, Plaintiffs,v.LOCAL UNION 542, INTERNATIONAL UNION OF OPERATING ENGINEERS;Operating Engineers Joint Apprenticeship and TrainingCommittee of Philadelphia, Eastern Pennsylvania, and TheState of Delaware; General Building ContractorsAssociation, Inc., Contractors Association of EasternPennsylvania, United Contractors Association, andPennsylvania Excavating Contractors Association, on theirown behalf, and on behalf of all others similarly situated,and Glasgow, Inc., on its own behalf and on behalf of allothers similarly situated, Defendants.Appeal of LOCAL 542, INTERNATIONAL UNION OF OPERATING ENGINEERS.\n Nos. 85-1540, 85-1706.\n United States Court of Appeals,Third Circuit.\n Argued Sept. 17, 1986.Decided Dec. 5, 1986.\n \n Robert M. Weinberg (argued), Jeremiah A. Collins, Bredhoff & Kaiser, Washington, D.C., Edward A. Foy, Jr., Liederbach, Rossi, Hahn, Casey & Foy, Richboro, Pa., for appellant.\n Harold I. Goodman (argued), Community Legal Services, Inc., Philadelphia, Pa., for appellees.\n Before ADAMS and STAPLETON, Circuit Judges and COWEN, District Judge*.\n OPINION OF THE COURT\n STAPLETON, Circuit Judge.\n \n \n 1\n In these consolidated appeals, Local Union 542, International Union of Operating Engineers, (\"Local 542\" or \"the Union\") challenges the district court's extension of an injunctive decree first imposed on the Union in 1979, after a finding of intentional employment discrimination by the Union against minority workers. Specifically, the Union objects to the minority job referral levels that the extended decree requires. Because we do not believe that the district court abused its discretion in extending the decree, including its referral requirements, for two additional years, we affirm.\n \n I.\n \n 2\n The elaborate factual foundation for holding the Union liable in this case is recited at length in previous opinions that have emerged from this fourteen-year-old litigation. The Union here challenges only the extended injunction imposed after the district court determined that the initial decree's requirements had not been met. Because the factual background is set forth extensively in prior opinions, we can treat the long history of this case briefly. The most relevant facts for this appeal are the lower court's findings of continuing discrimination and the provisions of the extended decree.\n \n \n 3\n The district court in 1978 found Local 542 liable for intentional, classwide discrimination against minority workers in violation of both Title VII and 42 U.S.C. Sec. 1981. Commonwealth of Pennsylvania v. Local Union 542, Int'l Union of Operating Engineers, 469 F.Supp. 329 (E.D.Pa.1978), aff'd, 648 F.2d 922 (3d Cir.1981) (en banc). The court found discrimination by the Union in entry into the Union as well as in job referrals from the Union's exclusive hiring hall. Id. The court then entered an injunctive decree, effective November 7, 1979, to remedy the Union's unlawful conduct. Commonwealth of Pennsylvania v. Local Union 542, Int'l Union of Operating Engineers, 502 F.Supp. 7 (E.D.Pa.1979) (the injunction), aff'd, 648 F.2d 922 (3rd Cir.1981); Commonwealth of Pennsylvania v. Local Union 542, Int'l Union of Operating Engineers, 488 F.Supp. 988 (E.D.Pa.1980) (opinion in support of the injunction), aff'd, 648 F.2d 922 (3rd Cir.1981). Contractors that relied on Local 542's hiring hall were initially found vicariously liable by the district court, but the Supreme Court reversed this holding, General Building Contractors v. Pennsylvania, 458 U.S. 375, 102 S.Ct. 3141, 73 L.Ed.2d 835 (1982), thus invalidating the part of the injunctive decree that applied to the class of contractors. After this decision the obligations of the Union remained unchanged, except for the decree modifications discussed below.\n \n \n 4\n The injunctive decree's ultimate objective was to achieve, at the end of its life, a level of hours worked by minority Union members commensurate with the percentage of minority persons in the local workforce population. The decree established a different hours goal for each of five districts where the Union operated. The hours goals increased over the five-year period of the initial decree. To assure that the hours goals would be met, the district court imposed subsidiary obligations on the Union. One of the subsidiary obligations, the referral level (specified for each district), established the rate at which minority members were to be referred to jobs from the Union hiring hall. \"Referrals\" include dispatches from the hiring hall's out-of-work lists and recalls of preferred employees by employers.\n \n \n 5\n The Union's collective bargaining agreements give employers the right to recall a preferred employee during a 90-day period after the employee is laid off by the employer. Thus during the recall period the employer can hire a Union member who is out of work but has worked previously for the employer, giving the employer some control over who is sent from the hiring hall. If the employer does not recall a particular worker, the Union dispatches a member from its out-of-work list.\n \n \n 6\n At the outset, the referral levels of the injunction (i.e., the ratio of minority referrals to total referrals) were set at the same percentage as the yearly hours goals for each district (i.e., the ratio of minority hours worked to total hours worked), with a provision in the injunction that referral levels could later be increased if necessary to achieve the appropriate level of minority hours worked. To reach a desired level of minority work hours, referral levels must be set higher if the number of hours worked per referral is on the average higher for white workers. In this case, white Union members have consistently been referred to longer jobs. When the district court found that the initial referral levels resulted in a shortfall in minority hours worked, the court altered the referral obligations. Thus in 1983, the court set aside 22% of the referrals in District 1 for minority workers during the last two years of the initial decree, instead of 18%, the ultimate hours-worked goal for that district. In 1984, the court raised the referral level in District 1 to 40% for the remainder of the initial decree's life. Of the injunction's five districts, District 1 is the district with the greatest percentage of minorities, 18%, in its workforce population.\n \n \n 7\n As the years of the initial decree passed, the Union met neither the referral nor the hours-worked specifications of the decree. The Union also did not comply with integrated membership and validation requirements. The Master, appointed by the district court to oversee implementation of the decree, conducted evidentiary hearings in early 1985 and issued a detailed report that recommended inter alia extending the time period of the decree. The Master's Report states,\n \n \n 8\n The purpose of the Judgment and Decree was to assure the plaintiff class of adequate representation within the construction industry and more particularly in the endeavors of Operating Engineers.... This purpose has not been met. The Court found that the plaintiff class was entitled to this injunctive relief, and it is the finding of the Master after these years of experience, that the plaintiffs are still entitled to that relief and that the percentages mandated by the Court are reasonable goals.\n \n \n 9\n App. at 31. On July 30, 1985, the district court heard argument on whether to accept the Master's recommendations. At the conclusion of this argument, the court issued an order dated August 1, 1985, extending the injunctive decree for two years, to August 31, 1987, subject to modifications to be made by the court. An order dated October 9, 1985, sets out the district court's findings and its modifications of the injunction. The Union appeals from the August 1 and October 9, 1985, orders.\n \n \n 10\n The district court found \"a serious shortfall\" in the amount of work done by minorities during the last two years of the initial decree, the time period during which minorities were to achieve work levels commensurate with the number of minorities in the local workforce population. App. at 671. The court calculated that from September, 1983, to May, 1985, minority workers in District 1 and District 5 lost $4,101,727.00 in wages because of discrimination in the allocation of the Union's work. App. at 672. Furthermore, the court found that since it had ordered 40% minority referrals for District 1, the referral level \"actually decreased to 26.5 percent in year 5 from 27.47 percent in year 4.\" App. at 673 (emphasis in original). The court concluded that the Union \"has continued to use the hiring hall as a tool of discrimination.\" App. at 676. It also found that \"Local 542, in blatant and confrontational contempt of the court mandates, has failed to do any of the validation work required of it.\" App. at 677 (emphasis in original). Finally, the court held the Union \"in contempt for failing to satisfy court mandates respecting work levels for minorities, as well as its failure to do the validation work.\" App. at 677. Judge Bechtle reasoned,\n \n \n 11\n The degree of improvement is patently and substantially out of proportion to the levels of compliance that could have been achieved with the resources and experience, and time allowed by the court to perform. The Union's efforts have been mediocre, lackluster and, in the Court's view, calculated to show the minimum of change at the least cost to the Union's continuous program of wearisome and intentional racial discrimination.\n \n \n 12\n App. at 677-78 (emphasis in original).\n \n \n 13\n The extended decree has as its ultimate goal, as did the initial decree, minority work hours that reflect the number of local minority workers. To assist the Union in complying with the decree and ending discrimination, the extended decree requires the appointment of a Hiring Hall Monitor. It also orders Felix Manual Lopez, Ph.D., to formulate a validation plan for non-discriminatory entry and promotion standards, at the Union's expense.\n \n \n 14\n In addition, the extended decree maintains for two years the referral requirements established in 1984--40% minority referrals in District 1, for example, and 17% in District 5. Because Judge Bechtle found \"that the employer recall provision in the collective bargaining agreement has had, and will continue to have, a material adverse impact on the Union's ability to meet the goals of the Decree,\" however, he ordered that the recall provision be altered to restrict recalls to within 30 days from previous employment with a particular employer. As noted earlier, the collective bargaining agreements as signed by the contractors and the Union give the employers the recall privilege for 90 days. In modifying the initial decree Judge Bechtle further provided,\n \n \n 15\n The Hiring Hall Monitor will have the authority to approve of or disapprove of all referrals, including hiring hall dispatches and employer recalls. The Hiring Hall Monitor's authority to approve a recall request by an employer which extends beyond the thirty (30) day recall period set by this Decree, shall be limited to \"truly extraordinary circumstances.\"\n \n \n 16\n App. at 681.\n \n \n 17\n The Union in these appeals challenges the extended referral requirements, arguing that the District 1 hiring hall must under the extended decree dispatch minority workers at a rate of 70%, that the referral requirements unjustifiably hurt white workers who may not have benefited unfairly from discrimination in the past, and that the employers, not the Union, are responsible for the minority work shortfall. The Union emphasizes the Master's finding with respect to the last years of the initial decree:\n \n \n 18\n There were, in fact, enough minority operators available for work so that the 40 per cent referral could be met. In order to achieve that, in excess of 70 per cent of all dispatches would have to be to minority operators....\n \n \n 19\n * * *\n \n \n 20\n Certainly, the fact that it would require in excess of 70 per cent of all dispatches from the hiring hall to be given to minorities and that each one of those dispatches would have required a job of some 199 hours in length, is evidence of the difficulty the Union experiences in trying to comply. The plaintiffs point out, however, that such an effort on behalf of the Union was not even tried. There was at no time dispatches of minorities approaching 70 per cent even though the testimony indicates there were minorities available for work, many on the out-of-work list, that could have been dispatched in order to meet the quotas. It is also obvious to all parties involved and, essentially agreed to, that had the contractors been kept in the case, sharing the responsibility with the Union for meeting the hours and wages goal, that the effort would have been less onerous.\n \n \n 21\n App. at 18, 26 (emphasis in original). The high dispatch level required to meet the decree's referral goals resulted from the employers' practice of more frequently recalling white workers. Because the practice of favoring whites for recalls continues, argues the Union, the extended decree imposes an unfair burden on Local 542 and on its white workers who are not recalled regularly. The Union presents itself as powerless to control the employers' right to recall:\n \n \n 22\n The recall right is a contractual prerogative that is jealously guarded by the employers, and plaintiffs offer no evidence to suggest that the Union has ever been deemed to have the right to reject a recall that is requested within the period specified by the contract (originally 90 days, and now 30 days). Nor does anything in the Decree purport to authorize the Union to disregard the employers' contractual right to recall employees.\n \n \n 23\n Appellant's Reply Brief at 13-14 (footnote omitted). Local 542 asks this court to vacate the extended decree's referral requirements and to instruct the district court to set such requirements no higher than the percentage of minority members in the Union membership of each district.\n \n II.\n \n 24\n Local 542 does not challenge the district court's power to modify and extend its injunction. See United States v. United Shoe Machinery Corp., 391 U.S. 244, 252, 88 S.Ct. 1496, 1501, 20 L.Ed.2d 562 (1968) (district court should modify decree if required result not achieved). Nor does the Union dispute the proposition that the Supreme Court has approved the use of affirmative, race-conscious remedies for persistent employment discrimination under some circumstances. See Local 28, Sheet Metal Workers v. EEOC, --- U.S. ----, 106 S.Ct. 3019, 92 L.Ed.2d 344 (1986) (holding that race-conscious goals are among tools available to judges devising remedies for Title VII violations, and citing Pennsylvania v. International Union of Op. Engineers, 770 F.2d 1068 (CA 3 1985) (this case), as example). Finally, the Union does not challenge the district court's findings of fact as clearly erroneous. The Union does assert, however, that Judge Bechtle abused his discretion when he extended the race-conscious referral goals for two years, based on the injunction's failure so far to achieve its goal of equal employment opportunity.\n \n \n 25\n We review the district court orders for abuse of discretion. Franks v. Bowman Transportation Co., 424 U.S. 747, 770, 96 S.Ct. 1251, 1267, 47 L.Ed.2d 444 (1976) (fashioning employment discrimination remedy invokes equitable discretion of district court). Under the abuse of discretion standard, we may reverse the lower court only if the extended decree is arbitrary, capricious, or irrational, or it employs improper standards, criteria, or procedures. See Hoots v. Commonwealth of Pennsylvania, 703 F.2d 722, 725 (3d Cir.1983). As the plurality opinion in Local 28, Sheet Metal Workers emphasizes, the district court's discretion \"should be guided by sound legal principles.\" 106 S.Ct. at 3050.\n \n \n 26\n Justice Brennan's opinion and Justice Powell's opinion in Local 28, Sheet Metal Workers, together expressing the views of five members of the Court, focus on several factors to be considered in determining the propriety of race-conscious, prospective relief for Title VII violations. The affirmative race-conscious remedy in that case fit within Title VII's authorization because it (1) addressed persistent, egregious, or pervasive discrimination, (2) was flexible in application, (3) constituted a temporary measure, and (4) failed to trammel unnecessarily the interests of white workers. 106 S.Ct. at 3050-52 (Brennan, J., joined by Marshall, J., Blackmun, J., and Stevens, J.); see also 106 S.Ct. at 3054 (Powell, J., concurring in the judgment) (\"in cases involving particularly egregious conduct a District Court may fairly conclude that [a negative] injunction alone is insufficient to remedy a proven violation of Title VII. This is such a case.\"). In addition, the plurality found that the remedy satisfied \"even the most rigorous [equal protection] test--it is narrowly tailored to further the Government's compelling interest in remedying past discrimination.\" 106 S.Ct. at 3053 (Brennan, J., joined by Marshall, J., Blackmun, J., and Stevens, J.). The plurality explicitly declined to hold, however, that this most stringent test was in fact the proper test to be applied in analyzing the constitutionality of race-conscious remedial measures. 106 S.Ct. at 3052-53. In his determination that the remedy in Local 28, Sheet Metal Workers was narrowly tailored, Justice Powell relied on the lack of any other effective remedy, the temporary nature of the remedy, the direct relation between the goal and the percentage of minorities in the relevant workforce, the flexible application of the remedy, and its failure to disadvantage white workers. 106 S.Ct. at 3055-57.\n \n \n 27\n We examine the remedy in this case to see that it meets Justice Brennan's four criteria for an appropriate remedy under Title VII and, as did the plurality, we assume that the Constitution requires a narrowly tailored remedy. Although the referral levels here seem at first blush to be a more drastic remedy than the 29% membership goal in Local 28, Sheet Metal Workers, careful examination of the circumstances shows that this remedy is not at variance with the analysis used by the Supreme Court to uphold the membership goal. In addition, the Union, focusing on injury to white workers and lack of fit between remedy and problem, has raised no consideration unanticipated by the Court in Local 28, Sheet Metal Workers.\n \n \n 28\n Each factor that led to the affirmance in Local 28, Sheet Metal Workers is also present in the case before us. First, Judge Bechtle's memorandum in support of his orders makes clear that extending the decree addresses persistent discrimination. He found that the hiring hall still serves as a \"tool of discrimination.\" App. at 676. The referral requirements have been extended by Judge Bechtle in an effort to end at last the Union's proven discriminatory ways. Therefore, they are not merely racial balancing measures, measures that the Court in Local 28, Sheet Metal Workers indicated would be inappropriate under Title VII. 106 S.Ct. at 3038 (Brennan, J., joined by Marshall, J., Blackmun, J., and Stevens, J.) (citing legislative history).\n \n \n 29\n Second, Judge Bechtle treats the referral requirements as flexible goals rather than as strict quotas that can, in and of themselves, result in Union contempt citations. In its October order the district court held the Union in contempt for failure to achieve work levels that, given the actual circumstances, could have been achieved. Neither the failure to meet the minority hours goals nor the failure to meet the subsidiary referral goals mechanically triggered the contempt ruling. Rather, the court sanctioned the Union for efforts \"calculated to show the minimum of change at the least cost to the Union's continuous program of wearisome and intentional racial discrimination.\" App. at 677-78. Furthermore, the court has been flexible in setting the Union's referral requirements and in aiding compliance with them. Because the court found that the recall privilege frustrated the Union's performance under the decree, it restricted this privilege in the course of extending the decree. The court also stated that it would reevaluate the recall privilege's impact after the 30-day time limit went into effect, and that it would make further adjustments if necessary. App. at 675. Referral levels have been repeatedly reexamined and have been set at the estimated level necessary for hours of minority work that match the percentage of minorities in the workforce population.1 The lower court uses the referral levels to gauge achievement of the ultimate goal, work levels consistent with overcoming the Union's past discrimination.\n \n \n 30\n The court has shown its willingness to aid the Union in any way possible as Local 542 attempts to increase minority referrals and thus minority work, even to the point of doing away with the recall privilege altogether. An injunctive decree under Title VII can alter the Union's collective bargaining agreement if necessary to end discrimination. General Building Contractors Ass'n, Inc. v. Pennsylvania, 458 U.S. 375, 400, 102 S.Ct. 3141, 3155, 73 L.Ed.2d 835 (1982) (this case). During a January, 1986, conference, for example, the court and counsel for the Union had the following exchange:\n \n \n 31\n The Court: I agree with you, and I am glad to hear that the union is unhappy with the recall, because I am and the plaintiffs are and it will be easy to get rid of it.\n \n \n 32\n Mr. Collins: We are unhappy with being held accountable for it.\n \n \n 33\n The Court: Well, you are. You are in charge of the employment, and it has a lot of features to it.\n \n \n 34\n * * *\n \n \n 35\n We will just have to take it a step at a time and remove every obstacle in the way of the Court's goal, and the Court will achieve it.\n \n \n 36\n Supp.App. at 37. The Union has repeatedly asserted that the recall privilege must be preserved so that it can maintain its relations with employers. Local 542 argues that contractors will not enter into collective bargaining agreements that lack a recall provision. Judge Bechtle has weighed this consideration in determining the features of the extended decree. The recall right has been preserved for 30 days after an employer lays off a Union member, but if necessary to achieve adequate minority referrals the new Hiring Hall Monitor has been given the power to deny any recall request. These measures are indicative of the district court's flexibility and caution in prescribing the means by which the Union will remedy its prior conduct and of the court's concern that the Union not be made to endure unduly harsh measures because of any discriminatory actions by others.\n \n \n 37\n Third, the court extended the decree as a temporary measure necessary to counteract continuing discrimination. If the Union acts to comply with the decree, it will finally achieve appropriate minority work levels by the summer of 1987. Since the decree expires on August 31, 1987, the court order in question will not serve to maintain a non-discriminatory situation. Once the imbalance in work levels created by intentional discrimination is corrected, judicial enforcement will end.\n \n \n 38\n Fourth, the referral requirements do not interfere with the legitimate expectations of white workers. To begin with, the Union's 70% dispatch figure is misleading. It relies on statistics gathered before Judge Bechtle reduced the recall period. He reduced the recall period with the reasonable expectation that the change would decrease the number of jobs taken by recall (and thereby allow the Union to dispatch minority workers at a lower percentage rate and still meet the decree's goals). App. at 675. The Hiring Hall Monitor's new power should have the same effect of reducing the impact of white worker recalls. The decree specifies referrals, not dispatches, and the referral levels range from .9% to 40%. These are the percentages with which this Court must concern itself.\n \n \n 39\n Courts have often set high referral or promotion levels in order to reach minority work levels commensurate with the proportion of minorities in the population. The decree upheld in United States v. Int'l Union of Elevator Constructors, Local Union No. 5, 538 F.2d 1012 (3d Cir.1976), for example, provided for a union membership goal of 23% as well as a referral level of 33.33%. As in the present case, modifications were made in the decree in Bolden v. Pennsylvania State Police, 73 F.R.D. 370 (E.D.Pa.1976), because the effects of prior discrimination were not being eradicated under the initial decree. The modified decree there set a goal of 9.2% minority corporals, sergeants, and lieutenants, with a promotion level set at 33.33% for minorities and a 50% rate of admitting minorities to each police academy class. As in prior cases, the decree here aims for minority work proportionate to minorities in the population; a 40% referral level in District 1 has become necessary to reach this goal.2\n \n \n 40\n Most importantly, white workers dispatched more slowly than minority workers have no vested interest in the work hours that they are being denied. These workers could expect excess work in the past because of the Union's discriminatory behavior. The decree here does not interfere with a valid seniority system, as the remedy did do in a case heavily relied upon by the Union, Ford Motor Co. v. EEOC, 458 U.S. 219, 102 S.Ct. 3057, 73 L.Ed.2d 721 (1982), but instead aims to correct the specific practices upon which the Union's Title VII liability is based. This court rejected the legitimacy of the Union's past referral hierarchy in an earlier round of this litigation:\n \n \n 41\n Here ... the referral system, which operates on seniority principles, was found by the district court to be not bona fide. Indeed, it was found to be the very mechanism of the intentional race discrimination. A seniority system which is created or maintained with discriminatory intent is by definition not bona fide.\n \n \n 42\n App. at 658. Basic principles of equity do not allow lucky individuals to continue to benefit directly from unlawful behavior once the illegality has been proven in court. A temporary injunctive decree aimed at ridding the referral system of discrimination corrects injustices rather than imposing new ones, as the Union tries to suggest.\n \n \n 43\n We agree wholeheartedly with the dissent that the impact on white workers must be considered here, but the dissent misconstrues \"the burden imposed on innocent nonminorities.\" At 342. The most important concern for both white and minority Union members who rely on the hiring hall for their livelihood is the number of hours worked, not the number of dispatches or recalls received. By focusing on the delay in dispatching white workers that results from the decree, the dissent appears to lose sight of the fact that once on the job, white workers have been kept on the job for significantly longer periods of time, thereby earning considerably more take-home pay. The district court raised the referral goals because of this development. App. at 673 n. 6. Thus although minority workers may remain out of work for shorter periods, they are often out of work and they continue to receive less than their share of the important commodity--their hourly wage.\n \n \n 44\n Furthermore, contrary to the suggestions of the dissent, the burden imposed by the decree on nonminority Union members is spread among all of these workers. The injunction speaks only of referrals, by any method, and of hours worked. The extended decree in no way determines that certain white workers will be recalled consistently, while others must \"bat out of the hall.\" If this is indeed the case--and the record does not substantiate it--there is no reason to believe it results from anything other than bona fide competition in the market for operating engineers.\n \n \n 45\n Finally, the referral requirements were narrowly tailored by the district court to counteract discrimination in the allocation of work obtained through Local 542's exclusive hiring hall. An unchallenged finding of fact declares that minority workers have been denied their fair share of the hours worked by Union members. In ordering the Union to refer minority workers at a rate that will give those discriminated against in the past an appropriate share of the work, the court is remedying this discrimination in the only way possible given the nature of the industry. When it first imposed the affirmative, race-conscious requirements of the initial injunction, the district court stated, \"There is simply no other way, given the circumstances of this case, to effectively remedy the discrimination found here.\" 488 F.Supp. at 993. This conclusion was affirmed by this Court when the case was first here. The district court has expanded the decree only after it became clear that greater enforcement efforts were necessary to guarantee relief from the Union's illegal conduct.\n \n \n 46\n We share a number of the concerns expressed in the dissent of Judge Cowen. We find ourselves in disagreement with the dissent, however, because we believe the efforts of the district judge equitably to reconcile the conflicting interests before him must be judged on the basis of the record and posture of this case when he was called upon to make the decision we here review. The issue, as we see it, is not whether it would be preferable to have a sufficient record to determine whether employer discrimination is currently taking place and, if so, whether it would be preferable for someone to join one or more employers. Rather, the issue is whether, given the record in this case, the district judge abused his discretion when he extended the decree for two years in an effort to secure for the plaintiffs the fair share of working hours which they previously had been found to deserve.\n \n \n 47\n In 1961, the Union insisted upon and won a hiring hall system which forced the channeling of all employment opportunities with contractors in the industry through the hands of the Union. The record in this case shows that the Union has deliberately manipulated that system to the plaintiffs' detriment for over two decades during which period the white members of the Union have received far more than their fair share of working hours and wages. In 1979, the district court held that plaintiffs were entitled to a remedy that would result in their obtaining working hours proportionate to the minority representation in the workforce; that decision was affirmed by the Supreme Court.\n \n \n 48\n It was in this context that the hearings were held which culminated in the extension of the decree. In those hearings the Union conceded that after five years of waiting the plaintiffs had not secured the relief to which they were entitled. Moreover, the plaintiffs' evidence demonstrated, as the court found, that the Union could have complied with the referral requirements and this would likely have provided plaintiffs with their fair share of working hours. When called upon to explain why it had not done so, the Union only pointed to the fact that, under the 90-day recall provision, the employers controlled 56% of the hours worked through recall and only 13%, rather than 18%, of the recalls went to minority workers. The Union did not tender evidence tending to show what phenomenon or phenomena are producing this statistical disparity. Judge Cowen posits four plausible candidates, three of which can be attributed to the Union and one of which cannot. The difficulty with the dissent's point is that on this record, one can only speculate as to there being any discrimination by anyone other than the Union. As the Master stressed in his report, when asked to explain why it had not given plaintiffs their due, the Union produced \"no evidence\" that recalls by any employer or employers had been the result of discrimination on the employer's part.\n \n \n 49\n Despite the failure of the Union to produce any evidence of employer discrimination, the district court was sensitive to the problem that the 90-day recall provision created for the Union. It agreed to take steps to reduce the number of hours controlled by the employer and gave the Hiring Hall Monitor authority to deny any recall request. If the Union obtains information indicating that one or more employers are engaging in discrimination, it is free to seek further interim aid from the district court. Moreover, if it obtains such information, it will owe an affirmative duty to its minority members to take action against the offending employer or employers to enforce the non-discrimination provisions of its collective bargaining agreements. Goodman v. Lukens Steel Co., 777 F.2d 113 (3d Cir.1985). Contrary to the suggestion of the Union, there is nothing in the record to indicate that the extension of the decree worked a change by which the discriminating Union became the helpless victim of employer discrimination.\n \n \n 50\n The extended decree issued by the district court mandates the type of affirmative, race-conscious relief contemplated by the Supreme Court in Local 28, Sheet Metal Workers.3 The referral requirements in this case violate neither Title VII nor the Constitution. They are part of a flexible, well-designed district court plan to end protracted discrimination. Local 542's allegations of inequity lack merit. Therefore, we conclude that the district court did not abuse its discretion in issuing the orders in question. Consequently, the extended decree will be affirmed.\n \n COWEN, District Judge, dissenting:\n \n 51\n Providing an effective remedy for racial discrimination remains one of the most important tasks of the federal courts. Nevertheless, when a federal court promulgates a decree that distinguishes between individuals on the basis of race, the decree must be narrowly tailored to the violations it seeks to correct and must respect the legitimate interests of all affected by it. Since the decree in this case is not narrowly tailored and fails to adequately respect the legitimate interests of nonminority members of Local 542, I respectfully dissent.\n \n \n 52\n * In Local 28, Sheet Metal Workers v. EEOC, --- U.S. ----, 106 S.Ct. 3019, 92 L.Ed.2d 344 (1986) the Supreme Court held that affirmative, race-conscious remedies are sometimes appropriate even if individuals who are not identifiable victims of past discrimination benefit thereby.\n \n \n 53\n A plurality of four Justices (Brennan, J., joined by Marshall, J., Blackmun, J., and Stevens, J.) specifically noted that they \"do not mean to suggest that such relief is always proper.\" 106 S.Ct. at 3050. Instead, although acknowledging that the fashioning of appropriate remedies invokes the equitable discretion of the district court, the plurality\n \n \n 54\n emphasize[d] that a court's judgment should be guided by sound legal principles. In particular, the court should exercise its discretion with an eye towards Congress' concern that race-conscious affirmative measures not be invoked simply to create a racially balanced work force.\n \n Id. The plurality also noted that\n \n 55\n a court should consider whether affirmative action is necessary to remedy past discrimination in a particular case before imposing such measures, and that the court should also take care to tailor its orders to fit the nature of the violation it seeks to correct.\n \n \n 56\n Id.\n \n \n 57\n Justice Powell, whose fifth vote was essential to the judgment of the court, agreed that a race-conscious remedy must be narrowly tailored. 106 S.Ct. at 3050 (Powell, J., concurring in part and concurring in the judgment).1 Unlike the plurality, which rested on general equitable principles for this conclusion, Justice Powell relied on equal protection doctrine. Id. Thus all five Justices who upheld the particular remedy at issue in Local 28 stated that a federal court may not impose a race-conscious remedy unless that remedy is tailored to fit the nature of the violation it seeks to correct.\n \n \n 58\n To understand the problems with the remedy crafted by the district court in this case, three terms regarding the operation of the hiring hall must be explained:\n \n \n 59\n Dispatch refers to the practice of an employer calling the hiring hall with a job to fill. The union is to send out the next qualified member on the applicable out-of-work list.\n \n \n 60\n Recall refers to the practice of an employer calling back a particular union member who has recently worked for him.\n \n \n 61\n Referral, as used in the court decrees, was interpreted in September of 1984 to include both dispatches and recalls.\n \n \n 62\n See App. at 645.\n \n \n 63\n The original decree in this case was scheduled to expire by its own terms on August 31, 1985. Plaintiffs sought an extension of the decree because, although the decree (after modifications in 1983 and 1984) required that they work 18% of the hours and receive 40% of the referrals, they were not receiving the required hours and referrals. (For convenience, all percentage references are to District 1, the district with the highest percentage of minorities.) It is undisputed that the union was giving 40% of its dispatches to minorities. However, only 13% of recalls by employers went to minorities. Minorities, therefore, did not receive the 40% referral rate required by the court. The district court specifically stated that \"without the employer recall feature, the Union would have met the court mandated 40% minority referrals.\" App. at 674.\n \n \n 64\n Assuming, as is likely, that racial discrimination is involved, there are four possible explanations for the shortfall in minority referrals despite the 40% minority dispatch rate:\n \n \n 65\n 1) the union continued to discriminate by manipulating the dispatches in order to give more desirable jobs (i.e. jobs with a greater likelihood of producing a recall) to nonminorities;\n \n \n 66\n 2) the union continued to discriminate by providing inadequate training to minorities and thereby rendering them less attractive to employers;\n \n \n 67\n 3) the effects of prior union discrimination were not dissipated because employers need time before they are sufficiently familiar with an employee's work that they are likely to recall him;\n \n \n 68\n 4) employers discriminated against minorities.\n \n \n 69\n If union manipulation was the cause of the shortfall, then it is certainly appropriate to impose a remedy on the union. Indeed, Judge Higginbotham premised his finding of discrimination in part upon the failure of the union to adhere to its own rules governing referrals from the out-of-work lists. (\"The union procedure in general constituted a motley fabric of arbitrary departures from the rules.\" 469 F.Supp. at 381). However, although the district court in extending the decree found that the union \"has continued to use the hiring hall as a tool of discrimination,\" App. at 676, the court did not explain this statement or point to any evidence of manipulation. Rather, it appears that the district court based this conclusion on the fact of the referral shortfall itself.2 The majority makes precisely the same error in concluding that \"[t]he referral requirements have been extended ... in an effort to end at last the Union's proven discriminatory ways.\" Majority at 335.\n \n \n 70\n Similarly, if the cause of the shortfall is the inadequate training of minorities by the union, further remedial action by the union is necessary. However, if inadequate training is the cause, the remedy should be focused on training and not on dispatches.\n \n \n 71\n If the referral shortfall is one of \"the lingering effects of pervasive discrimination,\" further remedial requirements placed on the union may be appropriate. See Local 28, 106 S.Ct. at 3050 (plurality opinion).\n \n \n 72\n On the other hand, if employer discrimination is the cause of the shortfall, then there is simply no justification on this record to hold the union responsible. It is clear that employers control the number of hours worked per referral and that they have kept white workers on the job longer. See Majority at 331. It is also clear that employers more frequently recall white workers. See Majority at 333. Certainly these facts suggest the possibility of employer discrimination.\n \n \n 73\n The district court did not explore which of the foregoing possible causes actually caused the shortfall. In the absence of such an inquiry, the possibility is all too real that the union is being held responsible for remedying the employers' discrimination. The majority concludes that since the union did not prove employer discrimination, this possibility is of no concern. Yet the majority concedes that \"one can only speculate\" as to the cause of the shortfall. Majority at 338. Such a remedy cannot be considered narrowly tailored to fit the violation it seeks to correct.\n \n II\n \n 74\n Both the plurality and the concurrence in Local 28 stated plainly that a race-conscious remedy cannot be imposed which unnecessarily trammels the interests of nonminorities. 106 S.Ct. at 3052 (plurality); 106 S.Ct. at 3055 (Powell, J., concurring in part and concurring in the judgment); see also Wygant v. Jackson Board of Education, --- U.S. ----, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986). The majority declares that the interests of white workers are not legitimate and asserts that \"[t]hese workers could expect excess work in the past because of the Union's discriminatory behavior.\" Majority at 336 (emphasis in original).3 There are two serious flaws in this reasoning.\n \n \n 75\n First, the majority assumes, without any factual foundation, that the nonminority employees who rely on dispatches for work are the same individuals who received more than their fair share of dispatches in the past. Certainly the interests of an individual who did not receive such benefits from discrimination cannot be brushed aside as illegitimate.\n \n \n 76\n Second, and perhaps more fundamental, the majority's analysis is apparently based upon a misunderstanding of the nature of the interest involved. Under the hiring hall procedures embodied in the collective bargaining agreement, a worker is to be dispatched based on the length of time he has been out of work: the longer he is out of work the sooner he can expect to be dispatched. This interest is entirely independent of any prior discrimination.4\n \n \n 77\n It is true that in the past the union disregarded the rules of the dispatch system in a racially discriminatory manner. Absent a finding that such behavior continues, however, the interests created by the equitable system of \"first laid off, first re-hired\" must be considered legitimate.5\n \n \n 78\n Nor can the majority rely on this court's prior opinion regarding the applicability of Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 104 S.Ct. 2576, 81 L.Ed.2d 483 (1984). See Majority at 335. In distinguishing Stotts from this case, the prior decision correctly noted that this case does not involve a bona fide seniority system. App. at 658-59. However, simply because the nonminority workers have no legitimate interests based on seniority does not mean that they have no legitimate interests at all; nor does it mean that they have no legitimate interests based on the length of time they have been out of work.\n \n \n 79\n Once the interests of nonminority workers are recognized, at least in part, to be legitimate, it is necessary to determine whether those interests have been sufficiently respected by the decree. Two interrelated factors must be considered: the seriousness of the burden imposed and the diffuseness of that burden.\n \n \n 80\n In Wygant v. Jackson Board of Education, --- U.S. ----, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986), the Supreme Court held that a race-conscious system of determining layoffs violated the Equal Protection Clause. Although no opinion commanded a majority of the Court,6 the plurality emphasized that being laid off from a job is far more burdensome than not being hired in the first place. A layoff can severely disrupt an individual's life while a hiring goal, like a school admissions goal, often forecloses only one of several possibilities. 106 S.Ct. at 1851-52. Similarly, the plurality emphasized that a layoff imposes the entire burden on the particular individuals laid off while a hiring goal diffuses that burden among all potential applicants. Because of the severe burden imposed on particular individuals, the plurality concluded that the layoffs violated the Equal Protection Clause. Id.\n \n \n 81\n The decision in Wygant largely foreshadowed the decision on Local 28. Local 28 involved a membership goal rather than layoffs. The plurality noted that the membership goal \"did not require any member of the union to be laid off, and did not discriminate against existing union members.\" 106 S.Ct. at 3053 (emphasis in original). Justice Powell analogized a membership goal to a hiring goal and specifically relied on the plurality opinion in Wygant for the proposition that a hiring goal typically imposes a less severe and more diffuse burden than a layoff. 106 S.Ct. at 3057.\n \n Justice Powell also stated:\n \n 82\n Of course, it is too simplistic to conclude from the combined holdings of Wygant and this case that hiring goals withstand constitutional muster whereas layoff goals ... do not. There may be cases, for example, where a hiring goal in a particularly specialized area of employment would have the same pernicious effect as the layoff goal in Wygant. The proper constitutional inquiry focuses on the effect, if any, and the diffuseness of the burden imposed on innocent nonminorities, not on the label applied to the particular employment plan at issue.\n \n \n 83\n 106 S.Ct. at 3057, n. 3.\n \n \n 84\n In this case, the burden imposed on innocent nonminorities individuals is heavy: each nonminority worker is dispatched to work far less often than each minority worker. For a worker who must \"bat out of the hall,\" relying on such dispatches to earn a living, the impact is clearly severe. The burden if far more analogous to a layoff than to a hiring since the impact is not simply on one option among many, but rather on all options for union work in his chosen trade in the geographical area. Indeed, the employment practice at issue is simply one aspect of a layoff: the decision as to who gets summoned back to work after a layoff. Certainly the defendant board of education in Wygant, after laying-off teachers without regard to race in compliance with the Supreme Court's decision, could not call those teachers back to work on a racial basis.\n \n \n 85\n In addition, the burden is not diffused at all. It is not diffused among all potential applicants for jobs as operating engineers. It is not even diffused among all current operating engineers, since those operating engineers who have either long-term jobs with particular employing contractors or good relationships with contractors and therefore get recalls do not share in the burden. Instead the burden is placed squarely on the shoulders of those least able to bear it: those workers who do not have a good relationship with contractors and therefore must \"bat out of the hall.\" The majority callously refers to these people as \"lucky individuals [who] continue to benefit directly from unlawful behavior.\" Majority at 337. I suggest that these workers, far from being \"lucky,\" are among the least fortunate of all operating engineers and yet are made to bear the entire burden of achieving the court's goal.\n \n \n 86\n A member of the Local 542 legitimately expects that he will return to work after a layoff as soon as a job that he can do is available, provided he has been out of work longer than anyone else on his out-of-work list. This legitimate interest is unnecessarily trammelled by the court's decree since particular individuals are forced to bear a severe burden.\n \n III\n \n 87\n There is a more general problem with the approach taken by the district court since the case was remanded by the Supreme Court. The issues presented on this appeal all stem from this more general problem.\n \n \n 88\n I agree with the majority that when Judge Higginbotham fashioned the original decree, the \"ultimate objective was to achieve, at the end of [the decree's] life, a level of hours worked by minority Union members commensurate with the percentage of minority persons in the local workforce population.\" Majority at 331. Judge Higginbotham was acutely aware that what really mattered in the end was wages and hours. He wrote:\n \n \n 89\n In the final analysis, the brilliant briefs of counsel, the flash of eloquent arguments, the citations in the future to their case as significant precedent, and even the drama of a packed courtroom will never be adequate mementos for the victims of discrimination who desire money and jobs now.\n \n \n 90\n 488 F.Supp. 988, 991 (emphasis in original).\n \n \n 91\n I also agree that the referral levels, among other requirement, were subsidiary obligations designed to aid in achieving the hours goals. See Majority at 331. As the majority correctly notes, the decree also provided that referral levels could be increased if necessary to reach the appropriate levels of hours worked. See Majority at 331. Such a structure for the decree made eminent sense at the time since the decree imposed obligations on both the union and the contractors in order to achieve the ultimate goal.\n \n \n 92\n However, the Supreme Court determined that no significant obligations could be imposed on the contractors since it had not been proven that they engaged in intentional discrimination. 458 U.S. 375, 102 S.Ct. 3141, 73 L.Ed.2d 835 (1982). On remand, the district court simply sought to achieve the same ultimate goal without the presence of the contractors. Taking advantage of the provision in the original decree for adjustment of referral goals, the district court gradually increased the referral goals in an attempt to reach the requisite hours. Along the way, the court defined referrals to include recalls. I believe that this approach was fundamentally misguided, based on a misinterpretation of the original decree, and failed to follow the path charted for the district court by the Supreme Court's decision.\n \n \n 93\n The approach was fundamentally misguided because it insisted on achieving a goal which required the actions of both the union and the contractors even though the contractors were no longer bound.7 This flaw is highlighted by the difficulties the court has had with the recall provision in the collective bargaining agreement. There is no doubt that the recall provision is a major obstacle to achievement of the hours goals of the decree.8 Only 13% of the recalls by contractors are for minority workers, even though 40% of the dispatched workers which the contractors receive from the union are members of minority groups.\n \n \n 94\n In order to deal with this problem, the district court reduced the recall period from 90 days to 30 days. The majority emphasizes that the district court \"has shown its willingness to aid the Union ... even to the point of doing away with the recall provisions altogether.\" Majority at 335. But what would happen if the district court were to totally eliminate the recall provision? It is undisputed that the contractors only agreed to a hiring hall arrangement if they retained the right to recall. Indeed, a ten week strike was required to compel the contractors to accede to the hiring hall at all. See 458 U.S. at 378-89, 102 S.Ct. 3143-44. If recall were eliminated and the hiring hall arrangement discontinued, it seems obvious that the union, without the contractors' presence, could not achieve the hours goals. The district court is therefore caught in a balancing act: it uses the hiring hall to approach the hours goals despite the actions of the contractors, but cannot go too far lest it risk losing the only handle it has on achieving those goals.\n \n \n 95\n The district court has also interpreted the term \"referrals\" to include recalls. I believe that this is a misinterpretation of the original decree. The use of the term \"referrals\" in the original decree itself suggests that it does not include recalls. Paragraph 14, which concerns referrals, only mentions out-of-work lists. See 502 F.Supp. at 10. Out-of-work lists are relevant only to dispatches.\n \n \n 96\n Moreover, nowhere in Judge Higginbotham's discussion of the evidence of discrimination in referrals is there any suggestion that recalls are included. The entire discussion focuses on out-of-work lists, which, as noted above, are relevant only to dispatches. See 469 F.Supp. 355-57. Indeed, the only mention of the term \"recall\" which I have located in Judge Higginbotham's entire liability opinion (which occupies ninety-one pages in the Federal Supplement) indicates that his understanding of \"referral\" did not include dispatches. In describing the hiring hall system, he wrote:\n \n \n 97\n Other restrictions pertaining to referral are the three refusal rule and the 90 day no-recall rule. An operating engineer who refuses without excuse an offer of employment three consecutive times is to be placed at the bottom of his out-of-work list. No employer is to recall outside the referral system after 90 days of separation.\n \n \n 98\n 469 F.Supp. at 340, n. 5. (emphasis added).\n \n \n 99\n Lastly, the district court on remand failed to follow the path charted for it by the Supreme Court's decision. The Court specifically stated:\n \n \n 100\n If the Union and the JATC [Joint Apprenticeship and Training Committee] comply with the decree by training and referring minority workers, we see no reason, absent supporting evidence, that the employers will not hire the minority workers referred pursuant to the collective bargaining agreement, and employ them at wages and hours commensurate with those of nonminority workers. If experience proves otherwise, the District Court will then have more than sufficient grounds for including the employers within the scope of the remedial decree.\n \n \n 101\n 458 U.S. at 400, 102 S.Ct. at 3155.\n \n \n 102\n The union has complied with the original decree's referral requirements by its level of performance in dispatching minority workers. No issues concerning training obligations are currently before the court. It is incumbent upon the district court to determine whether it is the lack of adequate training by the union or the JATC, racial discrimination by the contractors, or some other cause, which is producing the shortfall. If the reason for the shortfall is failure of the union or the JATC to comply with the decree's training requirements, then strong measures are appropriate to compel compliance. If, however, the reason for the shortfall is contractor discrimination, then, as the Supreme Court foresaw, it is time to bring the contractors back into the case.\n \n IV\n \n 103\n For the reasons explained above, I would vacate the extended decree's referral requirements and remand for a determination of the cause of the disparity between the dispatch rate on the one hand and the recall rate and hours percentage on the other hand. I would also instruct the district court to respect the legitimate interests of nonminority workers in any new remedial decree.\n \n \n \n *\n Honorable Robert E. Cowen, United States District Judge for the District of New Jersey, sitting by designation\n \n \n 1\n Thus both the referral levels and the hours-worked goals are \"directly related to the percentage of nonwhites in the relevant workforce,\" an aspect of appropriate remedies emphasized by Justice Powell. 106 S.Ct. at 3056\n \n \n 2\n The original referral goals, approved by this court in 1981, ranged from .7% to 18%. When the Union challenged the injunctive decree under Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 104 S.Ct. 2576, 81 L.Ed.2d 483 (1984), the decree as upheld by this court included the very same referral levels now directly challenged. Commonwealth of Pennsylvania v. Local Union 542, Int'l Union of Operating Engineers, 770 F.2d 1068 (3d Cir.1985) (table), cert. denied, --- U.S. ----, 106 S.Ct. 803, 88 L.Ed.2d 779 (1986)\n \n \n 3\n Justice Brennan's opinion cites the recent Third Circuit Court of Appeals decision in this case upholding this injunction, including the current referral requirements, for the proposition that racial preferences are appropriate under certain circumstances. 106 S.Ct. at 3037 (Brennan, J., joined by Marshall, J., Blackmun, J., and Stevens, J.)\n \n \n 1\n Justice Powell also stated that the percentages set should be \"directly related to the percentage of nonwhites in the relevant workforce.\" 106 S.Ct. at 3056. In this case, the 40% referral rate in District 1 is double the approximately 20% of the relevant population who are members of the minority groups. The majority concludes that the \"direct relationship\" requirement is met because the 40% referral rate was set in order to achieve hours commensurate with the percentage of minorities in the relevant population. I question whether this is the sort of \"direct relationship\" which Justice Powell had in mind. Because I would rest on other grounds, I need not reach this issue. Further elucidation may be forthcoming from the Supreme Court in the near future. See U.S. v. Paradise, No. 85-999 (argued November 12, 1986)\n \n \n 2\n Moreover, the union does not challenge on appeal the decision by the district court to appoint a monitor to run the hiring hall. A court-appointed monitor in the hiring hall can certainly prevent any manipulation by the union\n \n \n 3\n The majority also states that \"the impact on white workers must be considered.\" Majority at 337. I do not understand why the \"impact\" on those whose interests are deemed illegitimate must be considered\n \n \n 4\n There may be some interests which nonminorities have in the dispatch system which can be considered illegitimate because they are based on prior discrimination. Separate out-of-work lists are maintained for different levels of experience. In addition, a worker without the specific skills an employer demands for a specific job can be bypassed on the applicable out-of-work list. To the extent that a nonminority worker has greater skills and experience because of prior discrimination, his interests can be discounted. This conclusion, however, does not undermine the legitimacy of his interests based solely on his length of time out of work\n \n \n 5\n The majority's reasoning can also be read to suggest that once a procedure is tainted by discrimination, even a non-discriminatory use of that procedure is illegitimate. Such a conclusion is simply unsupportable\n \n \n 6\n Justice Marshall, joined by Justices Brennan and Blackmun, commented: \"I do not envy the District Court its task of sorting out what this Court has and has not held today.\" 106 S.Ct. at 1867\n \n \n 7\n It is ironic that the majority quotes Judge Higginbotham's statement that \"[t]here is simply no other way, given the circumstances of the case, to effectively remedy the discrimination found here.\" Majority at 337. That statement referred to a decree that included both the union and the contractors. It certainly does not support the proposition that the decree as originally crafted could properly be imposed on the union alone\n \n \n 8\n It is not the only obstacle. Another significant obstacle is the contractors' control over how long a job lasts\n \n \n ",
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| Third Circuit | Court of Appeals for the Third Circuit | F | USA, Federal |
249,397 | Cameron, Jones, Per Curiam, Rives | 1960-01-21 | false | homer-s-head-v-a-a-wollmann-jr-a-a-wollmann-jr-v-homer-s-head | null | Homer S. Head v. A. A. Wollmann, Jr., A. A. Wollmann, Jr. v. Homer S. Head | Homer S. HEAD, Appellant, v. A. A. WOLLMANN, Jr., Appellee; A. A. WOLLMANN, Jr., Appellant, v. Homer S. HEAD, Appellee | Cameron, Circuit Judge, dissented from ■ portion of order denying petition for rehearing of second defendant and concurred in residue., James P. Bailey, Bryan, Suhr & Bering, Houston, Tex., for appellant., C. O. Ryan, Thomas M. Ryan, Houston, Tex., Kelley & Ryan, Houston, Tex., of counsel, for appellee. | null | null | null | null | null | null | null | Rehearing Denied Jan. 21, 1960. | null | null | 0 | Published | null | <parties data-order="0" data-type="parties" id="b370-3">
Homer S. HEAD, Appellant, v. A. A. WOLLMANN, Jr., Appellee. A. A. WOLLMANN, Jr., Appellant, v. Homer S. HEAD, Appellee.
</parties><br><docketnumber data-order="1" data-type="docketnumber" id="b370-7">
No. 17581.
</docketnumber><br><court data-order="2" data-type="court" id="b370-8">
United States Court of Appeals Fifth Circuit
</court><decisiondate data-order="3" data-type="decisiondate" id="AUv">
Oct 27, 1959.
</decisiondate><br><otherdate data-order="4" data-type="otherdate" id="b370-9">
Rehearing Denied Jan. 21, 1960.
</otherdate><br><p data-order="5" data-type="judges" id="b370-12">
Cameron, Circuit Judge, dissented, and Rives, Chief Judge, concurred in af-firmance but dissented from failure to modify and increase judgment.
</p><br><p data-order="6" data-type="attorneys" id="b370-13">
Cameron, Circuit Judge, dissented from ■ portion of order denying petition for rehearing of second defendant and concurred in residue.
</p><br><attorneys data-order="7" data-type="attorneys" id="b370-22">
James P. Bailey, Bryan, Suhr & Bering, Houston, Tex., for appellant.
</attorneys><br><attorneys data-order="8" data-type="attorneys" id="b370-23">
C. O. Ryan, Thomas M. Ryan, Houston, Tex., Kelley & Ryan, Houston, Tex., of counsel, for appellee.
</attorneys><br><p data-order="9" data-type="judges" id="b370-24">
Before RIVES, Chief Judge, and CAMERON and JONES, Circuit Judges.
</p> | [
"272 F.2d 298"
]
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"opinion_text": "272 F.2d 298\n Homer S. HEAD, Appellant,v.A. A. WOLLMANN, Jr., Appellee.A. A. WOLLMANN, Jr., Appellant,v.Homer S. HEAD, Appellee.\n No. 17581.\n United States Court of Appeals Fifth Circuit.\n Oct. 27, 1959, Rehearing Denied Jan. 21, 1960.\n \n James P. Bailey, Bryan, Suhr & Bering, Houston, Tex., for appellant.\n C. O. Ryan, Thomas M. Ryan, Houston, Tex., Kelley & Ryan, Houston, Tex., of counsel, for appellee.\n Before RIVES, Chief Judge, and CAMERON and JONES, Circuit Judges.\n RIVES, Chief Judge.\n \n \n 1\n This action was brought by the appellee, Wollmann, against the appellant, Head, and also against one Adler Edmiston upon a promissory note in the principal amount of $50,000 signed 'Adler Edmiston, Trustee.' The complaint alleged that in executing and delivering the note, Edmiston acted on his own behalf and as agent for Head and also for one Gordon B. Butterfield, who was not sued. The case was tried to the court without a jury. At the conclusion of the evidence, the plaintiff, with leave of the court, filed an amended complaint to conform to the evidence.1 The amended complaint counted on the promissory note and also on certain written instruments or agreements executed contemporaneously with the note.\n \n \n 2\n The district court filed a memorandum opinion incorporating its findings of fact and conclusions of law, and entered judgment against Edmiston,\n \n \n 3\n '* * * in the sum of Fifty Thousand Dollars ($50,000.00) together with interest thereon at the rate of two per cent (2%) per annum from March 10, 1953 until the date of this judgment, plus ten per cent (10%) of the total amount due as attorney's fees, together with interest upon the entire sum from the date of this judgment at the rate of six per cent (6%) per annum,'\n \n \n 4\n and against Head, 'in the sum of Fifty Thousand Dollars ($50,000.00), together with interest thereon at the rate of six per cent (6%) per annum from the date of this judgment.' It was further provided that the total recovery against both defendants should not exceed the amount of the judgment rendered against Edmiston.\n \n \n 5\n Head alone appealed. Wollmann cross-appealed, but only insofar as the judgment against Head failed to award Wollmann 'interest on the sum of Fifty Thousand Dollars ($50,000.00) at the rate of two per cent (2%) per annum from March 10, 1953 until the date of the judgment, plus ten per cent (10%) of the total amount due as attorney's fees.'\n \n \n 6\n Wollmann was a dentist by profession, who lived in Huron, South Dakota. He had known Butterfield, a Montana resident, for many years and had engaged with Butterfield in previous ventures seeking the discovery and production of oil and gas. Edmiston and Head were citizens of Houston, Texas, who also prospected for and promoted the production of oil and gas.\n \n \n 7\n Butterfield and Edmiston owned a one-eighth overriding royalty interest in a large acreage in San Patricio County, Texas, leased to D and E Drilling Company. That Company had completed a producing well on a part of that acreage and had drilled a second well on another part to almost the same depth when it had decided to plug the second well. It had set cement in the surface pipe and had the well half plugged and the rig torn halfway down when Edmiston induced a Mr. James L. Minahan, a consulting geological engineer of Fort Worth, Texas, to go with him to check 'the Schlumberger electrical log services core analysis' with respect to this second well.\n \n \n 8\n On March 6 or 7th, 1953, Minahan gave his opinion that there was a fifty-fifty chance of completing the well as a producing well. D and E was unwilling to spend further money on the well, and the lease on that part of the acreage would terminate shortly unless further efforts were made to bring the well into production. D and E offered to assign the lease to Edmiston, reserving a fractional three-fourths working interest in itself, if Edmiston would secure the funds necessary and proceed with cleaning and testing operations with a view to securing production. Wolf Drilling Company, which had drilled the well, estimated that $50,000 would be enough to attempt to complete the well as a producer. To keep from losing the rig, Edmiston arranged for the drillers to wait at an expense of $600 a day. Edmiston and Butterfield offered interests in the venture to Minahan and to Head. The four (Edmiston, Butterfield, Minahan, and Head) had several discussions among themselves about raising the necessary $50,000, and Butterfield suggested that he would contact Dr. Wollmann and attempt to secure the funds from him.\n \n \n 9\n Dr. Wollmann and his wife were then at a health resort in Mineral Wells, Texas, and Butterfield met Wollmann there at the Baker Hotel.2 After they had discussed the venture, Butterfield wrote by pen and ink on hotel stationery a letter proposal (hereafter referred to as Plaintiff's Exhibit No. 1) as follows:\n \n \n 10\n 'Dear Doctor Wollmann:\n \n \n 11\n 'Following is understanding of our agreement concerning the participation in completion of the well at Corpus Christi: It is estimated there will be a total cost of $50,000.00 to complete this well and put the oil and gas in the tanks for oil and lines for delivery of the gas.\n \n \n 12\n 'You agree to advance this $50,000.00. We, in turn, agree to do all necessary work in connection with completion of the well, as setout, and to furnish all necessary casing, tubing, cementing, lines, tanks, etc. We further agree to give you a note of even date in amount of $50,000.00, bearing interest at two per cent, due in Nine months, said note to be signed by each, G. B. Butterfield, Adler Edmiston, Homer, S. Head, Sr. and James Minahan, Sr.\n \n \n 13\n 'We further agree that a full 75% of all oil and gas returns will credit toward payment of this note.\n \n \n 14\n 'It is further agreed between us that when this note is paid in full, an assignment will be made to you of Thirty-seven and one-half per cent (37-1/2%) in the working interest in this lease. It is understood that there is a one-eighth (1/8) land owners royalty and a one-eighth overriding royalty outstanding against this lease, making it a Seventy-five per cent (75%) lease.\n \n \n 15\n 'Sincerely, 'Gordon B. Butterfield'\n \n \n 16\n The next day, Dr. Wollmann, accompanied by his wife, drove to Fort Worth to talk with Mr. Minahan. Minahan testified that he made it clear to Dr. Wollmann there in Fort Worth that he was no longer personally interested in the transaction 'because I wouldn't put my money in it.'\n \n \n 17\n The following day, March 9, Dr. Wollmann, still accompanied by his wife, drove to Houston. Mr. Edmiston met them at the hotel clerk's desk as they registered and made arrangements for Dr. Wollmann to discuss the matter on the following day at Mr. Head's office in the Gulf Building in Houston.\n \n \n 18\n At that meeting on March 10, Mr. Edmiston first handed to Dr. Wollmann a note from Mr. Head (hereafter referred to as Plaintiff's Exhibit No. 2) as follows:\n \n \n 19\n 'Homer S. Head-- Oil Operator\n \n \n 20\n 'Gulf Building\n \n \n 21\n 'Houston 2, Texas, March 9, 1953 'Dear Dr. Wollman,\n \n \n 22\n 'It is my understanding that Gordon Butterfield, A. Edmiston, you and I are all agreeable on a deal in San Patricio County, Texas, and that you have a note for $50,000.00 to be signed by Butterfield, Edmiston and myself.\n \n \n 23\n 'I have to leave town and set on a well in Eastland County, Texas. This letter will give you authority to close any deal with Mr. Edmiston and I will sign the note with Messrs. Edmiston and Butterfield at any time.\n \n \n 24\n 'Yours very truly, 'Homer S. Head 'Homer S. Head\n \n \n 25\n '/es 'P.S. I think this is a-1 deal sorry it was necessary for me to leave town-- I hope to see you soon.\n \n \n 26\n 'Homer.'\n \n \n 27\n Dr. Wollmann testified that he showed Mr. Edmiston the letter proposal which he had received from Edmiston (Plaintiff's Exhibit No. 1), and that he used that as a guide in arriving at an agreement. Edmiston testified that he never did see that letter proposal. In any event Dr. Wollmann and Mr. Edmiston, without the benefit of legal advice, undertook to reach an agreement, which Mr. Head's secretary typed, as follows (Plaintiff's Exhibit No. 3):\n \n \n 28\n 'State of Texas 'County of Harris\n \n \n 29\n 'This memorandum of agreement entered into this tenth day of March, 1953, by and between Adler Edmiston, Trustee for Gordon B. Butterfield, Homer, S. Head, and Adler Edmiston, Harris County, Texas, known as the First Party and Dr. A. A. Wollmann, Jr., of Huron, South Dakota, known as the Second Party Witnesseth:\n \n \n 30\n 'First Party has this day taken over a well drilled for oil or gas in San Patricio County, Texas, on a block of land consisting of approximately 409 acres described as follows:\n \n \n 31\n 'Said well was drilled by the Drilling and Exploration Company of Houston, Texas to a depth of 9636' and Schlumberger well log run on said well shows several sands that should be tested for production. First Party has made a deal with Drilling & Exploration Company to take over said well and start immediately to wash down and drill out plug and set casing to a depth of 9500', cement same and make production tests; trying to make a producer out of same.\n \n \n 32\n 'The Drilling & Exploration Company has assigned A. Edmiston, as Trustee for the above mentioned parties and himself, a lease covering the above described 409.25 acres subject to the following conditions to-wit:\n \n \n 33\n 'A. Edmiston is to pay all bills, casing, tanks, Schlumbergers and drilling operations to complete said well with the understanding that the above lease now owned by Drilling & Exploration Company is only a 3/4 lease and said lease is now being assigned to A. Edmiston, Trustee, as follows:\n \n \n 34\n 'A. Edmiston, Trustee, is supposed to received all oil royalties and payments from said well until the cost of completing said well has been reimbursed to A. Edmiston, Trustee. In that event, the Drilling & Exploration Company shall own a 1/4 Working Interest of the 3/4 Lease now assigned to A. Edmiston, Trustee.\n \n \n 35\n 'First Party agrees that all oil, pipe line runs, and checks received from production of said well will be paid to First Party (as Trustee), until First Party has received $50,000.00. The First Party has this date executed a promissory note payable in nine months from date at the rate of 2% interest to Second Party to reimburse him for the money advanced for the completion of the above described well. All monies received from production by First Party shall be paid to Second Party as received to apply on said note until $50,000.00 has been paid and when said well has produced enough money to reimburse Second Party $50,000.00, the balance of the 3/4 of 3/4 interest shall be divided equally as follows: '1/2 to Dr. A. A. Wollmann and 1/2 equally to Homer S. Head, Gordon B. Butterfield and A. Edmiston.\n \n \n 36\n 'A. Edmiston, Trustee, hereby agrees to execute all papers properly as above specified. Second Party has nothing to do with the drilling of the above described well and is not liable for any damages which may occur from said well. A. Edmiston, Trustee, shall have the control of all operations of said well.\n \n \n 37\n 'Witness the Execution Hereof this the 10th day of March, 1953.\n \n \n 38\n 'Adler Edmiston 'Adler Edmiston\n \n \n 39\n '(Seal) 'The State of Texas 'County of Harris\n \n \n 40\n 'Before Me, the undersigned authority, on this day personally appeared Adler Edmiston, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed.\n \n \n 41\n 'Given under my hand and seal of office this the 10th day of March, 1953.\n \n \n 42\n 'Eleanor C. Sanders\n \n \n 43\n 'Eleanor C. Sanders\n \n \n 44\n 'Notary Public, Harris County, Texas\n \n \n 45\n 'My Commission expires 6-1-53'\n \n \n 46\n At the same time, a promissory note and a letter (Plaintiff's Exhibits Nos. 4 and 5) were prepared and delivered to Dr. Wollmann, as follows:\n \n \n 47\n '50,000.00 March 10, 1953 194 ... Nine months after date, for value receive I promise to pay to the order of Dr. A. A. Wollmann Jr. Fifty thousand and no/100 ........ Dollars at Huron, South Dakota\n \n \n 48\n 'With interest after date at the rate of 2 per cent per annum and if not paid at maturity and collected by an attorney or by legal proceedings, an additional sum of ten per cent on the amount of this note as attorney's fees.\n \n \n 49\n 'Due Nov. 10, 1953\n \n \n 50\n '(s) Adler Edmiston\n \n \n 51\n 'Adler Edmiston, Trustee'\n \n \n 52\n 'Dr. A. A. Wollmann, Jr., 'Huron, South Dakota. 'Dear Dr. Wollman:\n \n \n 53\n 'This letter will give Mr. Gordon B. Butterfield of Billings, Montana, the authority to issue 25,000 shares of Wymotex Oil Company of Billings, Montana, stock which is owned by Mr. Butterfield and me and which is to be placed in escrow in a bank to be named by you to satisfy the $50,000.00 furnished us in San Patricio County, Texas.\n \n \n 54\n 'Yours very truly, 'Adler Edmiston 'Adler Edmiston\n \n \n 55\n '/es 'cc: Gordon Butterfield'\n \n \n 56\n Dr. Wollmann then delivered to Mr. Edmiston his check for $50,000.\n \n Dr. Wollmann further testified:\n \n 57\n 'Q. Now, Dr. Wollman, what happened in connection with this transaction after you paid over the $50,000.00, and received these documents from Mr. Edmiston? A. The next day or so, we drove to Corpus Christi, down to where the well was being drilled.\n \n \n 58\n 'Q. And what occurred there, if anything? A. We met Mr. Edmiston, and we were there several days, and to the meantime, Mr. Head came down. We were going back and forth to the well.\n \n \n 59\n 'Q. All right. A. While they were drilling.\n \n \n 60\n 'Q. Did you have any conversation with Mr. Head about the financial aspects of this matter? A. I did.\n \n \n 61\n 'Q. Can you tell us in your own words just what happened at that time? A. I asked him to sign the note, and he told me that I didn't have the proper papers.\n \n \n 62\n 'Q. Was that the only reply he gave to you at that time? A. That's right.\n \n \n 63\n 'Q. Did he ever say that he wouldn't sign the note? A. No.\n \n \n 64\n 'Q. Did you press him about his signing something at that time? A. No, I didn't have the proper papers, so I didn't.'\n \n \n 65\n Mr. Head testified that he simply declined to sign the note, and that Dr. Wollmann had nothing more to say at the time. In connection with this conflict, the examination of Mr. Head by the district judge, quoted in the margin,3 may be revealing.\n \n \n 66\n The well eventually proved to be a dry hole and was finally plugged about January 23, 1955, and the equipment above the ground was then sold.\n \n \n 67\n The respective factual contentions of the parties and the findings of the district court are thus stated in the memorandum opinion (176 F.Supp. 566):\n \n \n 68\n 'It is the plaintiff's testimony, and theory, that under the agreement he was to be repaid, if the venture was unsuccessful, by the two defendants and Butterfield, and that the note evidences that obligation. He contends further that the Wymotex stock was security, to which he might look for satisfaction of the note, if Edmiston, Head and Butterfield otherwise were unable to pay it.\n \n \n 69\n 'In addition to such support as this theory may find in the written instruments, Butterfield corroborates the plaintiff's testimony in every particular. He readily, almost eagerly, admits his own liability, and that of the two defendants. In this respect it is noted that Butterfield was not made a party-defendant here; that he and the plaintiff were friends and successful coadventurers in other matters long before this controversy arose; and, that Butterfield is a recent bankrupt.\n \n \n 70\n 'Head and Edmiston testify that the agreement was not as stated above, or as the written instruments would tend to show. It is their testimony that Wollman was to risk his capital, and they their time and skill in undertaking to make the well produce; and that in the event of failure all were to lose, and that there was to be no repayment. Their testimony is to the effect that the note was never intended to constitute a personal obligation on their part, but was no more than a memorandum of the amount which Wollmann advanced, and to which he was entitled to recoupment from the first oil produced. They explain the Wymotex letter as an alternative defense, in that if Wollman was to be repaid in case of failure, he was to look only to the 25,000 shares above mentioned. This stock was then jointly owned by Edmiston and Butterfield, and had a value of some $2 a share. Since that time, its value has decreased to an extent that it now has little, if any, market value. During the trial, Edmiston indicated his willingness to surrender his share of such stock to Wollman, which he contends would satisfy the obligation.\n \n \n 71\n 'I find the facts to be in accordance with the plaintiff's theory and testimony. I find that it was the understanding of all parties that Wollman was to be repaid in the event the well was a failure, and that the note was intended to, and did, evidence this obligation. I find further that the block of Wymotex stock was intended simply to secure the payment of the obligation, but was not intended to be the sole source to which plaintiff might look for such satisfaction.'\n \n \n 72\n The district court entered judgment against Edmiston for the amount with interest and attorneys' fees due under the promissory note. As to Head, however, the court held:\n \n \n 73\n 'The plaintiff may not recover against Head as a maker of the note, by reason of the terms of Article 5932, 18, Vernon's Annotated Civil Statutes of this State. I find, however, that Head intended to, and by his letter of March 9, 1953 (Ex. 2) did, in writing, authorize Edmiston, as his agent, to deal with Wollman and to bind him (Head) upon any contract so arrived at. I find that Edmiston was authorized to, and did, act as agent for Head, as well as on his own behalf, in executing the 'Memorandum of Agreement' (Ex. 3), and that Head is bound thereby. I find further that the 'Memorandum of Agreement' did no more than reduce to writing the oral understanding previously arrived at between the parties, and to which Head had assented on or before March 9, 1953.\n \n \n 74\n 'I find that Edmiston, Head and Butterfield were not acting as partners in this venture (as contended by plaintiff), and I find that Head did not intend to authorize Edmiston to execute the promissory note (as distinguished from the written contract) as Head's agent. It was contemplated by all concerned that Head and Butterfield would sign individually, and on their own behalf, and that the three would constitute joint makers. While the statute cited above would prevent recovery against Head as maker of the note, it does not prevent recovery for breach of the initial contractual obligation, or for breach of his written promise to sign the note as maker. Head's liability in this respect is clear.1\n \n \n 75\n '* * * Had Head and Butterfield joined in execution of the note, the three would have been liable jointly and severally, and the plaintiff might have sought his recovery in full against any or all.2 Hence, Edmiston, who did sign, has not suffered. Clearly the escrow provision was intended purely as a means of affording the plaintiff additional security. * * *\n \n \n 76\n '1. 6 Tex.Jurs., Bills & Notes, 36 and 116; 10 C.J.S. Bills and Notes 516; Kelley v. Audra Lodge, Tex.Civ.App.1915, 176 S.W. 784; Wood v. Key, Tex.Civ.App.1923, 256 S.W. 314.\n \n \n 77\n '2. Beitel v. Beitel, Tex.Civ.App.1937, 109 S.W.2d 345; Watkin Music Co. v. Basham, 1908, 48 Tex.Civ.App. 505, 106 S.W. 734; Kuykendall v. Coulter, 1894, 7 Tex.Civ.App. 399, 26 S.W. 748.'\n \n \n 78\n Accordingly, the court rendered judgment against Head only for the principal sum of $50,000 with interest from the date of the judgment.\n \n \n 79\n It will be noted from the last sentence of the quoted holdings that the district court had no doubt that the Wymotex stock was simply put up as collateral to secure the payment of the obligation.\n \n \n 80\n 'The holder of a secured note is not required by Texas law to exhaust his security before enforcing the note against the original maker, but may proceed to judgment without reference to the security, whether the same is in the form of a pledge of collaterals or a mortgage on real or personal property.' 6 Tex.Jur., 222, p. 881.\n \n \n 81\n The appellant emphasizes the meaning of the word 'satisfy' in the letter (Plaintiff's Exhibit No. 5) by which the 25,000 shares of stock were 'to be placed in a bank to be named by you to satisfy the $50,000.00 furnished us * * *.'4 The word 'satisfy' would be entitled to more weight if it had been used by a lawyer skilled in the use of language of precise legal significance. It is questionable whether the word was originally chosen even by the two nonlawyers, Wollmann and Edmiston. Mr. Head's secretary testified that they did not dictate the letter to her, 'Mr. Edmiston just gave me a general outline of what he wanted, and I typed the letter.' It is a fair inference that the word 'satisfy' was initially the choice of the stenographer.\n \n \n 82\n While the secretary and Edmiston testified to the most definite understanding that the stock was to be sccepted by Dr. Wollmann in lieu of the money, Dr. Wollmann testified that he and Edmiston talked about the stock being put up simply as collateral. Dr. Wollmann further testified that he attached little importance to the stock, and had not comprehended the provision that it was to be placed in escrow. Actually, that never was done. After the well proved to be a dry hole, Edmiston went to South Dakota and offered Dr. Wollmann not 25,000 shares as specified in the letter, but 50,000 shares of the stock. Dr. Wollmann refused, and testified: 'I asked for my $50,000.00 instead.' We agree with the finding that the stock was intended simply as collateral security. If we disagreed, nevertheless recognizing the superior advantage enjoyed by the district court, which saw and heard the witnesses and observed their demeanor on the stand, we could not set aside the finding as clearly erroneous. Rule 52(a), Federal Rules of Civil Procedure.\n \n \n 83\n Judges JONES and RIVES are in agreement down to this point. Judge JONES would simply affirm the judgment of the district court for reasons stated in a separate concurring opinion. Judge RIVES would go further and, for reasons stated in a separate opinion, would increase the judgment against Head so as to include interest and attorneys' fees. However, in order to reach a decision, Judge RIVES concurs with Judge JONES that the judgment be\n \n \n 84\n Affirmed.\n \n \n 85\n PER CURIAM.\n \n \n 86\n The petitions for rehearing in the above styled and numbered cause are hereby denied.\n \n \n 87\n Judge CAMERON dissents from the portion of the order denying the Petition for Rehearing of Appellant Head and concurs in the residue.\n \n \n 88\n JONES, Circuit Judge (concurring).\n \n \n 89\n It is my view that the appellant authorized Edmiston to bind him on what he refers to as a 'deal' and that he became bound. The district court made its determination as to what the deal was and, among other things, found that the deal included a promise to pay Wollmann if he did not get payment from a producing oil well. This determination is, I think, supported by substantial evidence. It was contemplated by Head that a note would be given to Wollmann. Head's letter to Wollmann says 'You have a note for $50,000.00 to be signed by Butterfield, Edmiston and myself.' Again it is said in the letter, 'I will sign the note with Messrs. Edmiston and Butterfield at any time.' While Edmiston was authorized to bind Head in making the deal, Head reserved to himself the signing of the note. It follows, or so I think, that Head was not obligated on the note and it would be improper to require him to pay the attorneys' fee for which the note stipulated. Although not in agreement with all that is said by the district court, I am convinced that its decision is correct. Wollman v. Head, 176 F.Supp. 563, I concur in the affirmance of its judgment.\n \n \n 90\n RIVES, Chief Judge (concurring in affirmance, but dissenting from the failure to modify and increase the judgment).\n \n \n 91\n While I concur to the extent of at least affirming the judgment against Head, I could hardly do so if I were not of the opinion that Head is liable on the promissory note the same as Edmiston. Butterfield's letter proposal (Plaintiff's Exhibit No. 1) and Head's letter (Plaintiff's Exhibit No. 2) each stated that Head's obligation to repay the $50,000 to Wollmann would be evidenced by a note. The only language that I find in the agreement (Plaintiff's Exhibit No. 3) obligation Head to pay the sum of $50,000 to Wollmann is that referring to the note:\n \n \n 92\n 'The First Party has this date executed a promissory note payable in nine months from date at the rate of 2% interest to Second Party to reimburse him for the money advanced for the completion of the above described well.'\n \n \n 93\n I accept all of the fact findings of the district court except the finding not necessary to support its judgment to the effect that the Wymotex stock has a value of some $2 a share at the time the transaction was closed.1 Among other such findings which I accept are the following:\n \n \n 94\n '* * * I find that Head did not intend to authorize Edmiston to execute the promissory note (as distinguished from the written contract) as Head's agent. It was contemplated by all concerned that Head and Butterfield would sign individually, and on their own behalf, and that the three would constitute joint makers.'\n \n \n 95\n When, however, Head found it necessary to leave town and be absent from the meeting in his office, Edmiston was spurred on by a sense of urgent necessity to definitely close the transaction, and to do so he undertook to sign both the note and the agreement on behalf of Head (and of Butterfield as well as of himself).2\n \n \n 96\n While Edmiston expected Butterfield and Head thereafter to sign the note, he added the word 'Trustee' after his own signature to signify that he was acting not only for himself, but also for Head and for Butterfield. That is made clear by the agreement entered into at the same meeting (Plaintiff's Exhibit 3), 'by and between Adler Edmiston, Trustee for Gordon B. Butterfield, Homer S. Head, and Adler Edmiston, Harris County, Texas, Known as the First Party and Dr. A. A. Wollmann, Jr., of Huron, South Dakota, known as the Second Party.' The agreement recites that, 'The First Party has this date executed a promissory note. * * *' Throughout that agreement, Edmiston is referred to as 'Trustee' with the meaning that he is acting for himself and his two coventurers.3 The testimony is without dispute that, notwithstanding Edmiston's lack of authority to execute the promissory note (as distinguished from the written contract) as Head's agent, Edmiston actually did purport to act on account of Head (as well as of Butterfield and himself) in signing the note, and, hence, his execution of the note could be ratified by Head for '* * * ratification does not result from the affirmance of an act, unless the one acting purports to act on account of another.' 1 A.L.I., Restatement of Agency, 85, p. 204.\n \n \n 97\n Texas has the Uniform Negotiable Instruments Law, which includes Article 5932, Section 18, Vernon's Annotated Civil Statutes of Texas, the statute to which the district court referred.4 That section is followed by two other sections which appear pertinent.5 Clearly, the addition of the word 'Trustee' to Edmiston's signature did not exempt him from personal liability on the note.6 As between the original parties, however, it was permissible to prove, and was in fact shown by the contemporaneous agreement (Plaintiff's Exhibit 3), that the word 'Trustee' was meant to indicate that Edmiston was acting not only for himself, but also for Head and for Butterfield. As between the original parties, the rule is well settled in Texas, as elsewhere,7 that:\n \n \n 98\n 'In considering bills and notes as evidencing an agreement between the parties, application is made of the fundamental rule that other instruments executed at the same time, for the same purpose and in the course of the same transaction are to be construed therewith,-- that is, all the papers are given the same affect as though they were in fact a single instrument.' 6 Tex.Jur., Bills and Notes, 47, p. 644.8\n \n \n 99\n Head's actual signature to the note was the means by which Edmiston had expected that his assumption of authority would be ratified. That was not, however, the exclusive mode of ratification. When Head, with full knowledge of the fact, either by having the note presented to him for his signature, or by the terms of the agreement referring to the note, joined in accepting the benefits (or what were then hoped would be benefits) of the $50,000 check which Dr. Wollmann delivered to Edmiston in return for the note and the other obligations, and joined in expending that fund over a long period of time, he effectually ratified and approved Edmiston's execution of the note on his behalf.9 It cannot be said that that conduct amounted to no more than an unnecessary ratification of the agreement already authorized, for two reasons: (1) The agreement itself, as executed, showed that the 'First Party,' which included Head, had executed the promissory note. (2) In parting with his $50,000, Wollmann relied on the promissory note as well as on the agreement, and he had a right to rely on both. That conduct would result in ratification even if it should be assumed, contrary to the weight of the evidence (see footnote 3 to majority opinion), that Head had theretofore repudiated any liability on the note by flatly refusing to sign it.\n \n \n 100\n 'The affirmance by the principal of a transaction with a third person is not prevented from resulting in ratification by the fact:\n \n \n 101\n '(b) that the purported principal, before affirming, had repudiated the transaction, if the third person has not acted or has failed to act in reliance upon the repudiation.' 1 A.L.I., Restatement of Agency, 92, p. 227.\n \n \n 102\n I would hold Head liable on the promissory note the same as Edmiston.\n \n \n 103\n CAMERON, Circuit Judge (dissenting).\n \n \n 104\n This is an action upon a promissory note. Both the original complaint and the amended complaint, filed over Head's objections, made it plain that Wollmann was suing on the note quoted in the majority opinion.1\n \n \n 105\n The court below found 'that Edmiston, Head and Butterfield were not acting as partners in this venture (as contended by plaintiff), and I find that Head did not intend to authorize Edmiston to execute the promissory note (as distinguished from the written contract) as Head's agent.' The concurring opinion of Judge JONES accepts this finding that the note executed by Edmiston as Head's agent did not bind Head. The court concluded that, as far as the note was concerned, there was nothing in the Texas Statute or the facts which would 'prevent recovery * * * for breach of his (Head's) written promise to sign the note as maker. Head's liability in this respect is clear.'\n \n \n 106\n The only documents quoted in the court's findings and conclusions were the note, Edmiston's letter of March 10th to Wollmann in effect pledging 25,000 shares of Wymotex Oil Company stock 'to satisfy the $50,000.00 furnished us,' and Head's letter of March 9th to Wollmann.\n \n \n 107\n The finding of the court below that Edmiston's effort to bind Head to the note was beyond the powers granted to him is the only finding which is supported by the evidence. It is equally clear that the suit as filed and as prosecuted in the lower court and in this Court must fail as to Head because it is an action on a writing not binding upon Head. The power of attorney granted by Head's letter of March 9th to Wollmann was in writing and was in clear and explicit and unambiguous terms. The court could not, therefore, legally consider any extraneous proof in construing the note and the letter constituting the sole power relied upon for its execution on behalf of Head.\n \n \n 108\n Eliminating the note, there is nothing in the Memorandum of Agreement executed by Adler Edmiston which binds, or purports to bind, Head to pay Wollmann any money. Wollmann was advised that the note was to be signed by Head and not by Edmiston for him, and his releasing the money to Edmiston before presenting the note to Head for his signature, when the evidence shows that he was easily available, was completely unjustified.\n \n \n 109\n Wollmann knew within a very short time after the execution of the papers by Edmiston that Head was not going to sign a note in the terms of the one sued on. Head's reason was clear. He understood that, simultaneously with the closing of the deal, Edmiston and Butterfield were going to place stock with Wollmann 'to satisfy the $50,000.00 furnished us.' The trial court found the stock to be worth that amount of money-- 'This stock was then jointly owned by Edmiston and Butterfield, and had a value of some $2 a share.' The majority opinion rejects that finding by the court below while accepting the residue of its findings. Faced with a record containing as much vague and equivocal testimony on the part of all of the parties as this one, I do not feel justified in accepting some of the fact findings of the court below and rejecting others. It is my feeling that the court below committed an error or law in holding Head liable under the 'deal' when Head categorically refused to sign the only thing which could obligate him personally to Wollmann. He had, without dispute as far as I can find, been led to believe that Wollmann was to be satisfied by the Wymotex stock. 'Satisfy' is not a word of ambiguous, equivocal or uncertain meaning.2\n \n \n 110\n The undisputed proof of Wollmann's dealings with Head is susceptible of no other construction but that he knew that Head had refused to sign a paper under which he would be personally bound to pay the $50,000. When he declined to sign the note because Wollmann did not have the proper papers, Wollmann took his papers back to his home in a distant state and kept them without ever mentioning the matter of a note from Head or making any demand for payment of a note for a period of more than four years. If, having parted with his $50,000 without getting Head's signature on the note, Wollmann wanted to protect himself, he had ample opportunity to begin action immediately following Head's refusal, which would have prevented the $50,000 from being expended by Edmiston or anyone else. He failed to do so and demonstrated to Head and to everyone else that he was not relying on any supposed obligation of Head to answer to him personally for the money he had advanced. This construction by the two of the rights and obligations subsisting between them appears from evidence which is, in my judgment, uncontradicted.\n \n \n 111\n The other theory of liability, presumably accepted by the majority, is that casually adverted to by the court below that Head was liable to Wollmann for failure to carry out his written agreement to sign a note. The first answer to this is that the contract would be unenforceable, because the kind of note to be executed by Head was not described in the writing. An agreement to make a contract must set forth all of the terms of the contract to be executed or it will be unenforceable.3 Nobody contends, therefore, that the note which Head referred to and which was executed by Edmiston in negotiable form was intended to be what on its face it purported to be. It was to be a note imposing an obligation different from that spelled out by the terms of the note sued on.\n \n \n 112\n It is plain, moreover, that any action against Head for failure to carry out his contract to sign a note was barred by Article 5527 of the Texas Code requiring an action on an indebtedness evidenced by contract in writing to be brought within four years after the cause of action accrues. This action was brought nearly three months after the expiration of the four year period of limitation.\n \n \n 113\n The court below summarized its basic findings in the sentence: 'I find further that the 'Memorandum of Agreement' did no more than reduce to writing the oral understanding previously arrived at between the parties, and to which Head had assented on or before March 9, 1953.' It seems to me that what the court did was to endeavor to construct an obligation from the jumble of writings and testimony about them, and this was not permissible under the suit as filed and prosecuted.\n \n \n 114\n Even if the court had the right to permit the unambiguous writings upon which alone I think the case should be decided to be varied, amended and supplemented by the testimony of contemportaneous negotiations between the parties, I think the contract it enforced by its judgment is too unrealistic and lacking in mutuality to have our approval. Under its terms, Wollmann, having made considerable money risking his capital in other oil 'gambles,' suddenly turned money-lender, making a loan to three joint venturers with him, one of whom he had, according to his amended complaint, investigated and found worth the money, accompanied by security undisputedly adequate to satisfy the loan. In addition, he had an assignment of the first oil runs as further protection. And, finally, he was to receive a bonus of a half interest in the well-- as much as the other three joint venturers together. Leaving out of view that he did not conceive the idea of attempting enforcement of the note against Head until more than four years had elapsed, we are asked to by-pass the writings and create from the sharply disputed testimony a contractual arrangement which, in my opinion, is at war with reason and with the pattern of like joint ventures which have come before the courts. See, e.g., Stricker v. Morgan, 5 Cir., 1959, 268 F.2d 882; Baker v. Nason, 5 Cir., 1956, 236 F.2d 483; Sample v. Romine, 1942, 193 Miss. 706, 8 So.2d 257, 9 So.2d 643, 10 So.2d 346 and McCartney v. McKendrick, 1956, 226 Miss. 562, 85 So.2d 164. I think it is safe, in a situation such as faces us here, to stick to the writings. Both law and 'high justice' will be served better by such a course. For these reasons, I respectifully dissent.\n \n \n \n 1\n See Rule 15(b), Federal Rules of Civil Procedure, 28 U.S.C.A\n \n \n 2\n Mr. Head happened also to be at the same hotel in Mineral Wells on another business matter, and he and Dr. Wollmann met socially, but had no discussion about this particular transaction\n \n \n 3\n Examination by the Court:\n 'Q. You never talked to Wollman about this trade at all until after it had been entered into or signed up on the 10th of March; is that true, sir? A. No, that's true.\n 'Q. Your only information as to what the trade was to be came from Edmiston or Butterfield? A. That's correct.\n 'Q. I see. So you wrote this letter to Wollman, where you set out in substance that you would sign the note and that you thought you all were in agreement. At the time you wrote that letter, you had before you only the information that Edmiston or Butterfield had given you? A. That's correct.\n 'Q. Now, what information did they give you about the part that a promissory note would play in this picture? A. Your Honor, may I say something?\n 'Q. Just answer my question, please, sir. A. O.K. See, on the 9th Mr. Edmiston asked-- came in there and said that the only thing I was to-- they was to put up this Wymotex stock.\n 'Q. And you would not have to put in any money, I know that. What part did they tell you a promissory note was going to play in this picture? A. They didn't tell me anything, what part it was going to play.\n 'Q. Well, what did they say about a promissory note? A. They didn't say anything about a promissory note. Only he just asked me about this thing, that-- the way this-- the reason I asked this, I want to say something here--\n 'Q. Well, now, who first mentioned a promissory note to you? A. Mr. Edmiston.\n 'Q. In connection with this transaction, please, sir? A. Mr. Edmiston.\n 'Q. And when was that, please, sir? A. On the 9th.\n 'Q. And what did he tell you about it? A. He said that until Mr.-- the deal was that Mr. Wollman, Dr. Wollman was going to take the stock, Wymotex stock, and when that promissory note-- in other words, the note wasn't involved in the thing at all, it didn't mean a thing; when that letter, when Dr. Wollman accepted the letter for the stock, that was it.\n 'Q. Now you are telling me what Edmiston told you on or about the 9th of March, before you left Houston and before the trade was signed on the 10th? A. That's correct.\n 'Q. If I understand you, sir. A. That's correct.\n 'Q. And Edmiston told you that all there was to it was to be the stock which he and Butterfield were to put up, and I believe you said when Wollman took that letter, that was it? A. That was it, yes, sir.\n 'Q. What I have asked you was, what did Edmiston say to you about a promissory note on the 9th of March? A. He asked me to-- to sign this note, due to the fact that the rig was going to be moved off, that Keet Lewis and I guess Grey Wolf Drilling were. They was handling that deal, Judge; I didn't know anything about the deal. It wasn't my deal.\n 'Q. What did Mr. Edmiston tell you about a promissory note on the 9th of March, and why you were to sign one or why anybody else was to sign one, please, sir? A. Well, I asked that same question, and why I signed the note, I don't know whether I made myself clear or not--\n 'Q. I didn't ask you why you signed it. What did Edmiston say to you about a promissory note on the 9th of March? A. All right; he said that Dr. Wollman was going to put up stock-- I mean they were going to put up stock to Dr. Wollman, see, and this note was-- the note-- the stock was in lieu of the note.\n 'In other words, when the note-- he accepted the stock, the note had no value whatsoever. Or never did have any value.\n 'Q. Edmiston told you that he, Edmiston, and Butterfield were going to put up stock? A. That's correct.\n 'Q. You weren't to put up any stock? A. No, sir.\n 'Q. Of any kind? A. No, sir.\n 'Q. But you were to sign the note? A. Till they completed their deal. They said they was-- the doctor was coming down here and was going to accept the stock for the $50,000.00.\n 'Q. What was the necessity of your signing the note? A. I don't know, Your Honor.\n 'Q. If you were to have no personal liability and you were not to put up any stock? A. My liability--\n 'Q. You are a business man, I am sure, Mr. Head. A. Yes, sir.\n 'Q. Why would you sign a note for $50,000.00, if you weren't to incur any liability or if you weren't to put up any collateral? A. The only liability that I incurred was to go down there and look after the well.\n 'Q. That is not my question. I said why would you sign the note, if your understanding was that you were never to have any personal liability, and were not to furnish any of the collateral, and if your only contribution to the venture was to be your time and effort? A. That question, I asked that same question, Your Honor.\n 'Q. Well, you can answer it for me now; we have got the other way around. I am asking you, why did you do it? Why would you do it? A. Well, it was stupidity on my part, if you want to put it that way.'\n \n \n 4\n Appellant argues that, at the time of the transaction in Head's office, the value of the Wymotex stock was sufficient to satisfy the debt, and draws that inference from the district court's finding that the stock then 'had a value of some $2 a share.' That finding is not necessary to support the judgment entered by the court. Actually, it seems to us clearly erroneous, for we find in the record no definite evidence of the value of the stock on March 10, 1953, but do find evidence strongly indicating that its then value was nowhere near $2 per share. The evidence of that stock's value may be summarized as follows: During the latter part of 1952 and the first part of 1953, a Mr. Feland in Houston offered $75,000 for 100,000 shares which would be 75 cents per share; in October 1954, it was worth 68 cents per share, and in October 1956, 38 cents per share. Sometime in 1956, Mr. Feland offered $75,000 for 300,000 shares, which would be 25 cents per share\n \n \n 1\n My views on that finding are expressed in footnote 4 to the majority opinion\n \n \n 2\n Edmiston testified, in part, as follows:\n 'Q. Would you have signed this note, for instance, if you hadn't understood that Mr. Butterfield and Mr. Head were going to sign it, too, as a personal obligation? A. No, sir. I didn't sign it personally. I put 'trustee' down there. I was with them all.\n 'Q. In other words, you thought you were signing this note in accordance with this general agreement and contract that you all had drawn up, is that right? A. That's right, yes, sir.\n 'Q. Now, Mr. Edmiston, had Mr. Butterfield or Mr. Head expressly authorized you to sign that note for them? A. No, sir.\n 'Q. Now, you signed the contract referred to as Plaintiff's Exhibit No. 3 pertaining to this deal, did you not? A. Yes, sir.\n 'Q. Did you understand, with Dr. Wollman, that that contract was to be signed by Mr. Butterfield and Mr. Head? A. No, sir.\n 'Q. Now, if the note was to be signed by them-- A. Yes, sir.\n 'Q.-- why wasn't this contract to be signed by them? A. Because I was appointed trustee to close the deal and handle it.\n 'Q. Well, you were appointed trustee by whom? A. Well, they--\n 'Q. Mr. Butterfield and Mr. Head? A. I was to handle the well and close the deal, that's all.\n 'Q. In connection with that matter, were you also authorized to sign the note? A. No, sir.\n 'Q. Now, Dr. Wollman did, in fact, give you a check, a good check for $50,000.00 there on March 10th, in Mr. Head's office, Didn't he? A. Yes, sir.\n 'Q. And you took that and deposited it in the Second National Bank, didn't you? A. Yes, sir.\n 'Q. And it was paid, and you had that money available to put in the venture, didn't you? A. Yes, sir.\n 'Q. Now, you weren't intending to wait until somebody else signed something before Dr. Wollman paid the money over to you and you accepted it, were you? A. Now, wait. Just what was that?\n 'Q. You weren't intending to wait until somebody else signed a note before you got the money from Dr. Wollman, were you? A. Well, the well at that time, we had to go and tend to it right quick, or they were going to close the well down, and I had the drillers waiting on $600.00 a day time.\n 'So I didn't wait-- I figured they all would sign it; they agreed to sign it; and I went on to rush to get the driller, to get him started.\n 'Q. Yes, sir. A. To keep from losing the rig.\n 'Q. Yes, sir. It was urgent to do something that day, unless the whole deal was going to fall through; isn't that right? A. Yes, sir. Yes, sir.\n 'Examination by the Court:\n 'Q. You are telling me now, as I understand it, in answer to Mr. Ryan's questions, that when you-- that the matter was an urgent one, and that as soon as you got the check from Dr. Wollman, you deposited it and used the proceeds; you considered that it was all right for you to go ahead, because you were going to lose your lease or the rig was going to be moved off or something, if you didn't act promptly? A. Yes, sir, I had to act promptly, Judge, or lose it.\n 'Q. Well, do I understand, then, that you considered the trade final and definite when you got Dr. Wollman's check, and used his money? A. Yes, sir. I didn't figure-- I figured that-- now, Judge, they taken the note and was going ahead and have Gordon Butterfield execute it, and I left it up to their honor to do that.\n 'Q. You left it up to whose honor to do what? A. The ones that was supposed to sign that note with me.\n 'Q. You mean you expected Mr. Butterfield and Mr. Head both to sign the note? A. Yes, sir. Yes, sir.\n 'Q. Because they had told you they would? A. Yes, sir, that's right.\n 'Q. All right. So, so far as you are concerned, I take it from your testimony-- A. Yes, sir.\n 'Q. There was no uncertainty about the trade? A. No, sir.\n 'Q. You considered it final? A. Yes, sir.\n 'Q. And definite? A. Yes, sir.\n 'Q. And you felt that you were justified in taking the money from Wollman and using it? A. And start the well immediately, because I had to get with Wolf, Grey Wolf Drilling Company.\n 'Q. I see. A. And they were calling every hour, and they were going to pull the rig off if they didn't--\n 'Q. The point I am making is, as I understand what you are telling me, now-- A. Yes, sir.\n 'Q.-- there were no uncertainties? A. No, sir.\n 'Q. There were no contingencies? A. No, sir.\n 'Q. There were no loose ends that had to be tied down before it was a final trade, in your mind? A. No, sir.'\n \n \n 3\n The district court found that Edmiston had the authority to execute that agreement on behalf of Head and of Butterfield, and that finding is supported by well nigh conclusive evidence. See Footnote 2, supra\n \n \n 4\n Art. 5932, Sec. 18, Vernon's Annotated Civil Statutes of Texas:\n 'Sec. 18. No person is liable on the instrument whose signature does not appear thereon, except as herein otherwise expressly provided. One who signs in a trade or assumed name will be liable to the same extent as if he had signed in his own name.'\n \n \n 5\n Art. 5932, Vernon's Annotated Civil Statutes of Texas:\n 'Sec. 19. The signature of any party may be made by a duly authorized agent. No particular form of appointment is necessary for this purpose; and the authority of the agent may be established as in other cases of agency.\n 'Sec. 20. Where the instrument contains or a person adds to his signature words indicating that he signs for or on behalf of a principal, or in a representative capacity, he is not liable on the instrument if he was duly authorized; but the mere addition of words describing him as an agent, or as filling a representative character, without disclosing his principal, does not exempt him from personal liability.'\n \n \n 6\n As said in Second Nat. Bank v. Ford, 1939, 132 Tex. 448, 123 S.W.2d 867, 869:\n '* * * By the provisions of the Negotiable Instruments Law, art. 5932, 20, Cooley's addition of the word 'trustee' after his signature without disclosing for whom he was acting did not exempt him from personal liability. Certainly the facts establish no exemption, but, on the contrary, they establish liability.'\n \n \n 7\n See Huntington Finance Co. v. Young, 1928, 105 W.Va. 405, 143 S.E. 102, 104; 7 Am.Jur., Bills & Notes, 62, pp. 820, 821; 8 Id., 474, pp. 222, 223, footnotes 2 to 7; 10 C.J.S. Bills and Notes 44b, p. 482\n \n \n 8\n See also, Camp v. Dallas Nat. Bank, Tex.Civ.App.1929, 21 S.W.2d 104, 109; Stubblefield v. Cooper, Tex.Civ.App.1930, 37 S.W.2d 818, 821; McFarland v. Shaw, Tex.Com.App.1932, 45 S.W.2d 193, 196; Schwab v. Schlumberger Well Surveying Corp., Tex.Civ.App.1946, 195 S.W.2d 412, 415; Continental Nat. Bank of Fort Worth v. Conner, 1948, 147 Tex. 218, 214 S.W.2d 928, 930; Allied Building Credits, Inc. v. Ellis, Tex.Civ.App.1953, 258 S.W.2d 165, 166\n \n \n 9\n 2 Tex.Jr., Agency, 80, p. 477; 1 A.L.I., Restatement of Agency, 99; 2 Am.Jur., Agency, 227, 228; 2 C.J.S. Agency 49\n \n \n 1\n Wollmann's original complaint copied the note in the body of it and alleged 'In so executing and delivering said note, defendant Edmiston was acting on his own behalf, and as agent for Head and Butterfield, and was expressly authorized in writing by Head and Butterfield to execute and deliver said note as an obligation binding upon both of them. By reason of the premises, the defendants Head and Edmiston, together with Butterfield, jointly and severally obligated themselves to pay the said note according to its tenor and effect.'\n In his amended complaint filed over Head's protest and after all of the evidence was in, Wollmann again copied the note, referred to the contract of March 10th executed by Edmiston and charged again: 'In so executing and delivering said note, and in executing the said contract, defendant Edmiston was acting on his own behalf, and as agent for Head and Butterfield, who were, both on and prior to March 10, 1953, associated with him as partners in the development of the lease * * * referred to. In addition, Edmiston was expressly authorized in writing by both Head and Butterfield to execute and deliver the above described contract and note as obligations binding upon both of them. * * *'\n Thereupon he copied in the body of the amended complaint Head's letter to him on March 9th wherein Head stated that Edmiston was authorized to close the deal, but that he would sign the note.\n The only prayer of the original complaint was repeated in the amended complaint: 'Wherefore, premises considered, plaintiff prays * * * that upon final trial he have judgment against them, jointly and severally, for the sum of $50,000.00, together with interest thereon at the rate of two per cent per annum from March 10, 1953 until the date of judgment, plus ten per cent of the amount due as attorney's fees * * *,' thus demonstrating anew that he was suing upon the note.\n His brief before us is devoted in considerable part to an effort to support his cross appeal for interest and attorney's fees as provided in the note.\n \n \n 2\n Webster's New World Dictionary, 1953, p. 1295, defines the transitive verb 'satisfy' as meaning: '5. (a) To give what is due to, (b) to discharge (an obligation, debt, etc.); settle in full.' 78 C.J.S. at page 582, gives a similar definition\n \n \n 3\n In appellee's brief it is stated: 'The promissory note, though negotiable on its face, was payable on a contingency, being the failure of the oil well to produce a sufficient return to reimburse * * * (Wollmann).'\n \n \n ",
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"opinion_text": "\nRIVES, Chief Judge.\nThis action was brought by the appel-lee, Wollmann, against the appellant, Head, and also against one Adler Edmis-ton upon a promissory note in the prin*299cipal amount of $50,000 signed “Adler Edmiston, Trustee.” The complaint alleged that in executing and delivering the note, Edmiston acted on his own behalf and as agent for Head and also for one Gordon B. Butterfield, who was not sued. The ease was tried to the court without a jury. At the conclusion of the evidence, the plaintiff, with leave of the court, filed an amended complaint to conform to the evidence.1 The amended complaint counted on the promissory note and also on certain written instruments or agreements executed contemporaneously with the note.\nThe district court filed a memorandum opinion incorporating its findings of fact and conclusions of law, and entered judgment against Edmiston,\n“ * * * in the sum of Fifty Thousand Dollars ($50,000.00) together with interest thereon at the rate of two per cent (2%) per an-num from March 10, 1953 until the date of this judgment, plus ten per cent (10%) of the total amount due as attorneys’ fees, together with interest upon the entire sum from the date of this judgment at the rate of six per cent (6%) per annum,”\nand against Head, “in the sum of Fifty Thousand Dollars ($50,000.00), together with interest thereon at the rate of six per cent (G%) per annum from the date of this judgment.” It was further provided that the total recovery against both defendants should not exceed the amount of the judgment rendered against Edmiston.\nHead alone appealed. Wollmann cross-appealed, but only insofar as the judgment against Head failed to award Woll-mann “interest on the sum of Fifty Thousand Dollars ($50,000.00) at the rate of two per cent (2%) per annum from March 10, 1953 until the date of the judgment, plus ten per cent (10%) of the total amount due as attorneys’ fees.”\nWollmann was a dentist by profession, who lived in Huron, South Dakota. He had known Butterfield, a Montana resident, for many years and had engaged with Butterfield in previous ventures seeking the discovery and production of oil and gas. Edmiston and Head were citizens of Houston, Texas, who also prospected for and promoted the production of oil and gas.\nButterfield and Edmiston owned a one-eighth overriding royalty interest in a large acreage in San Patricio County, Texas, leased to D and E Drilling Company. That Company had completed a producing well on a part of that acreage and had drilled a second well on another part to almost the same depth when it had decided to plug the second well. It had set cement in the surface pipe and had the well half plugged and the rig torn halfway down when Edmiston induced a Mr. James L. Minahan, a consulting geological engineer of Fort Worth, Texas, to go with him to check “the Schlumberger electrical log services core analysis” with respect to this second well.\nOn March 6 or 7th, 1953, Minahan gave his opinion that there was a fifty-fifty chance of completing the well as a producing well. D and E was unwilling to spend further money on the well, and the lease on that part of the acreage would terminate shortly unless further efforts were made to bring the well into production. D and E offered to assign the lease to Edmiston, reserving a fractional three-fourths working interest in itself, if Edmiston would secure the funds necessary and proceed with cleaning and testing operations with a view to securing production. Wolf Drilling Company, which had drilled the well, estimated that $50,000 would be enough to attempt to complete the well as a producer. To keep from losing the rig, Edmiston arranged for the drillers to wait at an expense of $600 a day. Ed-miston and Butterfield offered interests in the venture to Minahan and to Head. The four (Edmiston, Butterfield, Mina-han, and Head) had several discussions among themselves about raising the necessary $50,000, and Butterfield suggested that he would contact Dr. Woll-*300mann and attempt to secure the funds from him.\nDr. Wollmann and his wife were then at a health resort in Mineral Wells, Texas, and Butterfield met Wollmann there at the Baker Hotel.2 After they had discussed the venture, Butterfield wrote by pen and ink on hotel stationery a letter proposal (hereafter referred to as Plaintiff’s Exhibit No. 1) as follows:\n“Dear Doctor Wollmann:\n“Following is understanding of our agreement concerning the participation in completion of the well at Corpus Christi: It is estimated there will be a total cost of $50,-000.00 to complete this well and put the oil and gas in the tanks for oil and lines for delivery of the gas.\n“You agree to advance this $50,-000.00. We, in turn, agree to do all necessary work in connection with completion of the well, as set-out, and to furnish all necessary casing, tubing, cementing, lines, tanks, etc. We further agree to give you a note of even date in amount of $50,000.00, bearing interest at two per cent, due in Nine months, said note to be signed by each, G. B. Butterfield, Adler Edmis-ton, Homer S. Head, Sr. and James Minahan, Sr.\n“We further agree that a full 75% of all oil and gas returns will credit toward payment of this note.\n“It is further agreed between us that when this note is paid in full, an assignment will be made to you of Thirty-seven and one-half per cent (37-1/2%) in the working interest in this lease. It is understood that there is a one-eighth (1/8) land owners royalty and a one-eighth overriding royalty outstanding against this lease, making it a Seventy-five per cent (75%) lease.\n“Sincerely,\n“Gordon B. Butterfield”\nThe next day, Dr. Wollmann, accompanied by his wife, drove to Fort Worth to talk with Mr. Minahan. Minahan testified that he made it clear to Dr. Woll-mann there in Fort Worth that he was no longer personally interested in the transaction “because I wouldn’t put my money in it.”\nThe following day, March 9, Dr. Woll-mann, still accompanied by his wife, drove to Houston. Mr. Edmiston met them at the hotel clerk’s desk as they registered and made arrangements for Dr. Wollmann to discuss the matter on the following day at Mr. Head’s office in the Gulf Building in Houston.\nAt that meeting on March 10, Mr. Edmiston first handed to Dr. Wollmann a note from Mr. Head (hereafter referred to as Plaintiff’s Exhibit No. 2) as follows:\n“Homer S. Head — Oil Operator “Gulf Building\n“Houston 2, Texas, March 9, 1953\n“Dear Dr. Wollman (sic),\n“It is my understanding that Gordon Butterfield, A. Edmiston, you and I are all agreeable on a deal in San Patricio County, Texas, and that you have a note for $50,000.00 to be signed by Butterfield, Edmis-ton and myself.\n“I have to leave town and set on a well in Eastland County, Texas. This letter will give you authority to close any deal with Mr. Edmiston and I will sign the note with Messrs. Edmiston and Butterfield at any time.\n“Yours very truly,\n“Homer S. Head\n“Homer S. Head\n“/es\n“P.S. I think this is a-1 deal sorry it was necessary for me to leave town — I hope to see you soon.\n“Homer.”\nDr. Wollmann testified that he showed Mr. Edmiston the letter proposal which *301he had received from Edmiston (Plaintiff’s Exhibit No. 1), and that he used that as a guide in arriving at an agreement. Edmiston testified that he never did see that letter proposal. In any event, Dr. Wollmann and Mr. Edmiston, witliout the benefit of legal advice, undertook to reach an agreement, which Mr. Head’s secretary typed, as follows (Plaintiff’s Exhibit No. 3):\n“State of Texas\n“County of Harris\n“This memorandum of agreement entered into this tenth day of March, 1953, by and between Adler Edmiston, Trustee for Gordon B. Butterfield, Homer S. Head, and Adler Edmiston, Harris County, Texas, known as the First Party and Dr. A. A. Wollmann, Jr., of Huron, South Dakota, known as the Second Party Witnesseth:\n“First Party has this day taken over a well drilled for oil or gas in San Patricio County, Texas, on a block of land consisting of approximately 409 acres described as follows :\n*****\n“Said well was drilled by the Drilling and Exploration Company of Houston, Texas to a depth of 9636/ and Schlumberger well log run on said well shows several sands that should be tested for production. First Party has made a deal with Drilling & Exploration Company to take over said well and start immediately to wash down and drill out plug and set casing to a depth of 9500', cement same and make production tests; trying to make a producer out of same.\n“The Drilling & Exploration Company has assigned A. Edmiston, as Trustee for the above mentioned parties and himself, a lease covering the above described 409.25 acres subject to the following conditions to-wit:\n“A. Edmiston is to pay all bills, casing, tanks, Schlumbergers and drilling operations to complete said well with the understanding that the above lease now owned by Drilling & Exploration Company is only a 3/4 lease and said lease is now being assigned to A. Edmiston, Trustee, as follows:\n“A. Edmiston, Trustee, is supposed to receive all oil royalties and payments from said well until the cost of completing said well has been reimbursed to A. Edmiston, Trustee. In that event, the Drilling & Exploration Company shall own a 1/4 Working Interest of the 3/4 Lease now assigned to A. Edmis-ton, Trustee.\n“First Party agrees that all oil, pipe line runs, and checks received from production of said well will be paid to First Party (as Trustee), until First Party has received $50,-000.00. The First Party has this date executed a promissory note payable in nine months from date at the rate of 2% interest to Second Party to reimburse him for the money advanced for the completion of the above described well. All monies received from production by First Party shall be paid to Second Party as received to apply on said note until $50,000.00 has been paid and when said well has produced enough money to reimburse Second Party $50,000.00, the balance of the 3/4 of 3/4 interest shall be divided equally as follows:\n“1/2 to Dr. A. A. Wollmann and 1/2 equally to Homer S. Head, Gordon B. Butterfield and A. Edmiston.\n“A. Edmiston, Trustee, hereby agrees to execute all papers properly as above specified. Second Party has nothing to do with the drilling of the above described well and is not liable for any damages which may occur from said well. A. Ed-miston, Trustee, shall have the control of all operations of said well.\n*302“Witness the Execution Hereof this the 10th day of March, 1953.\n“Adler Edmiston\n“Adler Edmiston\n“(Seal)\n“The State of Texas\n“County of Harris\n“Before Me, the undersigned authority, on this day personally appeared Adler Edmiston, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed.\n“Given under my hand and seal of office this the 10th day of March, 1953.\n“Eleanor C. Sanders\n“Eleanor C. Sanders\n“Notary Public, Plarris County, Texas\n“My Commission expires 6-1-53”\nAt the same time, a promissory note and a letter (Plaintiff’s Exhibits Nos. 4 and 5) were prepared and delivered to Dr. Wollmann, as follows:\n“50,000.00 March 10, 1953 194... Nine months after date, for value received I promise to pay to the order of Dr. A. A. Wollmann Jr. Fifty thousand and no/100........ Dollars at Huron, South Dakota\n“With interest after date at the rate of 2 per cent per annum and if not paid at maturity and collected by an attorney or by legal proceedings, an additional sum of ten per cent on the amount of this note as attorney’s fees.\n“Due Nov. 10, 1953\n“/s/ Adler Edmiston\n“Adler Edmiston, Trustee”\n“Dr. A. A. Wollmann, Jr.,\n“Huron, South Dakota.\n“Dear Dr. Wollman (sic):\n“This letter will' give Mr. Gordon B. Butterfield of Billings, Montana, the authority to issue 25,000 shares of Wymotex Oil Company of Billings, Montana, stock which is owned by Mr. Butterfield and me and which is to be placed in escrow in a bank to be named by you to satisfy the $50,000.00 furnished us in San Patricio County, Texas.\n“Yours very truly,\n“Adler Edmiston\n“Adler Edmiston\n“/es\n“cc: Gordon Butterfield”\nDr. Wollmann then delivered to Mr. Edmiston his check for $50,000.\nDr. Wollmann further testified:\n“Q. Now, Dr. Wollman (sic), what happened in connection with this transaction after you paid over the $50,000.00, and received these documents from Mr. Edmiston? A. The next day or so, we drove to Corpus Christi, down to where the well was being drilled.\n“Q. And what occurred there, if anything? A. We met Mr. Edmis-ton, and we were there several days, and to (sic) the meantime, Mr. Head came down. We were going back and forth to the well.\n“Q. All right. A. While they were drilling.\n“Q. Did you have any conversation with Mr. Head about the financial aspects of this matter? A. I did.\n“Q. Can you tell us in your own words just what happened at that time? A. I asked him to sign the note, and he told me that I didn’t have the proper papers.\n“Q. Was that the only reply he gave to you at that time? A. That’s right.\n“Q. Did he ever say that he wouldn’t sign the note? A. No.\n“Q. Did you press him about his signing something at that time ? A. No, I didn’t have the proper papers, so I didn’t.”\nMr. Head testified that he simply declined to sign the note, and that Dr. Wollmann had nothing more to say at *303the time. In connection with this conflict, the examination of Mr. Head by the district judge, quoted in the margin,3 may be revealing.\n*304The well eventually proved to be a dry hole and was finally plugged about January 23, 1955, and the equipment above the ground was then sold.\nThe respective factual contentions of the parties and the findings of the district court are thus stated in the memorandum opinion [176 F.Supp. 566]:\n“It is the plaintiff’s testimony, and theory, that under the agreement he was to be repaid, if the venture was unsuccessful, by the two defendants and Butterfield, and that the note evidences that obligation. He contends further that the Wymotex stock was security, to which he might look for satisfaction of the note, if Edmiston, Head and Butter-field otherwise were unable to pay it.\n“In addition to such support as this theory may find in the written instruments, Butterfield corroborates the plaintiff’s testimony in every particular. He readily, almost eagerly, admits his own liability, and that of the two defendants. In this respect it is noted that But-terfield was not made a party-defendant here; that he and the plaintiff were friends and successful co-adventurers in other matters long before this controversy arose; and, that Butterfield is a recent bankrupt.\n“Head and Edmiston testify that the agreement was not as stated above, or as the written instruments would tend to show. It is their testimony that Wollman (sic) was to risk his capital, and they their time and skill in undertaking to make the well produce; and that in the event of failure all were to lose, and that there was to be no repayment. Their testimony is to the effect that the note was never intended to constitute a personal obligation on their part, but was no more than a memorandum of the amount which Wollmann advanced, and to which he was entitled to recoupment from the first oil produced. They explain the Wymotex letter as an alternative defense, in that if Wollman (sic) was to be repaid in case of failure, he was to look only to the 25,000 shares above mentioned. This stock was then jointly owned by Edmiston and Butterfield, and had a value of some $2 a share. Since that time, its value has decreased to an extent that it now has little, if any, market value. During the trial, Edmiston indicated his willingness to surrender his share of such stock to Woll-man (sic), which he contends would satisfy the obligation.\n“I find the facts to be in accordance with the plaintiff’s theory and testimony. I find that it was the understanding of all parties that Wollman (sic) was to be repaid in the event the well was a failure, and that the note was intended to, and did, evidence this obligation. I find further that the block of Wymotex stock was intended simply to secure the payment of the obligation, but was not intended to be the sole source to which plaintiff might look for such satisfaction.”\nThe district court entered judgment against Edmiston for the amount with interest and attorneys’ fees due under the promissory note. As to Head, however, the court held:\n“The plaintiff may not recover against Head as a maker of the note, *305by reason of the terms of Article 5932, § 18, Vernon’s Annotated Civil Statutes of this State. I find, however, that Head intended to, and by his letter of March 9, 1953 (Ex. 2) did, in writing, authorize Edmis-ton, as his agent, to deal with Woll-man (sic) and to bind him (Head) upon any contract so arrived at. I find that Edmiston was authorized to, and did, act as agent for Head, as well as on his own behalf, in executing the ‘Memorandum of Agreement’ (Ex. 3), and that Head is bound thereby. I find further that the ‘Memorandum of Agreement’ did no more than reduce to writing the oral understanding previously arrived at between the parties, and to which Head had assented on or before March 9, 1953.\n“I find that Edmiston, Head and Butterfield were not acting as partners in this venture (as contended by plaintiff), and I find that Head did not intend to authorize Edmiston to execute the promissory note (as distinguished from the written contract) as Head’s agent. It was contemplated by all concerned that Head and Butterfield would sign individually, and on their own behalf, and that the three would constitute joint makers. While the statute cited above would prevent recovery against Head as maker of the note, it does not prevent recovery for breach of the initial contractual obligation, or for breach of his written promise to sign the note as maker. Head’s liability in this respect is clear.1\n“ * * * Had Head and Butter-field joined in execution of the note, the three would have been liable jointly and severally, and the plaintiff might have sought his recovery in full against any or all.2 Hence, Edmiston, who did sign, has not suffered. Clearly the escrow provision was intended purely as a means of affording the plaintiff additional security. * * *\n“1. 6 Tex.Jurs., Bills & Notes, § 36 and § 116; 10 C.J.S. Bills and Notes § 516; Kelley v. Audra Lodge, Tex.Civ.App.1915, 176 S.W. 784; Wood v. Key, Tex.Civ.App.1923, 256 S.W. 314.\n“2. Beitel v. Beitel, Tex.Civ.App.1937, 109 S.W.2d 345; Watkin Music Co. v. Basham, 1908, 48 Tex.Civ.App. 505, 106 S.W. 734; Kuykendall v. Coulter, 1894, 7 Tex.Civ.App. 399, 26 S.W. 748.”\nAccordingly, the court rendered judgment against Head only for the principal sum of $50,000 with interest from the date of the judgment.\nIt will be noted from the last sentence of the quoted holdings that the district court had no doubt that the Wymotex stock was simply put up as collateral to secure the payment of the obligation.\n“The holder of a secured note is not required by Texas law to exhaust his security before enforcing the note against the original maker, but may proceed to judgment without reference to the security, whether the same is in the form of a pledge of collaterals or a mortgage on real or personal property.” 6 Tex.Jur., § 222, p. 881.\nThe appellant emphasizes the meaning of the word “satisfy” in the letter (Plaintiff’s Exhibit No. 5) by which the 25,000 shares of stock were “to be placed in a bank to be named by you to satisfy the $50,000.00 furnished us * * (Emphasis supplied.) 4 The word “satisfy\" *306would be entitled to more weight if it had been used by a lawyer skilled in the use of language of precise legal significance. It is questionable whether the word was originally chosen even by the two nonlawyers, Wollmann and Edmis-ton. Mr. Head’s secretary testified that they did not dictate the letter to her, “Mr. Edmiston just gave me a general outline of what he wanted, and I typed the letter.” It is a fair inference that the word “satisfy” was initially the choice of the stenographer.\nWhile the secretary and Edmiston testified to the most definite understanding that the stock was to be accepted by Dr. Wollmann in lieu of the money, Dr. Wollmann testified that he and Edmiston talked about the stock being put up simply as collateral. Dr. Wollmann further testified that he attached little importance to the stock, and had not comprehended the provision that it was to be placed in escrow. Actually, that never was done. After the well proved to be a dry hole, Edmiston went to South Dakota and offered Dr. Wollmann not 25,000 shares as specified in the letter, but 50,000 shares of the stock. Dr. Wollmann refused, and testified: “I asked for my $50,000.00 instead.” We agree with the finding that the stock was intended simply as collateral security. If we disagreed, nevertheless recognizing the superior advantage enjoyed by the district court, which saw and heard the witnesses and observed their demeanor on the stand, we could not set aside the finding as clearly erroneous. Rule 52(a), Federal Rules of Civil Procedure.\nJudges JONES and RIVES are in agreement down to this point. Judge JONES would simply affirm the judgment of the district court for reasons stated in a separate concurring opinion. Judge RIVES would go further and, for reasons stated in a separate opinion, would increase the judgment against Head so as to include interest and attorneys’ fees. However, in order to reach a decision, Judge RIVES concurs with Judge JONES that the judgment be\nAffirmed.\n\n. See Rule 15(b), Federal Rules of Civil Procedure, 28 U.S.C.A.\n\n\n. Mr. Head happened also to be at the same hotel in Mineral Wells on another business matter, and he and Dr. Woll-mann met socially, but had no discussion about this particular transaction.\n\n\n. Examination by the Oourt:\n“Q. You never talked to Wollman (sic) about this trade at all until after it had been entered into or signed up on the 10th of March; is that true, sir? A. No, that’s true.\n“Q. Your only information as to what the trade was to be came from Ed-miston or Butterfield? A. That’s correct.\n“Q. I see. So you wrote this letter to Wollman (sic), where you set out in substance that you would sign the note and that you thought you all were in agreement. At the time you wrote that letter, you had before you only the information that Edmiston or Butterfield had given you? A. That’s correct.\n“Q. Now, what information did they give you about the part that a promissory note would play in this picture? A. Your Honor, may 1 say something?\n“Q. Just answer my question, please, sir. A. O.K. See, on the 9th Mr. Edmiston asked — came in there and said that the only thing I was to — they was to put up this Wymotex stock.\n“Q. And you would not have to put in any money, I know that. What part did they tell you a promissory note was going to play in this picture? A. They didn’t tell me anything, what part it was going to play.\n“Q. Well, what did they say about a promissory note? A. They didn’t say anything about a promissory note. Only he just asked me about this thing, that— the way this — the reason I asked this, I want to say something here—\n“Q. Well, now, who first mentioned a promissory note to you? A. Mr. Ed-miston.\n“Q. In connection with this transaction, please, sir? A. Mr. Edmiston.\n“Q. And when was that, please, sir? A. On the 9th.\n“Q. And what did he tell you about it? A. He said that until Mr. — the deal was that Mr. Wollman (sic), Dr. Wollman (sic) was going to take the stock, Wymotex stock, and when that promissory note — in other words, the note wasn’t involved in the thing at all, it didn’t mean a thing; when that letter, when Dr. Wollman (sic) accepted the letter for the stock, that was it.\n“Q. Now you are telling me what Ed-miston told you on or about the 9th of March, before you left Houston and before the trade was signed on the 10th? A. That’s correct.\n“Q. If I understand you, sir. A. That’s correct.\n“Q. And Edmiston told you that all there was to it was to be the stock which he and Butterfield were to put up, and I believe you said when Wollman (sic) took that letter, that was it? A. That was it, yes, sir.\n“Q. What I have asked you was, what did Edmiston say to you about a promissory note on the 9th of March? A. He asked me to — to sign this note, due to the fact that the rig was going to be moved off, that Keet Lewis and I guess Grey Wolf Drilling were. They was handling that deal, Judge; I didn’t know anything about the deal. It wasn’t my deal.\n“Q. What did Mr. Edmiston tell you about a promissory note on the 9th of March, and why you were to sign one or why anybody else was to sign one, please, sir? A. Well, I asked that same question, and why I signed the note, I don’t know whether I made myself clear or not — •\n“Q. I didn’t ask you why you signed it. What did Edmiston say to you about a promissory note on the 9th of March? A. All right; ho said that Dr. Wollman (sic) was going to put up stock — X mean they were going to put up stock to Dr. Wollman (sic), see, and this note was— the note — the stock was in lieu of the note.\n“In other words, when the note — he accepted the stock, the note had no value whatsoever. Or never did have any value.\n“Q. Edmiston told you that he, Edmis-ton, and Butterfield were going to put up stock? A. That’s correct.\n“Q. You weren’t to put up any stock? A. No, sir.\n“Q. Of any kind? A. No, sir.\n“Q. But you were to sign the note? A. Till they completed their deal. They said they was — the doctor was coming down here and was going to accept the stock for the $«50,000.00.\n“Q. What was the necessity of yonr signing the note? A. I don’t know, Your Honor.\n“Q. If you were to have no personal liability and you were not to put up any stock? A. My liability — ■\n“Q. You are a business man, I am sure, Mr. Head. A. Yes, sir.\n“Q. Why would you sign a note for $50,000.00, if you weren’t to incur any liability or if you weren’t to put up any collateral? A. The only liability that I *304ineurred was to go down there and look after the well.\n“Q. That is not my question. I said why would you sign the note, if your understanding was that you were never to have any personal liability, and were not to furnish any of the collateral, and if your only contribution to the venture was to be your time and effort? A. That question, I asked that same question, Your Honor.\n“Q. Well, you can answer it for me now; we have got the other way around. I am asking you, why did you do it? Why would you do it? A. Well, it was-stupidity on my part, if you want to put it that way.”\n\n\n. Appellant argues that, at the time of the transaction in Head’s office, the value of the Wymotex stock was sufficient to satisfy the debt, and draws that inference from the district court’s finding that the stock then “had a value of some $2 a share.” That finding is not necessary to support the judgment entered by the court. Actually, it seems to us clearly erroneous, for we find in the record no definite evidence of the value of the stock on March 10, 1953, but do find evidence strongly indicating that its then value was nowhere near $2 per share. *306The evidence of that stock’s , value may be summarized as follows: During the latter part of 1952 and the first part of 1953, a Mr. Feland in Houston offered $75,000 for 100,000 shares which would, be 75 cents per share; in October 1954, it was worth 68 cents per share, and in October 1956, 38 cents per share. Sometime in 1956, Mr. Feland offered $75,000 for 300,000 shares, which would be 25 cents per share.\n\n",
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"opinion_text": "\nJONES, Circuit Judge\n(concurring).\nIt is my view that the appellant authorized Edmiston to bind him on what he refers to as a “deal” and that he became bound. The district court made its determination as to what the deal was and, among other things, found that the deal included a promise to pay Woll-mann if he did not get payment from a producing oil well. This determination is, I think, supported by substantial evidence. It was contemplated by Head that a note would be given to Wollmann. Head’s letter to Wollmann says “You have a note for $50,000.00 to be signed by Butterfield, Edmiston and myself.” Again it is said in the letter, “I will sign the note with Messrs. Edmiston and Butterfield at any time.” While Edmis-ton was authorized to bind Head in making the deal, Head reserved to himself the signing of the note. It follows, or so I think, that Head was not obligated on the note and it would be improper to require him to pay the attorneys’ fee for which the note stipulated. Although not in agreement with all that is said by the district court, I am convinced that its decision is correct. Wollman v. Head, 176 F.Supp. 563, I concur in the affirmance of its judgment.\n",
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"opinion_text": "\nRIVES, Chief Judge\n(concurring in affirmance, but dissenting from the failure to modify and increase the judgment) .\nWhile I concur to the extent of at least affirming the judgment against *307Head, I could hardly do so if I were not of the opinion that Head is liable on the promissory note the same as Edmiston. Butterfield’s letter proposal (Plaintiff’s Exhibit No. 1) and Head’s letter (Plaintiff’s Exhibit No. 2) each stated that Head’s obligation to repay the $50,000 to Wollmann would be evidenced by a note. The only language that I find in the agreement (Plaintiff’s Exhibit No. 3) obligating Head to pay the sum of $50,000 to Wollmann is that referring to the note:\n“The First Party has this date executed a promissory note payable in nine months from date at the rate of 2% interest to Second Party to reimburse him for the money advanced for the completion of the above described well.”\nI accept all of the fact findings of the district court except the finding not necessary to support its judgment to the effect that the Wymotex stock had a value of some $2 a share at the time the transaction was closed.1 Among other such findings which I accept are the following:\n“* * * I find that Head did not intend to authorize Edmiston to execute the promissory note (as distinguished from the written contract) as Head’s agent. It was contemplated by all concerned that Head and Butterfield would sign individually, and on their own behalf, and that the three would constitute joint makers.”\nWhen, however, Head found it necessary to leave town and be absent from the meeting in his office, Edmiston was spurred on by a sense of urgent necessity to definitely close the transaction, and to do so he undertook to sign both the note and the agreement on behalf of Head (and of Butterfield as well as of himself).2\n*308While Edmiston expected Butterfield and Head thereafter to sign the note, he added the word “Trustee” after his own signature to signify that he was acting not only for himself, but also for Head and for Butterfield. That is made clear by the agreement entered into at the same meeting (Plaintiff’s Exhibit 3), “by and between Adler Edmiston, Trustee for Gordon B. Butterfield, Homer S. Head, and Adler Edmiston, Harris County, Texas, known as the First Party and Dr. A. A. Wollmann, Jr., of Huron, South Dakota, known as the Second Party.” The agreement recites that, “The First Party has this date executed a promissory note. * * * ” Throughout that agreement, Edmiston is referred to as “Trustee” with the meaning that he is acting for himself and his two co-venturers.3 The testimony is without dispute that, notwithstanding Edmiston’s lack of authority to execute the promissory note (as distinguished from the written contract) as Head’s agent, Ed-miston actually did purport to act on account of Head (as well as of Butter-field and himself) in signing the note, and, hence, his execution of the note could be ratified by Head for “ * * * ratification does not result from the af-firmance of an act, unless the one acting purports to act on account of another.” 1 A.L.I., Restatement of Agency, § 85, p. 204.\nTexas has the Uniform Negotiable Instruments Law, which includes Article 5932, Section 18, Vernon’s Annotated Civil Statutes of Texas, the statute to which the district court referred.4 That *309section is followed by two other sections which appear pertinent.5 Clearly, the addition of the word “Trustee” to Edmiston’s signature did not exempt him from personal liability on the note.6 **As between the original parties, however, it was permissible to prove, and was in fact shown by the contemporaneous agreement (Plaintiff’s Exhibit 3), that the word “Trustee” was meant to indicate that Edmiston was acting not only for himself, but also for Head and for Butterfield. As between the original parties, the rule is well settled in Texas, as elsewhere,1,7 that:\n“In considering bills and notes as evidencing an agreement between the parties, application is made of the fundamental rule that other instruments executed at the same time, for the same purpose and in the course of the same transaction are to be construed therewith, — that is, all the papers are given the same effect as though they were in fact a single instrument.” 6 Tex.Jur., Bills and Notes, § 47, p. 644.8\nHead’s actual signature to the note was the means by which Edmiston had expected that his assumption of authority would be ratified. That was not, however, the exclusive mode of ratification. When Head, with full knowledge of the fact, either by having the note presented to him for his signature, or by the terms of the agreement referring to the note, joined in accepting the benefits (or what were then hoped would be benefits) of the $50,000 check which Dr. Wollmann delivered to Edmiston in return for the note and the other obligations, and joined in expending that fund over a long period of time, he effectually ratified and approved Edmiston’s execution of the note on his behalf.9 It cannot be said that that conduct amounted to no more than an unnecessary ratification of the agreement already authorized, for two reasons: (1) The agreement itself, as executed, showed that the “First Party,” which included Head, had executed the promissory note. (2) In parting with his $50,000, Wollmann relied on the promissory note as well as on the agreement, and he had a right to rely on both. That conduct would result in ratification even if it should be assumed, contrary to the weight of the evidence (see footnote 3 to majority opinion), that Head had theretofore repudiated any liability *310on the note by flatly refusing to sign it.\n“The affirmance by the principal of a transaction with a third person is not prevented from resulting in ratification by the fact:\n*****\n“(b) that the purported principal, before affirming, had repudiated the transaction, if the third person has not acted or has failed to act in reliance upon the repudiation.” 1 A.L.I., Restatement of Agency, § 92, p. 227.\nI would hold Head liable on the promissory note the same as Edmiston.\n\n. My views on that finding are expressed in footnote 4 to the majority opinion.\n\n\n. Edmiston testified, in part, as follows:\n“Q. Would you have signed this note, for instance, if you hadn’t understood that Mr. Butterfield and Mr. Hoad were going to sign it, too, as a personal obligation! A. No, sir. I didn’t sign it personally. I put ‘trustee’ down there. I was with them all.\n“Q. In other words, you thought you were signing this note in accordance with this general agreement and contract that you all had drawn up, is that right? A. That’s right, yes, sir.\n*****\n“Q. Now, Mr. Edmiston, had Mr. But-terfield or Mr. Head expressly authorized you to sign that note for them? A. No, sir.\n“Q. Now, you signed the contract referred to as Plaintiff’s Exhibit No. 3 pertaining to this deal, did you not? A. Yes, sir.\n“Q. Did you understand, with Dr. Wollman (sic), that that contract was to be signed by Mr. Butterfield and Mr. Head? A. No, sir.\n“Q. Now, if the note was to bo signed by them — A. Yes, sir.\n“Q. —why wasn’t this contract to be signed by them? A. Because I was appointed trustee to close the deal and handle it.\n“Q. Well, you were appointed trustee by whom? A. Well, they — ■\n“Q. Mr. Butterfield and Mr. Head? A. I was to handle the well and close the deal, that’s all.\n“Q. In connection with that matter, were you also authorized to sign the note? A. No, sir.\n*****\n“Q. Now, Dr. Wollman (sic) did, in fact, give you a check, a good check for $50,000.00 there on March 10th, in Mr. Head’s office, didn’t he? A. Yes, sir.\n“Q. And you took that and deposited it in the Second National Bank, didn’t you? A. Yes, sir.\n“Q. And it was paid, and you had that money available to put in the venture, didn’t you? A. Yes, sir.\n“Q. Now, you weren’t intending to wait until somebody else signed something before Dr. Wollman (sic) paid the money over to you and you accepted it, were you? A. Now, wait. Just what was that?\n“Q. You weren’t intending to wait until somebody else signed a note before you got the money from Dr. Wollman (sic), were you? A. Well, the well at that time, we had to go and tend to it right quick, or they were going to close the well down, and I had the drillers waiting on $600.00 a day time.\n“So I didn’t wait — I figured they all would sign it; they agreed to sign it; *308and I went on to rusk to get the driller, to get him started.\n“Q. Yes, sir. A. To keep from losing the rig.\n“Q. Yes, sir. It was urgent to do something that day, unless the whole deal was going to fall through; isn’t that right? A. Yes, sir. Yes, sir.\n* * * * *\n“Examination by the Court:\n“Q. You are telling me now, as I understand it, in answer to Mr. Ryan’s questions, that when you — that the matter was an urgent one, and that as soon as you got the check from Dr. Wollman (sic), you deposited it and used the proceeds ; you considered that it was all right for you to go ahead, because you were going to lose your lease or the rig was going to be moved off or something, if you didn’t act promptly? A. Yes, sir, I had to act promptly, Judge, or lose it.\n“Q. Well, do I understand, then, that you considered the trade final and definite when you got Dr. Wollman’s (sic) check, and used his money? A. Yes, sir. I didn’t figure' — I figured that — now, Judge, they taken the note and was going ahead and have Gordon Butterfield execute it, and I left it up to their honor to do that.\n“Q. You left it up to whose honor to do what? A. The ones that was supposed to sign that note with me.\n“Q. You mean you expected Mr. But-terfield and Mr. Head both to sign the note? A. Yes, sir. Yes, sir.\n“Q. Because they had told you they would? A. Yes, sir, that’s right.\n“Q. All right. So, so far as you are concerned, I take it from your testimony— A. Yes, sir.\n“Q. There was no uncertainty about the trade? A. No, sir.\n“Q. You considered it final? A. Yes, sir.\n“Q. And definite? A. Yes, sir.\n“Q. And you felt that you were justified in taking the money from Wollman (sic) and using it? A. And start the well immediately, because I had to get with Wolf, Grey Wolf Drilling Company.\n“Q. I see. A. And they were calling every hour, and they were going to pull the rig off if they didn’t—\n“Q. The point I am making is, as I understand what you are telling me, now— A. Yes, sir.\n“Q. —there were no uncertainties? A. No, sir.\n“Q. There were no contingencies? A. No, sir.\n“Q. There were no loose ends that had to be tied down before it was a final trade, in your mind? A. No, sir.”\n\n\n. The district court found that Edmiston had the authority to execute that agreement on behalf of Head and of Butter-field, and that finding is supported by well nigh conclusive evidence. See Footnote 2, supra.\n\n\n. Art. 5932, Sec. 18, Vernon’s Annotated Civil Statutes of Texas :\n“Sec. 18. No person is liable on the instrument whose signature does not appear thereon, except as herein otherwise expressly provided. One who signs in a trade or assumed name will be liable to *309the same extent as if he had signed in Ms own name.”\n\n\n. Art. 5932, Vernon’s Annotated Civil Statutes of Texas:\n“Sec. 19. The signature of any party may be made by a duly authorized agent. No particular form of appointment is necessary for this purpose; and the authority of the agent may be established as in other cases of agency.\n“Sec. 20. Where the instrument contains or a person adds to his signature words indicating that he signs for or on behalf of a principal, or in a representative capacity, he is not liable on the instrument if he was duly authorized; but the mere addition of words describing him as an agent, or as filling a representative character, without disclosing his principal, does not exempt Mm from personal liability.”\n\n\n. As said in Second Nat. Bank v. Ford, 1939, 132 Tex. 448, 123 S.W.2d 867, 869:\n“* * * By the provisions of the Negotiable Instruments Law, art. 5932, § 20, Cooley’s addition of the word ‘trustee’ after his signature without disclosing for whom he was acting did not exempt Mm from personal liability. Certainly the facts establish no exemption, but, on the contrary, they establish liability.”\n\n\n. See Huntington Finance Co. v. Young, 1928, 105 W.Va. 405, 143 S.E. 102, 104; 7 Am.Jur., Bills & Notes, § 62, pp. 820, 821; 8 Id., § 474, pp. 222, 223, footnotes 2 to 7; 10 C.J.S. Bills and Notes § 44b, p. 482.\n\n\n. See also, Camp v. Dallas Nat. Bank, Tex.Civ.App.1929, 21 S.W.2d 104, 109; Stubblefield v. Cooper, Tex.Civ.App.1930, 37 S.W.2d 818, 821; McFarland v. Shaw, Tex.Com.App.1932, 45 S.W.2d 193, 196; Schwab v. Schlumberger Well Surveying Corp., Tex.Civ.App.1946, 195 S.W.2d 412, 415; Continental Nat. Bank of Fort Worth v. Conner, 1948, 147 Tex. 218, 214 S.W.2d 928, 930; Allied Building Credits, Inc. v. Ellis, Tex.Civ.App.1953, 258 S.W.2d 165, 166.\n\n\n. 2 Tex.Jr., Agency, § 80, p. 477; 1 A.L.I., Bestatement of Agency, § 99; 2 Am.Jur., Agency, §§ 227, 228 ; 2 C.J.S. Agency § 49.\n\n",
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"author_str": "Cameron",
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"type": "040dissent",
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"opinion_text": "\nCAMERON, Circuit Judge\n(dissenting).\nThis is an action upon a promissory note. Both the original complaint and the amended complaint, filed over Head’s objections, made it plain that Wollmann was suing on the note quoted in the majority opinion.1\nThe court below found “that Edmiston, Head and Butterfield were not acting as partners in this venture (as contended by plaintiff), and I find that Head did not intend to authorize Edmiston to execute the promissory note (as distinguished from the written contract) as Head’s agent.” The concurring opinion of Judge JONES accepts this finding that the note executed by Edmiston as Head’s agent did not bind Head. The court concluded that, as far as the note was concerned, there was nothing in the Texas Statute or the facts which would “prevent recovery * * * for breach of his [Head’s] written promise to sign the note as maker. Head’s liability in this respect is clear.”\nThe only documents quoted in the court’s findings and conclusions were the note, Edmiston's letter of March 10 th to Wollmann in effect pledging 25,000 shares of Wymotex Oil Company stock “to satisfy the $50,000.00 furnished us,” and Head’s letter of March 9th to Woll-mann.\nThe finding of the court below that Edmiston’s effort to bind Head to the note was beyond the powers granted to him is the only finding which is supported by the evidence. It is equally clear that the suit as filed and as prosecuted in the lower court and in this Court must fail as to Head because it is an action on a writing not binding *311upon Head. The power of attorney granted by Head’s letter of March 9th to Wollmann was in writing and was in clear and explicit and unambiguous terms. The court could not, therefore, legally consider any extraneous proof in construing the note and the letter constituting the sole power relied upon for its execution on behalf of Head.\nEliminating the note, there is nothing in the Memorandum of Agreement executed by Adler Edmiston which binds, or purports to bind, Head to pay Woll-mann any money. Wollmann was advised that the note was to be signed by Head and not by Edmiston for him, and his releasing the money to Edmiston before presenting the note to Head for his signature, when the evidence shows that he was easily available, was completely unjustified.\nWollmann knew within a very short time after the execution of the papers by Edmiston that Head was not going to sign a note in the terms of the one sued on. Head’s reason was clear. He understood that, simultaneously with the closing of the deal, Edmiston and Butter-field were going to place stock with Woll-mann “to satisfy the $50,000.00 furnished us.” The trial court found the stock to be worth that amount of money— “This stock was then jointly owned by Edmiston and Butterfield, and had a value of some $2 a share.” The majority opinion rejects that finding by the court below while accepting the residue of its findings. Faced with a record containing as much vague and equivocal testimony on the part of all of the parties as this one, I do not feel justified in accepting some of the fact findings of the court below and rejecting others. It is my feeling that the court below committed an error of law in holding Head liable under the “deal” when Head categorically refused to sign the only thing which could obligate him personally to Wollmann. He had, without dispute as far as I can find, been led to believe that Wollmann was to be satisfied by the Wymotex stock. “Satisfy” is not a word of ambiguous, equivocal or uncertain meaning.2\n3\nThe undisputed proof of Wollmann’s dealings with Head is susceptible of no other construction but that he knew that Head had refused to sign a paper under which he would be personally bound to pay the $50,000. When he declined to sign the note because Wollmann did not have the proper papers, Wollmann took his papers back to his home in a distant state and kept them without ever mentioning the matter of a note from Head or making any demand for payment of a note for a period of more than four years. If, having parted with his $50,-000 without getting Head’s signature on the note, Wollmann wanted to protect himself, he had ample opportunity to begin action immediately following Head’s refusal, which would have prevented the $50,000 from being expended by Edmiston or anyone else. He failed to do so and demonstrated to Head and to everyone else that he was not relying on any supposed obligation of Head to answer to him personally for the money he had advanced. This construction by the two of the rights and obligations subsisting between them appears from evidence which is, in my judgment, uncon-tradicted.\nThe other theory of liability, presumably accepted by the majority, is that casually adverted to by the court below that Head was liable to Wollmann for failure to carry out his written agreement to sign a note. The first answer to this is that the contract would be unenforceable, because the kind of note to be executed by Head was not described in the writing. An agreement to make a contract must set forth all of the terms of the contract to be executed or it will be unenforceable.3 Nobody contends, *312therefore, that the note which Head referred to and which was executed by Edmiston in negotiable form was intended to be what on its face it purported to be. It was to be a note imposing an obligation different from that spelled out by the terms of the note sued on.\nIt is plain, moreover, that any action against Head for failure to carry out his contract to sign a note was barred by Article 5527 of the Texas Code requiring an action on an indebtedness evidenced by contract in writing to be brought within four years after the cause of action accrues. This action was brought nearly three months after the expiration of the four year period of limitation.\nThe court below summarized its basic findings in the sentence: “I find further that the ‘Memorandum of Agreement’ did no more than reduce to writing the oral understanding previously arrived at between the parties, and to which Head had assented on or before March 9, 1953.” It seems to me that what the court did was to endeavor to construct an obligation from the jumble of writings and testimony about them, and this was not permissible under the suit as filed and prosecuted.\nEven if the court had the right to permit the unambiguous writings upon which alone I think the case should be decided to be varied, amended and supplemented by the testimony of contemporaneous negotiations between the parties, I think the contract it enforced by its judgment is too unrealistic and lacking in mutuality to have our approval. Under its terms, Wollmann, having made considerable money risking his capital in other oil “gambles,” suddenly turned money-lender, making a loan to three joint venturers with him, one of whom he had, according to his amended complaint, investigated and found worth the money, accompanied by security undis-putedly adequate to satisfy the loan. In addition, he had an assignment of the first oil runs as further protection. And, finally, he was to receive a bonus of a half interest in the well — as much as the other three joint venturers together. Leaving out of view that he did not conceive the idea of attempting enforcement of the note against Head until more than four years had elapsed, we are asked to by-pass the writings and create from the sharply disputed testimony a contractual arrangement which, in my opinion, is at war with reason and with the pattern of like joint ventures which have come before the courts. See, e. g., Stricker v. Morgan, 5 Cir., 1959, 268 F.2d 882; Baker v. Nason, 5 Cir., 1956, 236 F.2d 483; Sample v. Romine, 1942, 193 Miss. 706, 8 So.2d 257, 9 So.2d 643, 10 So.2d 346 and McCartney v. McKendrick, 1956, 226 Miss. 562, 85 So.2d 164. I think it is safe, in a situation such as faces us here, to stick to the writings. Both law and “high justice” will be served better by such a course. For these reasons, I respectfully dissent.\nPER CURIAM.\nThe petitions for rehearing in the above styled and numbered cause are hereby denied.\nJudge CAMERON dissents from the portion of the order denying the Petition for Rehearing of Appellant Head and concurs in the residue.\n\n. Wollmann’s original complaint copied the note in the body of it and alleged “In so executing and delivering said note, defendant Edmiston was acting on his own behalf, and as agent for Head and Butterfield, and was expressly authorized in writing by Head and Butterfield to execute and deliver said note as an obligation binding upon both of them. By reason of the premises, the defendants Head and Edmiston, together with Butterfield, jointly and severally obligated themselves to pay the said note according to its tenor and effect.”\nIn his amended complaint filed over Head’s protest and after all of the evidence was in, Wollmann again copied the note, referred to the contract of March 10th executed by Edmiston and charged again: “In so executing and delivering said note, and in executing the said contract, defendant Edmiston was acting on his own behalf, and as agent for Head and Butterfield, who were, both on and prior to March 10, 1953, associated with him as partners in the development of the lease * * * referred to. In addition, Edmiston was expressly authorized in writing by both Head and Butterfield to execute and deliver the above described contract and note as obligations binding upon both of them. * * * ”\nThereupon he copied in the body of the amended complaint Head’s letter to him on March 9th wherein Head stated that Edmiston was authorized to close the deal, but that he would sign the note.\nThe only prayer of the original complaint was repeated in the amended complaint: “Wherefore, premises considered, plaintiff prays * * * that upon final trial he have judgment against them, jointly and severally, for the sum of $50,-000.00, together with interest thereon at the rate of two per cent per annum from March 10, 1953 until the date of judgment, plus ten per cent of the amount due as attorney’s fees * * thus demonstrating anew that he was suing upon the note.\nHis brief before us is devoted in considerable part to an effort to support his cross appeal for interest and attorney’s fees as provided in the note.\n\n\n. Webster’s New World Dictionary, 3953, p. 1295, defines the transitive verb “satisfy” as meaning: “5. (a) To give what is due to, (b) to discharge (an obligation, debt, etc.); settle in full.” 78 O.J.S. at page 582, gives a similar definition.\n\n\n. In appellee’s brief it is stated: “The promissory note, though negotiable on its *312face, was payable on a contingency, being the failure of the oil well to produce a sufficient return to reimburse * * * [Wollmann].”\n\n",
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| Fifth Circuit | Court of Appeals for the Fifth Circuit | F | USA, Federal |
836,119 | Per Curiam | 2002-02-07 | false | yugler-v-myers | Yugler | Yugler v. Myers | Richard YUGLER, Petitioner, v. Hardy MYERS, Attorney General, State of Oregon, Respondent | Thomas K. Doyle, Portland, argued the cause and filed the petition for petitioner., Brendan C. Dunn, Assistant Attorney General, Salem, argued the cause and filed the answering memorandum for respondent. With him on the answering memorandum were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General. | null | null | null | null | null | null | null | Argued and submitted January 16, | null | null | 0 | Published | null | <otherdate id="b368-2">
Argued and submitted January 16,
</otherdate><decisiondate id="ALq">
ballot title certified February 7, 2002
</decisiondate><br><parties id="b368-3">
Richard YUGLER,
<em>
Petitioner, v.
</em>
Hardy MYERS, Attorney General, State of Oregon,
<em>
Respondent.
</em>
</parties><br><docketnumber id="b368-10">
(SC S49042)
</docketnumber><br><citation id="b368-11">
39 P3d 186
</citation><br><attorneys id="b368-14">
Thomas K. Doyle, Portland, argued the cause and filed the petition for petitioner.
</attorneys><br><attorneys id="b368-15">
Brendan C. Dunn, Assistant Attorney General, Salem, argued the cause and filed the answering memorandum for respondent. With him on the answering memorandum were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.
</attorneys><br><judges id="b368-16">
PER CURIAM
</judges> | [
"333 Or. 330",
"39 P.3d 186"
]
| [
{
"author_str": "Per Curiam",
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": "http://www.publications.ojd.state.or.us/docs/S49042.htm",
"author_id": null,
"opinion_text": " \n \n \nFiled: February 7, 2002 \n \nIN THE SUPREME COURT OF THE STATE OF OREGON \n \n \n \n \nRICHARD YUGLER, \n \n\tPetitioner, \n \n \n\tv. \n \n \n \nHARDY MYERS, \nAttorney General, \nState of Oregon, \n \n\tRespondent. \n \n \n(SC S49042) \n \n \n \n\tEn Banc \n \n \n\tOn petition to review ballot title. \n \n \n\tArgued and submitted January 16, 2002. \n \n \n\tThomas K. Doyle, Portland, argued the cause and filed the \npetition for petitioner. \n \n \n\tBrendan C. Dunn, Assistant Attorney General, Salem, argued \nthe cause and filed the answering memorandum for respondent. \nWith him on the answering memorandum were Hardy Myers, Attorney \nGeneral, and Michael D. Reynolds, Solicitor General. \n \n \n\tPER CURIAM \n \n \n\tBallot title certified. This decision shall become \neffective in accordance with ORAP 11.30(11). \n \n \n\t\tPER CURIAM \n \n\tIn this ballot title review proceeding, petitioner \nchallenges various aspects of the Attorney General's certified \nballot title for a proposed initiative measure, which the \nSecretary of State has denominated as Initiative Petition 126 \n(2002). We review the Attorney General's certified ballot title \nto determine whether it substantially complies with the \nrequirements of ORS 250.035(2)(a) to (d). See ORS 250.085(5) \n(setting out standard of review). \n \n\t\tWe have considered petitioner's arguments and determine \nthat they are not well taken. Accordingly, we certify to the \nSecretary of State the following ballot title for the proposed \nmeasure:\t\t\t\t\t\t\t\t\t\t\t \n \n \nAMENDS CONSTITUTION: PROHIBITS, UNDER \nSPECIFIED CIRCUMSTANCES, RECOVERING \nDAMAGES FROM PERSONS LAWFULLY \nMANUFACTURING, DISTRIBUTING, SELLING, \nADVERTISING LAWFUL PRODUCTS \n \n \n \n\t\tRESULT OF \"YES\" VOTE: \"Yes\" vote prohibits \ngovernment recoveries for lawfully manufacturing, \ndistributing, selling, advertising lawful products; \nimmunizes persons conducting those activities against \nclaims for product's abuse, unlawful use. \n \n \n\t RESULT OF \"NO\" VOTE: \"No\" vote rejects: \nprohibiting government recoveries for lawfully \nmanufacturing, distributing, selling, advertising \nlawful products; immunizing persons conducting those \nactivities when product is abused, unlawfully used. \n \n \n\t SUMMARY: Amends Constitution. Under current law, \npersons manufacturing, distributing, selling, \nadvertising products may be liable for compensatory \ndamages and, when acting with malice or sufficient \nindifference, may be liable for punitive damages; \ndamages may be reduced, barred by contributory \nnegligence; sixty percent of all punitive damages go to \nstate; settlement with tobacco manufacturers requires \npayments to state. Measure provides that no person, \norganization, or business enterprise lawfully \nmanufacturing, distributing, promoting, or advertising \nlawful products shall be liable for damages resulting \nfrom another's abuse, unlawful use of those products. \nMeasure prohibits state, local, taxing governments from \nclaiming, or accepting in settlement, damages from \npersons, organizations, or business enterprises for \nlawfully manufacturing, distributing, selling, \npromoting, advertising any lawful product. Does not \nprevent prosecutions, injunctions otherwise available. \nOther provisions. \n \n \n\t\tBallot title certified. This decision shall become \neffective in accordance with ORAP 11.30(11). \n \n",
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| Oregon Supreme Court | Oregon Supreme Court | S | Oregon, OR |
2,674,690 | Hall, Kearse, Parker | 2014-05-16 | false | united-states-v-kerr | Kerr | United States v. Kerr | UNITED STATES of America, Appellee, v. Desmond KERR, Defendant-Appellant | Katherine ALfieri, Law Offices of Katherine Afieri, New York, NY, for Defendant-Appellant Desmond Kerr., Rajit S. Dosanjh, Assistant United States Attorney (Ransom P. Reynolds, Assistant United States Attorney, on the brief), for Richard S. Hartunian, United States Attorney for the Northern District of New York, Syracuse, NY, for Appellee United States of America. | null | null | null | null | null | null | null | Submitted: April 18, 2012., Amended: June 18, 2014. | null | null | 1 | Published | null | <parties id="b230-11">
UNITED STATES of America, Appellee, v. Desmond KERR, Defendant-Appellant.
</parties><br><docketnumber id="b230-14">
Docket Nos. 11-5462-cr(L), 10-3393-cr(con).
</docketnumber><br><court id="b230-15">
United States Court of Appeals, Second Circuit.
</court><br><otherdate id="b230-16">
Submitted: April 18, 2012.
</otherdate><decisiondate id="Ayi">
Decided: May 16, 2014.
</decisiondate><otherdate id="Adz">
Amended: June 18, 2014.
</otherdate><br><attorneys id="b234-9">
<span citation-index="1" class="star-pagination" label="210">
*210
</span>
Katherine ALfieri, Law Offices of Katherine Afieri, New York, NY, for Defendant-Appellant Desmond Kerr.
</attorneys><br><attorneys id="b234-10">
Rajit S. Dosanjh, Assistant United States Attorney (Ransom P. Reynolds, Assistant United States Attorney, on the brief), for Richard S. Hartunian, United States Attorney for the Northern District of New York, Syracuse, NY, for Appellee United States of America.
</attorneys><br><judges id="b234-11">
Before: KEARSE, PARKER, and HALL, Circuit Judges.
</judges> | [
"752 F.3d 206"
]
| [
{
"author_str": "Hall",
"per_curiam": false,
"type": "010combined",
"page_count": 28,
"download_url": "http://www.ca2.uscourts.gov/decisions/isysquery/91ff72cd-6369-4c9b-9737-eb2f9e4d5f64/5/doc/11-5462_opn.pdf",
"author_id": null,
"opinion_text": "11‐5462‐cr(L)\t\nUnited\tStates\tv.\tKerr\t \t \t\n\n UNITED STATES COURT OF APPEALS\n FOR THE SECOND CIRCUIT\n\n August Term, 2011\n\n (Submitted: April 18, 2012 Decided: May 16, 2014)\n\n Docket Nos. 11-5462-cr(L), 10-3393-cr(con)\n________________________________________________________________________\n\n UNITED STATES OF AMERICA,\n\n Appellee,\n\n - v. -\n\n DESMOND KERR,\n\n Defendant-Appellant.\n________________________________________________________________________\n\nBefore:\n KEARSE, PARKER, and HALL, Circuit Judges.\n\n Appeal from the August 6, 2010 judgment of the United States District Court for the\nNorthern District of New York (Glenn T. Suddaby, District Judge), convicting Appellant,\nfollowing his mid-trial guilty plea, of possession with intent to distribute\nmethylenedioxymethamphetamine and sentencing him principally to 121 months’\nincarceration. We affirm for the reasons set forth below.\n\n AFFIRMED.\n\n\n KATHERINE ALFIERI, Law Offices of Katherine Alfieri,\n New York, NY, for Defendant-Appellant Desmond\n Kerr.\n\n RAJIT S. DOSANJH, Assistant United States Attorney\n (Ransom P. Reynolds, Assistant United States\n Attorney, on the brief), for Richard S. Hartunian,\n United States Attorney for the Northern District\n of New York, Syracuse, NY, for Appellee United\n States of America.\n\n\n\t 1\n\t\n\f11‐5462‐cr(L)\t\nUnited\tStates\tv.\tKerr\t \t \t\n\n\n\nHALL, Circuit Judge:\n\n Defendant-Appellant Desmond Kerr is a Canadian citizen who was arrested by\n\nUnited States customs authorities after they searched his vehicle at the U.S.-Canadian border\n\nand discovered thousands of pills containing 3, 4 methylenedioxymethamphetamine\n\n(“MDMA”), a Schedule I controlled substance. Kerr was charged with one count of\n\nknowingly and intentionally possessing MDMA with intent to distribute, in violation of 18\n\nU.S.C. § 841(a)(1) and (b)(1)(C). A turbulent pretrial period ensued, during which Kerr\n\nceased communicating with and then effectively fired his first two appointed attorneys,\n\ninsisted on pressing several ill-advised theories of defense to the exclusion of all others, and\n\nunderwent a court-ordered competency examination that ultimately found him competent to\n\nstand trial. Kerr elected to represent himself at trial but, with the assistance of a newly\n\nappointed attorney, pled guilty midway through. After entering his plea, Kerr resumed his\n\nprior behavior: he again refused to communicate with counsel and filed numerous pro se\n\nmotions in which he sought to withdraw his plea, press his theories of defense, and obtain\n\nthe assistance of new counsel. At sentencing, Kerr’s attorney expressed concern about\n\nKerr’s mental stability and represented that Kerr had been unable to help him prepare for\n\nsentencing; the district court also commented on Kerr’s belligerent and counterproductive\n\nbehavior. Ultimately, the district court sentenced him principally to 121 months’\n\nimprisonment, rejecting his several sentencing arguments.\n\n Through new counsel, Kerr argues on appeal that his “erratic” and “irrational”\n\nbehavior following the entry of his plea required the district court to hold a competency\n\nhearing before imposing sentence and that he was deprived of his Sixth Amendment right to\n\n\t 2\n\t\n\f11‐5462‐cr(L)\t\nUnited\tStates\tv.\tKerr\t \t \t\n\ncounsel by the denial of his multiple post-plea requests for an attorney to help him withdraw\n\nhis plea. He also challenges several aspects of the sentence imposed. In a separate pro se\n\nbrief, Kerr contends that the district court erroneously denied his pro se motion to withdraw\n\nhis plea and challenges several pre-plea aspects of his prosecution and trial. We affirm.\n\n BACKGROUND\n\n In February 2009, Customs and Border Protection officers searched Kerr’s vehicle as\n\nhe attempted to enter the United States from Canada at the Alexandria Bay, New York port\n\nof entry. In the course of the search, the officers discovered approximately seven thousand\n\npills containing MDMA. The officers found the pills in two locations: four thousand were\n\nconcealed in black packages between the vehicle’s front seats, while the remaining three\n\nthousand were stowed within the vehicle’s rear interior paneling. Together, the seven\n\nthousand pills weighed 2,068 grams. Kerr was arrested and charged with one count of\n\npossession with attempt to distribute MDMA.\n\nI. Pretrial Proceedings\n\n Between his February 2009 arraignment and his April 2010 trial, Kerr cycled through\n\na succession of attorneys and inundated the district court with numerous pro se requests for\n\nits assistance with his several theories of defense. First, in September 2009, Kerr moved to\n\nreplace the Federal Public Defender initially assigned to his case. The district court granted\n\nthe motion and, after Kerr expressed dissatisfaction with a second attorney, appointed\n\nJeffery DeRoberts as new counsel. Several weeks later, DeRoberts informed the court that\n\nKerr was unhappy with his representation and had requested that the court appoint a\n\ndifferent attorney known to Kerr. The district court denied this request, explaining that\n\n\n\t 3\n\t\n\f11‐5462‐cr(L)\t\nUnited\tStates\tv.\tKerr\t \t \t\n\nKerr was not entitled to choose assigned counsel. At a subsequent conference and\n\nsuppression hearing held in October 2009, Kerr alleged that the government had improperly\n\ndestroyed a number of the recovered MDMA pills, that the assigned Assistant United States\n\nAttorney (“AUSA”) had committed perjury, and that his various attorneys had refused to file\n\nmotions addressing these issues.1 When Kerr continued to interject and press these pro se\n\narguments, the district court halted the proceedings to inquire whether he understood the\n\ncharge against him, the potential penalties he faced, and the importance of his attorney.\n\nKerr confirmed that he was charged with possession with intent to distribute, stated that he\n\nunderstood the penalties, and acknowledged that his lawyer had knowledge of the law and\n\ncourt procedure he did not possess.\n\n On December 9, 2009, some five days before the scheduled trial date, the district\n\ncourt held a final pretrial conference during which Kerr represented that DeRoberts was\n\n“ineffective” and in “dereliction of duty.” Kerr repeatedly stated that he did not want\n\nDeRoberts to speak on his behalf or appear at trial, and that he wished to represent himself.\n\nThe court acknowledged Kerr’s right to self-representation and stated that DeRoberts would\n\nbe available at trial as standby counsel. Kerr objected to this proposal, informing the court\n\n\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\n\t\n1 In December 2009, Kerr filed a pro se notice of appeal from the district court’s denial of his\nsuppression motion and his motion to dismiss the indictment due to the government’s\ndestruction of evidence. The resulting interlocutory appeal remained pending in this Court\nwithout substantive filings by either party until October 2011, when the government moved\nto dismiss the appeal as taken from a non-final order. By that time, however, the\ninterlocutory appeal had been designated the lead case and consolidated with Kerr’s August\n2010 appeal from his final judgment of conviction, which by then was fully-briefed. In\nFebruary 2012, we denied the government’s motion to dismiss, but construed Kerr’s\narguments made in the interlocutory appeal as relating to his 2010 appeal from the final\njudgment.\n\n\t 4\n\t\n\f11‐5462‐cr(L)\t\nUnited\tStates\tv.\tKerr\t \t \t\n\nthat he wanted to call DeRoberts as a defense witness to testify about the government’s\n\n“perjury” as to the existence of certain surveillance videotapes of the border crossing. Kerr\n\nalso requested that the court subpoena several other witnesses, including the then-Chief\n\nJudge of the Northern District of New York and the then-interim United States Attorney for\n\nthe Northern District of New York. Kerr refused to explain his reasons for subpoenaing\n\nthese last witnesses, stating only that the court would “find out” on the date of trial.\n\n Expressing concern with Kerr’s “wilder and wilder” requests and “self-destructive”\n\ndecisions, the district court adjourned the trial and ordered him, pursuant to 18 U.S.C.\n\n§ 4241(a), to undergo a mental competency examination. After examining Kerr,\n\npsychologists at the Federal Medical Center (“FMC”) found him competent to stand trial\n\nand presented those results in a forensic medical report dated March 19, 2010. The report\n\ndescribed Kerr as “an obstinate, strong-willed, and opinionated individual” whose\n\ndissatisfaction with his attorneys stemmed not from “psychotic symptoms,” but rather from\n\n“his belief that his attorneys ha[d] not done sufficient work to mount an adequate defense.”\n\nThe report also explained that Kerr’s defensive strategy of accusing the AUSA of perjury,\n\nwhile possibly imprudent, was not evidence of incompetence. In sum, the report concluded\n\nthat Kerr was able to assist his attorney in preparing a defense if he so chose, and that there\n\nwas no “objective evidence” that he suffered from “a mental disorder which would impair\n\nhis ability to understand the nature and consequences of the court proceedings against him.”\n\n The district court reconvened on March 31, 2010. On that date, Kerr did not permit\n\nDeRoberts to sit with him at counsel table. He adamantly expressed his desire to represent\n\nhimself with the assistance only of standby counsel, insisting that the results of the\n\n\n\t 5\n\t\n\f11‐5462‐cr(L)\t\nUnited\tStates\tv.\tKerr\t \t \t\n\ncompetency evaluation proved his ability to do so. The court granted DeRoberts’s resulting\n\nmotion to withdraw on the ground that there had been a complete breakdown in attorney-\n\nclient communication. In his stead, the court appointed Robert Wells as standby counsel\n\nand directed Kerr to consult with him. At the close of the conference, the court scheduled\n\ntrial to begin on April 14, 2010 and explained to Kerr that it would ask him a series of\n\nquestions at the beginning of trial to ensure he fully understood the implications of self-\n\nrepresentation.\n\nII. Trial and Guilty Plea\n\n On the scheduled trial date, Kerr appeared with Wells as standby counsel. Before\n\njury selection, the district court stated that it had previously “advised [Kerr] of the\n\ndisadvantages of representing [himself]” and inquired of Kerr whether that remained his\n\nintention. Kerr confirmed that it was. The court cautioned him that self-representation was\n\n“very difficult” and that, despite his pro se status and lack of legal training, he was required to\n\nfollow the court’s instructions and comply with the rules of evidence and procedure. When\n\nKerr renewed his request to subpoena three witnesses—his former attorney, the former\n\ninterim United States Attorney, and the Chief Judge of the Northern District—the court\n\nstated that it would issue the subpoenas only if Kerr explained how their testimony was\n\nrelevant to the pending criminal charge. Kerr demurred, claiming that he should not be\n\nrequired to disclose his theory of defense. Again, the court flagged Kerr’s lack of legal\n\ntraining, explaining, inter alia, that any testimony of these witnesses would “certainly” be\n\nhearsay and the fact that his former attorney represented Kerr in the matter did not make\n\n\n\n\n\t 6\n\t\n\f11‐5462‐cr(L)\t\nUnited\tStates\tv.\tKerr\t \t \t\n\nthe attorney “a witness with any relevant testimony to offer in this case.” The court later\n\nurged Kerr to consult with Wells concerning issues of jury selection.\n\n On April 14, the case proceeded to trial at which Kerr selected a jury in consultation\n\nwith Wells; gave an opening statement premised on his theories that the AUSA committed\n\nperjury, the government destroyed evidence, and he was prevented from calling his chosen\n\nwitnesses; extensively cross-examined government witnesses; and made relevant objections.\n\nUpon the close of the government’s evidence on April 16, however, Kerr informed the court\n\nthat he intended to plead guilty to the charge. The following exchange took place:\n\n THE COURT: Now, have you agreed to allow Mr. Wells to\n represent you in this matter, for this --\n THE DEFENDANT: Yes, your Honor.\n THE COURT: -- in this capacity? Because there are questions\n that I’m going to need to ask him and he needs to advise you\n and hopefully he’s talked to you about the Sentencing\n Guidelines . . . .\n THE DEFENDANT: Yes.\n\nAppellant App’x at 96. Following this colloquy, the district court informed Kerr that it was\n\n“going to at this point accept the fact that Mr. Wells is your attorney.”\n\n The court conducted a change of plea hearing that same day.2 Kerr testified that he\n\nwas not under the care of a doctor or psychiatrist and that his ability to understand the\n\nproceeding was not impaired. Attorney Wells also stated that he was satisfied that Kerr’s\n\nplea was given freely and voluntarily. Based upon these representations and Kerr’s other\n\nresponses during its Rule 11 inquiry, the court determined that he was “competent and\n\n\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\n\t\n2 Although Kerr did not plead guilty pursuant to a formal plea agreement, he agreed during\nthe change of plea hearing to withdraw his December 2009 interlocutory appeal from the\ndenial of his suppression motion and motion to dismiss.\n\n\t 7\n\t\n\f11‐5462‐cr(L)\t\nUnited\tStates\tv.\tKerr\t \t \t\n\ncapable of entering an informed plea.” As to the factual basis for the plea, the government\n\nexplained that its proof at trial had shown that the Customs and Border Protection officers\n\ndiscovered pills containing MDMA in two locations of Kerr’s vehicle and that, in total, the\n\nrecovered pills weighed 2,068 grams. Kerr confirmed this assessment of the evidence,\n\nfurther explaining that he had entered into an agreement with an unidentified individual\n\nwhereby the individual would place something in his parked vehicle and then, in exchange\n\nfor $5,000, Kerr would drive the vehicle from Canada to New York. After accepting the\n\nplea, the district court told Kerr that the Probation Department would interview him in\n\nconnection with his presentence report and that “Wells can be there with you if you like,\n\nthat’s up to you and him.”\n\nIII. Post-Plea Proceedings & Sentencing\n\n Several days after pleading guilty, Kerr filed a pro se motion to withdraw his plea—\n\nthe first in a succession of pro se motions he filed in the post-plea, pre-sentencing phase of\n\nthe case. Kerr asserted in the motion that he wanted to “take back” his plea to permit the\n\n“the jury [to] find [him] guilty or not guilty.” The district court denied his request on April\n\n26, concluding that Kerr’s plea allocution satisfied the requirements of Federal Rule of\n\nCriminal Procedure 11(b), he had not shown a “fair and just” reason for withdrawing the\n\nplea, and he had not accounted for the prejudice that would inure to the government and the\n\ncourt if his request were granted.\n\n\n\n\n\t 8\n\t\n\f11‐5462‐cr(L)\t\nUnited\tStates\tv.\tKerr\t \t \t\n\n On May 14, Kerr requested the appointment of counsel to assist him with, inter alia, a\n\nmotion to withdraw his guilty plea.3 The following day, he again moved to withdraw his\n\nplea, asserting, without providing specifics, that the AUSA and government witnesses had\n\nperjured themselves, he had received ineffective assistance of counsel, there were “valid\n\ngrounds for withdrawing [his] guilty plea,” and he had a “claim of innocence.” Kerr\n\nreiterated his request for new counsel in a June 22 letter and in a July 7 pro se motion to\n\ndismiss the charges due to the government’s alleged perjury and destruction of evidence. In\n\nhis June 22 letter, Kerr claimed, for the first time, that “standby counsel” provided\n\nineffective assistance by “instructing [him] to plea[d] guilty.” The court denied all pending\n\nmotions by order entered on July 22, ruling that both Kerr’s request for new counsel and his\n\nrenewed motion to withdraw his plea were “unsupported by a showing of cause,” and noting\n\nthat in April it had denied Kerr’s first motion to withdraw his guilty plea.4\n\n While these events unfolded, the Probation Department submitted a presentence\n\nreport in which it held Kerr accountable for the entire quantity of MDMA pills found in the\n\nvehicle. Based on a total offense level of 32 and Kerr’s criminal history category of I, the\n\nProbation Department calculated Kerr’s advisory sentencing range under the United States\n\nSentencing Guidelines as 121 to 151 months’ imprisonment. It also noted that Kerr had\n\n\n\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\n\t\n3 Wells informed Kerr before the submission of this letter that, given his affirmations during\nthe change of plea hearing regarding the knowing and voluntary nature of Kerr’s plea, he\nwas “prohibited” from assisting Kerr with the motion to withdraw the plea. Wells also\nurged Kerr to “return to representing [himself] pro se” so that Wells could advise him as he\nproceeded.\n4 The court also denied Kerr’s several pro se motions to set aside the “jury verdict” and to\n\nvacate his conviction on various grounds.\n\n\t 9\n\t\n\f11‐5462‐cr(L)\t\nUnited\tStates\tv.\tKerr\t \t \t\n\nrefused to meet with the Probation officer tasked with preparing the report. In a pro se letter\n\nsent shortly before sentencing, Kerr explained that although he had wanted to meet with the\n\nProbation officer, he did not wish to do so with Wells present because Wells had “lied” to\n\nhim during trial.\n\n For his part, Wells explained in a sentencing memorandum submitted on Kerr’s\n\nbehalf that Kerr had refused to meet with him to prepare for sentencing; he also expressed\n\nhis concern with Kerr’s “mental stability.” Wells took issue with the FMC psychologists’\n\ncompetency determination, representing that although he had no “training in mental health\n\ndiagnosis,” Kerr’s actions over the course of the prosecution were “not that of a rational and\n\nundisturbed mind” and he had been unable to help Wells prepare for sentencing. Wells\n\nfurther advised the court that he could not ethically help Kerr with the motion to withdraw\n\nthe plea because his affirmation at the change of plea hearing that Kerr pled guilty\n\nvoluntarily created a “classic and irremediable conflict” with respect to that motion. He\n\ntherefore urged the court to appoint new counsel for purposes of that motion. Finally,\n\nWells argued that Kerr should be held accountable only for the four thousand MDMA pills\n\nfound between the front seats of his vehicle because there was no evidence he knew about\n\nthe pills hidden within the rear interior paneling.\n\n The court imposed sentence on August 4, 2010. Although Wells appeared at the\n\nhearing, he informed the court that Kerr had instructed him not to speak. In his statement\n\nto the court, Kerr again expounded at length upon his theories that the government\n\nimproperly destroyed a number of the MDMA pills, the AUSA committed perjury, and the\n\ncourt improperly deprived him of the opportunity to call his chosen witnesses at trial. The\n\n\n\t 10\n\t\n\f11‐5462‐cr(L)\t\nUnited\tStates\tv.\tKerr\t \t \t\n\ncourt interjected, stating that Kerr was “hung up on . . . insignificant . . . details” irrelevant\n\nto sentencing. It went on: “I cannot figure you out, sir, which is why I had a mental exam\n\ndone. They tell me you’re competent and capable but you are the most belligerent individual\n\nI have ever met in my life . . . , [and] I can’t figure out why.” The court further asserted that\n\nKerr’s refusal to accept the advice of an attorney had “made [his] situation so much worse.”\n\nAfter obtaining Kerr’s permission to speak, Wells again expressed his concerns about Kerr’s\n\nmental state and reiterated his disagreement with the FMC psychologists’ competency\n\ndetermination. He also argued that the court should recognize Kerr’s minor role as a\n\n“courier” or “drug mule.”\n\n After hearing from the government, the court adopted the facts contained in the\n\npresentence report and found, consistent with the calculations of the Probation Department,\n\nthat Kerr’s Guidelines range of imprisonment was 121 to 151 months. The court sentenced\n\nKerr to 121 months’ imprisonment, explaining that it found the sentence “fair, just, and\n\nsufficient but not greater than necessary to comply with the goals of sentencing set forth in\n\n18 U.S.C. 3553(a).” The court emphasized that, had Kerr been “more cooperative” with\n\ncounsel and the Probation Department, it may have been presented with a “fuller record”\n\njustifying the imposition of a lesser sentence, especially given his lack of criminal history.\n\nOnce again, the court remarked that it could not understand Kerr’s intransigent behavior.\n\nKerr timely appealed the court’s August 6, 2010 judgment. Approximately one week later,\n\nhe submitted a letter reiterating that Wells was “standby counsel” only and did not speak on\n\nhis behalf.\n\n\n\n\n\t 11\n\t\n\f11‐5462‐cr(L)\t\nUnited\tStates\tv.\tKerr\t \t \t\n\n DISCUSSION\n\nI. Kerr’s Competency\n\n Due process “‘prohibits the criminal prosecution of a defendant who is not\n\ncompetent to stand trial.’” United States v. Quintieri, 306 F.3d 1217, 1232 (2d Cir. 2002)\n\n(quoting Medina v. California, 505 U.S. 437, 439 (1992)). A defendant is not competent, and\n\nthe criminal proceeding against him may not progress, when his “mental condition is such\n\nthat he lacks the capacity to understand the nature and object of the proceedings against\n\nhim, to consult with counsel, and to assist in preparing his defense.” Drope v. Missouri, 420\n\nU.S. 162, 171 (1975). This constitutional right is safeguarded by 18 U.S.C. § 4241, which\n\nrequires the district court, upon its own motion if necessary, to hold a competency hearing\n\n“if there is reasonable cause to believe that the defendant may presently be suffering from a\n\nmental disease or defect rendering him mentally incompetent to the extent that he is unable\n\nto understand the nature and consequences of the proceedings against him or to assist\n\nproperly in his defense.” 18 U.S.C. §\t4241(a); see also United States v. Zhou, 428 F.3d 361, 379\n\n(2d Cir. 2005) (noting that the standards under due process and § 4241 are “essentially\n\nequivalent” (citing Nicks v. United States, 955 F.2d 161, 168 (2d Cir. 1992))).\n\n The existence of “reasonable cause” is a highly particularized assessment that “‘varies\n\nin each case.’” Zhou, 428 F.3d at 379 (quoting United States v. Nichols, 56 F.3d 403, 414 (2d\n\nCir. 1995)). We have identified several factors upon which the district court may rely when\n\nmaking the reasonable cause determination, including psychiatric reports assessing the\n\ndefendant’s competence, see Zhou, 428 F.3d at 379, and the court’s own “observations of the\n\ndefendant’s demeanor during the proceeding,” Quintieri, 306 F.3d at 1233. See also Drope, 420\n\n\n\t 12\n\t\n\f11‐5462‐cr(L)\t\nUnited\tStates\tv.\tKerr\t \t \t\n\nU.S. at 180 (explaining that there are “no fixed or immutable signs which invariably indicate\n\nthe need for further inquiry to determine [the defendant’s] fitness to proceed”). The right\n\nnot to be prosecuted while incompetent “spans the duration of a criminal proceeding.”\n\nUnited States v. Arenburg, 605 F.3d 164, 168 (2d Cir. 2010). A district court must therefore\n\n“‘always be alert to circumstances suggesting a change that would render the accused unable to\n\nmeet the standards of competence to stand trial,’” id. at 168-69 (quoting Drope, 420 U.S. at\n\n181) (emphasis in original), an obligation that “takes on increased significance where, as here,\n\na criminal defendant elects to proceed pro se,” id. at 169. We review a district court’s decision\n\nnot to order a competency hearing for abuse of discretion. Id.\n\n Here, the district court acted well within its discretion when it declined to order a\n\ncompetency hearing before accepting Kerr’s April 16, 2010 guilty plea. Although the court\n\nwas obviously troubled by Kerr’s pretrial behavior, it was entitled to rely on the March 19,\n\n2010 forensic report that found him competent to understand the proceedings and capable\n\nof working with his attorney if he so chose. Zhou, 428 F.3d at 379. In addition, the district\n\ncourt had the benefit of observing Kerr during the March 31 pretrial conference and the\n\nApril 14-16 trial. The transcripts of those proceedings show that although he was unfamiliar\n\nwith the law and court procedure, Kerr vocally advocated on his own behalf, made relevant\n\nobjections during the government’s direct examination of witnesses, and consulted with\n\nstandby counsel when necessary. During the change-of-plea hearing, Kerr also responded\n\ncogently to the district court’s inquiries and displayed his understanding of the charge. In\n\nshort, we discern no unusual circumstances that should have given the district court pause\n\nbefore accepting Kerr’s plea. See Quintieri, 306 F.3d at 1233; see also Wojtowicz v. United States,\n\n\n\t 13\n\t\n\f11‐5462‐cr(L)\t\nUnited\tStates\tv.\tKerr\t \t \t\n\n550 F.2d 786, 791 (2d Cir. 1977) (where a defendant has been found competent following a\n\ncourt-ordered evaluation, a district court generally is “not required to hold a competency\n\nhearing before accepting a plea”); Saddler v. United States, 531 F.2d 83, 86 (2d Cir. 1976)\n\n(district court under no obligation to question a defendant’s competency when his “answers\n\nto the court’s Rule 11 inquiries, his demeanor and his testimony . . . all appeared to be\n\nrational and coherent”).5\n\n Having concluded that the district court was not required to hold a competency\n\nhearing before Kerr’s April 16 plea, we must now assess whether the record reflects any\n\n“circumstances suggesting a change that would render [Kerr] unable to meet the standards\n\nof competence” by the time of his August 4 sentencing. Arenburg, 605 F.3d at 168-69\n\n(internal quotation marks omitted). In his counseled brief, Kerr contends there were two\n\nsuch circumstances: his “erratic” and “irrational” post-plea behavior, and Wells’s\n\nrepresentations that the FMC psychologists “missed something” and that Kerr was unable to\n\nhelp him prepare for sentencing.\n\n We first hold that, upon consideration of the whole record, Kerr’s post-plea behavior\n\nwas not so “erratic” that it should have given the district court reason to doubt his\n\ncompetency. Indeed, the record reflects that Kerr’s obstinate, belligerent, and obsessive\n\nbehavior remained a constant throughout the entire proceedings. The district court ordered\n\nthe pretrial competency evaluation after it became increasingly disturbed by Kerr’s obsession\n\nwith his pro se theories of defense to the exclusion of other issues, his refusal to cooperate or\n\n\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\n\t\n5 Given this conclusion, we reject any suggestion in counsel’s brief that Kerr was “likely”\nincompetent at the time of his trial and plea. See Appellant Br. at 45 & n.12.\n\n\t 14\n\t\n\f11‐5462‐cr(L)\t\nUnited\tStates\tv.\tKerr\t \t \t\n\ncommunicate with his attorneys, and his insistence on subpoenaing irrelevant witnesses.\n\nThis is precisely the same behavior Kerr flags as “erratic” in the post-plea phase of the case,\n\nwhen he cut off communication with Wells and repeatedly attempted to press his theories of\n\ndefense despite having pled guilty. Although the “obligation to be vigilant for reasonable\n\ncause [to question the defendant’s competency] . . . does not disappear upon a pretrial\n\nfinding that the defendant is competent to stand trial,” Arenburg, 605 F.3d at 170 (internal\n\nquotation marks omitted), under the circumstances of this case we will not fault the district\n\ncourt—which observed Kerr over the entirety of the proceedings below—for not twice\n\nquestioning the same behavior. Kerr’s situation is therefore distinguishable from those cases\n\nin which we have found it necessary for courts to revisit their initial reasonable cause\n\ndeterminations. See id. at 169-71 (district court erred by suggesting that a magistrate judge’s\n\npretrial competency determination was dispositive of the defendant’s competence at trial and\n\nwas required to revisit the reasonable cause determination where, at trial, the assigned AUSA\n\nquestioned the defendant’s mental stability and the defendant, who had a history of mental\n\nillness, made numerous incoherent statements); Wojtowicz, 550 F.2d at 789-90 (remanding to\n\nthe district court for an evidentiary hearing where defendant, who was assessed as competent\n\nbefore the entry of his plea, submitted a post-judgment affirmation stating that he had\n\nattempted to commit suicide on the morning of sentencing).\n\n Kerr’s obsession with his defensive theories, his distrust of his attorneys, and his\n\nbelligerent attitude were also not so bizarre as to require the district court to question his\n\ncompetency for a second time. Compare Arenburg, 605 F.3d at 171 (reasonable cause to\n\nreconsider defendant’s competency where “he made repeated references to ‘radio waves,’\n\n\n\t 15\n\t\n\f11‐5462‐cr(L)\t\nUnited\tStates\tv.\tKerr\t \t \t\n\n‘microwave channels,’ and a conspiracy involving MGM Studios and the government with\n\nthe object of publicly broadcasting his thoughts”), and United States v. Auen, 846 F.2d 872,\n\n874-75, 878 (2d Cir. 1988) (finding reasonable cause for a competency hearing and\n\nremanding for the district court to conduct such a hearing where defendant, inter alia,\n\ncompared the agent investigating his case with a cat he had put down, complained that he\n\nhad been the victim of “psychopolitical terrorism by the Internal Revenue Service,” and\n\nthreatened the government’s attorneys), with Zhou, 428 F.3d at 380-81 (no reasonable cause\n\nto question defendant’s competency where the district court had observed the defendant\n\n“over a substantial period of time” and the defendant was found competent in a medical\n\nreport that described him as “defensive, stubborn, and evasive regarding the details of his\n\ncase”). Disputes between criminal defendants and their attorneys are not at all uncommon,\n\nsee United States v. White, 174 F.3d 290, 296 (2d Cir. 1999), and many defendants “assert that\n\ntheir rights have been denied at every turn,” “demonstrate that they do not understand how\n\nthe legal system handles witnesses,” and “forget or choose to ignore what judges said\n\nearlier,” Timberlake v. Davis, 409 F.3d 819, 823 (7th Cir. 2005). In sum, although Kerr\n\n“demonstrated that he can be rude, unreasonable, and myopic in his approach to this case,\n\nthat is not the same as incompetence and is not the type of conduct that implies the kind of\n\nmental shortcomings required to oblige a district court to sua sponte order a competency\n\nexamination.” United States v. Alden, 527 F.3d 653, 660 (7th Cir. 2008).\n\n Against a different backdrop, we may well have greater cause for alarm when\n\nconfronted with such statements by defense counsel as Wells’s that his client was acting\n\nirrationally and could not assist with preparing a defense. Cf. United States v. Kirsh, 54 F.3d\n\n\n\t 16\n\t\n\f11‐5462‐cr(L)\t\nUnited\tStates\tv.\tKerr\t \t \t\n\n1062, 1071 (2d Cir. 1995) (noting that defense counsel’s failure to indicate the defendant\n\ncould not assist in her defense or understand proceedings was “substantial evidence” of\n\ncompetency). Here, however, the district court had substantially longer experience with\n\nKerr over the course of the proceedings than did Wells, who did not become standby\n\ncounsel until immediately before trial. In addition, Wells freely acknowledged that, in\n\nmaking these representations, he had “no training in mental health diagnosis.” Appellant\n\nApp’x at 235. Finally, it is apparent that Wells’s declaration that Kerr could not help him\n\nprepare for sentencing was based on Kerr’s refusal to meet with him, which, as we have\n\nnoted, was consistent with Kerr’s pretrial behavior toward his former attorneys. Given all\n\nof the above, we hold that the district court did not abuse its discretion by not revisiting the\n\nissue of Kerr’s competency before imposing sentence.\n\nII. Sixth Amendment Right to Counsel during Post-Plea Proceedings\n\n As an initial matter, although Kerr suggests that it “appears . . . [he] never entered a\n\nconstitutionally sufficient waiver of his right to counsel” because the district court\n\n“neglected to engage in the appropriate waiver of counsel inquiry” before allowing him to\n\nproceed pro se, he expressly forgoes a separate Sixth Amendment claim premised on this\n\nsupposed deficiency. See Appellant Br. at 24 & n.10. We therefore decline to address the\n\npropriety of the district court’s pretrial ruling permitting Kerr to represent himself. See\n\nNorton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in the\n\n\n\n\n\t 17\n\t\n\f11‐5462‐cr(L)\t\nUnited\tStates\tv.\tKerr\t \t \t\n\nbriefs are considered waived and normally will not be addressed on appeal.”); see also United\n\nStates v. Greer, 285 F.3d 158, 170 (2d Cir. 2002) (same).6\n\n With respect to the Sixth Amendment arguments he does raise, Kerr first asserts in\n\nhis counseled brief that it is unclear from the record whether, at the change of plea hearing,\n\nthe district court appointed Wells as counsel for the remainder of the proceedings, or only\n\nfor the entry of the plea. Appellant Br. 25. Given this opacity, Kerr advances two\n\nalternative arguments regarding right to counsel. First, he contends that if the district court\n\nelevated Wells from standby counsel to full counsel only for purposes of the plea, then it\n\ndeprived him of his right to counsel at a critical stage of the proceeding when it denied his\n\nrequest for counsel’s assistance with his motion to withdraw the plea. Appellant Br. at 25-\n\n\n\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\n\t\n6 Even if were we to reach this issue, we likely would conclude that Kerr knowingly and\nintelligently waived his right to counsel before trial. See Faretta v. California, 422 U.S. 806, 835\n(1975) (holding that a defendant who seeks to represent himself “should be made aware of\nthe dangers and disadvantages of self-representation, so that the record will establish that he\nknows what he is doing and his choice is made with eyes open” (internal quotation marks\nomitted)). The record reflects that over the course of the pretrial proceedings, during which\nhe repeatedly and emphatically demanded to represent himself, Kerr: (1) confirmed that he\nunderstood the nature of the charges and the potential penalties he faced, see Special App’x\nat 28; and (2) acknowledged the importance of having the assistance of an attorney, see id. at\n55-56. In addition, the district court warned Kerr immediately before trial about the dangers\nand difficulties of proceeding pro se. See Appellant App’x at 80, 84-86. Thus, while the\ndistrict court’s Faretta colloquy in this case was not ideal, it was not so deficient as to make\nKerr’s waiver of his Sixth Amendment right unknowing. See, e.g., Torres v. United States, 140\nF.3d 392, 401 (2d Cir. 1998) (explaining that “there is no talismanic procedure to determine\na valid waiver” and that “[w]e need not analyze the district court’s every word, so long as the\nrecord as a whole demonstrates that the defendant knowingly and intelligently waived her\nright to counsel”); United States v. Hurtado, 47 F.3d 577, 583 (2d Cir. 1995) (finding a Faretta\nexamination “adequate” where the district court warned the defendant “of the specific perils\nof representing himself and the advantages of having legal representation,” the defendant\nwas “clearly aware of the penalties he faced if convicted,” and the defendant “clearly stated\nthat he would prefer to proceed pro se”).\n\n\t 18\n\t\n\f11‐5462‐cr(L)\t\nUnited\tStates\tv.\tKerr\t \t \t\n\n28. Alternatively, he argues that if the court upped Wells to full counsel for the remainder of\n\nthe proceeding, then it should have appointed new counsel to assist Kerr with his motion to\n\nwithdraw his plea because of Wells’s “actual conflict” with respect to that motion. See id. at\n\n28-41.\n\n We note that the district court did not state explicitly that Wells returned to standby\n\nstatus following the entry of the plea. Despite any possible confusion, several reasons\n\nsupport our conclusion that the district court elevated Wells to full counsel only for\n\npurposes of the plea, and that Kerr thereafter resumed his self-representation.\n\n Although the district court told Kerr at the plea hearing that it was “going to at this\n\npoint accept the fact that Mr. Wells is your attorney,” Appellant App’x at 98, it implied after\n\naccepting the plea that participation in an on-going relationship was optional, informing\n\nKerr that the Probation Department would interview him and that “Wells can be there if\n\nyou like, that’s up to you and him,” id. at 117 (emphasis added). The district court’s\n\nobservation that Wells was entitled to opt out of accompanying Kerr for such an interview,\n\nrather than having an obligation to attend, was a clear indication that the court viewed Wells,\n\nsubsequent to the entry of Kerr’s guilty plea, as having completed his service as counsel and\n\nreturned to the status of standby counsel. See, e.g., Gonzalez v. United States, 722 F.3d 118,\n\n134-35 (2d Cir. 2013) (noting, among the ways in which Gonzales’s attorney’s “performance\n\nwas deficient with regard to sentencing,” that counsel “did not accompany Gonzalez when\n\nGonzalez was interviewed by the Probation Department”). In addition, there is no\n\nindication that Kerr waived his right to self-representation during the post-plea period\n\nbecause during that time he made numerous pro se filings, refused to allow Wells to speak on\n\n\n\t 19\n\t\n\f11‐5462‐cr(L)\t\nUnited\tStates\tv.\tKerr\t \t \t\n\nhis behalf at sentencing, and submitted a post-judgment letter reiterating that Wells was\n\n“standby counsel.” Cf. United States v. Barnes, 693 F.3d 261, 271 (2d Cir. 2012) (noting that\n\n“even after the right to proceed pro se has been clearly and unequivocally asserted, the right\n\nmay be waived through conduct indicating that one is vacillating on the issue or has\n\nabandoned one’s request altogether” (internal quotation marks omitted)). The district court\n\nalso made clear its view that Kerr continued to represent himself by accepting and ruling on\n\nhis numerous pro se submissions. Tellingly, some of these filings requested the assignment of\n\nnew counsel, which the court denied without stating or otherwise indicating that Wells\n\nremained Kerr’s attorney. Finally, although Wells submitted a sentencing memorandum and\n\nappeared with Kerr at sentencing, it is routine, and certainly not unusual, for standby counsel\n\nto perform such essential tasks. See, e.g., United States v. Schmidt, 105 F.3d 82, 90 (2d Cir.\n\n1997) (standby counsel not elevated to full counsel when he “examined and cross-examined\n\nwitness, and gave the defense summation”). We therefore conclude that Kerr continued\n\nrepresenting himself after the entry of his plea and address only the first of Kerr’s alternative\n\nSixth Amendment arguments—that the district court deprived him of his right to counsel\n\nwhen it did not appoint an attorney to assist him with his second motion to withdraw his\n\nplea.\n\n This inquiry is complicated by the fact that Kerr’s post-plea request for counsel came\n\nafter he waived his right to counsel before trial. While it is undisputed that the Sixth\n\nAmendment protects a criminal defendant’s right to the assistance of counsel “‘at all critical\n\nstages of the criminal process,’” Marshall v. Rodgers, __ U.S. __, 133 S. Ct. 1446, 1449 (2013)\n\n(quoting Iowa v. Tovar, 541 U.S. 77, 80-81 (2004)), it is also well settled “that a defendant . . .\n\n\n\t 20\n\t\n\f11‐5462‐cr(L)\t\nUnited\tStates\tv.\tKerr\t \t \t\n\nhas the right to ‘proceed without counsel when he voluntarily and intelligently elects to do\n\nso,’” Marshall, 133 S. Ct. at 1449 (quoting Faretta, 422 U.S. at 807); see also Forbes v. United\n\nStates, 574 F.3d 101, 106 (2d Cir. 2009) (“A motion to withdraw a guilty plea is a critical stage\n\nof a criminal proceeding . . . .”); see generally United States v. Davis, 239 F.3d 283, 287 (2d Cir.\n\n2001) (a defendant who wishes to withdraw his plea of guilty “may waive his . . . right to\n\ncounsel . . . and proceed pro se”). To resolve the tension that can exist between these two\n\nprinciples when a defendant who elected to proceed pro se later demands an attorney, there is\n\nbroad consensus that, once waived, the right to counsel is no longer unqualified. See United\n\nStates v. Thompson, 587 F.3d 1165, 1175 (9th Cir. 2009); United States v. Leveto, 540 F.3d 200,\n\n207 (3d Cir. 2008); United States v. Proctor, 166 F.3d 396, 403 & n.8 (1st Cir. 1999); United\n\nStates v. Reddeck, 22 F.3d 1504, 1510-11 (10th Cir. 1994); United States v. Taylor, 933 F.2d 307,\n\n311 (5th Cir. 1991); United States v. West, 877 F.2d 281, 286 (4th Cir. 1989); United States v.\n\nSolina, 733 F.2d 1208, 1211-12 (7th Cir. 1984); see also United States v. Brasch, 205 F.3d 1325\n\n(2d Cir. 1999) (table) (unpublished decision).\n\n Although we have not definitively spoken on this precise issue, we have held that a\n\ndefendant’s right to represent himself in the first place is not absolute. See Barnes, 693 F.3d\n\nat 271-72. Among other qualifications placed on the exercise of that right, we have required\n\nthat the request to proceed pro se be “‘unambiguous and unequivocal’” so as to “‘inhibit[] any\n\ndeliberate plot to manipulate the court by alternatively requesting, then waiving counsel.’”\n\nId. at 271 (quoting Williams v. Bartlett, 44 F.3d 95, 100-01 (2d Cir. 1994)). In addition, the\n\nrequest may be denied if the district court finds it to be “obstructionist” or “manipulative or\n\nabusive in some other way.” Id. (internal quotation marks omitted). These concerns are\n\n\n\t 21\n\t\n\f11‐5462‐cr(L)\t\nUnited\tStates\tv.\tKerr\t \t \t\n\nequally applicable to a situation in which a defendant, having invoked his right to proceed pro\n\nse, later seeks the reappointment of counsel. Accordingly, we hold, in agreement with our\n\nsister Circuits that have considered the issue, that once a defendant voluntarily and\n\nintelligently waives his right to counsel and elects to proceed pro se, the decision whether to\n\ngrant or deny his “post-waiver request for counsel is well within the discretion of the district\n\ncourt.” Leveto, 540 F.3d at 207 (citing cases).\n\n Given the critical role that access to professional legal representation plays in our\n\ncriminal justice system, a district court’s discretion to deny post-waiver requests for counsel\n\nis necessarily circumscribed. Thus, it is manifestly improper for a court to deny such a\n\nrequest on purely punitive grounds. See Menefield v. Borg, 881 F.2d 696, 700 (9th Cir. 1989)\n\n(“We are certainly unwilling to deny counsel because of some conception that the\n\ndefendant’s initial decision to exercise his Faretta right and represent himself at trial is a\n\nchoice cast in stone.”); see also Taylor, 933 F.2d at 311 (defendant must ordinarily be allowed\n\nto “change his mind about whether he will represent himself”). In addition, a district court’s\n\ndenial of such a request made after trial or before any meaningful trial proceedings have\n\nbegun may be subject to more searching scrutiny than the denial of a request made on the\n\neve (or in the midst) of trial, when assigning new counsel would inevitably disrupt the court’s\n\nschedule and impede the orderly administration of justice. See Leveto, 540 F.3d at 207; Proctor,\n\n166 F.3d at 402; Solina, 733 F.2d at 1211-12; Menefield, 881 F.2d at 700-01. On the other\n\nhand, a motion to withdraw a mid-trial plea of guilty—and to have a new trial—where the\n\ndefendant has elected to plead guilty after hearing the government’s evidence, also portends\n\ninefficiencies, to wit, duplications of effort on the part of the prosecution, the judge, and the\n\n\n\t 22\n\t\n\f11‐5462‐cr(L)\t\nUnited\tStates\tv.\tKerr\t \t \t\n\nwitnesses, and the need for a second set of citizens to serve as jurors. See, e.g., United States v.\n\nSchmidt, 373 F.3d 100, 102-03 (2d Cir. 2004).\n\n A district court “need not countenance abuse of the right to counsel or the right to\n\nwaive it,” Taylor, 933 F.2d at 311, and it is well within the court’s discretion to deny a post-\n\nwaiver motion for new counsel when it is made in an effort to delay or disrupt the\n\nproceedings, see id. (“A defendant is not entitled to choreograph special appearances by\n\ncounsel or repeatedly . . . alternate his position on counsel in order to delay his trial or\n\notherwise obstruct the orderly administration of justice.” (internal quotation marks and\n\ncitation omitted)); Leveto, 540 F.3d at 207 (same); Proctor, 166 F.3d at 402 (same). Although\n\nwe will generally require a district court faced with a post-waiver motion for new counsel to\n\ninquire into the defendant’s reasons for the request and fully explain on the record the\n\ngrounds for its ultimate decision, we will “not insist upon a formal inquiry or colloquy where\n\nthe rationales for the request and decision are clearly apparent on the record.” Leveto, 540\n\nF.3d at 208.\n\n With these principles in mind, we turn to the facts of Kerr’s case and find that the\n\ndistrict court, having properly denied Kerr’s first pro se motion to withdraw his plea, did not\n\nabuse its discretion when it refused his post-waiver request for new counsel to help him file\n\na second.7 Acting pro se, Kerr filed his first motion to withdraw his plea days after it was\n\nentered, asserting only that he wanted “the jury [to] find [him] guilty or not guilty.”\n\n\n\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\n\t\n7As noted above, Kerr does not challenge on appeal the validity of his initial pretrial waiver\nof his right to counsel. We therefore assume for purposes of this analysis that it was\nknowingly and voluntarily made.\n\n\t 23\n\t\n\f11‐5462‐cr(L)\t\nUnited\tStates\tv.\tKerr\t \t \t\n\nAppellant App’x at 173. As the district court correctly determined in its April 26, 2010 order\n\ndenying the motion, this does not constitute a valid ground for withdrawal. See Fed. R.\n\nCrim. P. 11(d)(2)(B) (defendant may withdraw his plea before sentencing if he “can show a\n\nfair and just reason”); United States v. Gonzalez, 970 F.2d 1095, 1100 (2d Cir. 1992)\n\n(defendant’s “change of heart” not a “sufficient reason to permit withdrawal of a plea”). In\n\naddition, a careful review of the plea colloquy clearly indicates that the district court\n\ncomplied with the requirements of Rule 11 and fully ensured that Kerr’s plea was knowing,\n\nvoluntary, and supported by a factual basis. See Fed. R. Crim. P. 11(b). The district court\n\ntherefore properly denied Kerr’s first withdrawal motion. See Gonzalez, 970 F.2d at 1100.\n\n Thus, when, in mid-May 2010, Kerr filed his post-waiver motion for the appointment\n\nof new counsel, the district court was confronted with the following facts: (1) Kerr\n\neffectively fired three attorneys before electing to proceed pro se at trial with a fourth as\n\nstandby counsel; (2) he pled guilty with the assistance of counsel midway through trial and\n\nthen resumed acting as his own attorney days later when he filed his first meritless pro se\n\nmotion to withdraw his plea; and (3) less than one month after the denial of that motion,\n\nKerr moved for the appointment of a fifth attorney to assist him with a second motion to\n\nwithdraw his plea. Considering these facts, we have little trouble concluding that the district\n\ncourt acted within its discretion when it denied the request. While a first motion to\n\nwithdraw a plea is a “critical stage of the proceeding,” see Forbes, 574 F.3d at 106, successive\n\nmotions seeking the same relief do not rise to that level. A defendant has no right to\n\nwhipsaw the district court and delay the proceedings by continually alternating his position\n\non counsel, especially when his post-waiver request for counsel arises in connection with a\n\n\n\t 24\n\t\n\f11‐5462‐cr(L)\t\nUnited\tStates\tv.\tKerr\t \t \t\n\nmotion the court has already denied. See Taylor, 933 F.2d at 311; cf. Barnes, 693 F.3d at 271.\n\nMoreover, although it would have been preferable for the district court to explain its reasons\n\nfor denying the request, see Leveto, 540 F.3d at 207-08, we find no abuse of discretion in this\n\ninstance because the reasons for the court’s decision—Kerr’s alternating positions with\n\nrespect to representation and his attempt to delay the proceedings—are “clearly apparent on\n\nthe record,” id. at 208.\n\nIII. Sentencing Issues\n\n Kerr challenges the procedural reasonableness of his sentence on three grounds,\n\narguing that the district court: (1) improperly held him accountable for the combined weight\n\nof all 7,000 MDMA pills because he did not know about the 3,000 pills hidden in his\n\nvehicle’s rear interior paneling; (2) failed to find him eligible for a two-level minor role\n\nadjustment pursuant to U.S.S.G. § 3B1.2; and (3) did not articulate an adequate basis for its\n\nsentence. We review sentences for procedural and substantive reasonableness using a\n\n“deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007).\n\nProcedural error occurs when, for example, the district court improperly calculates the\n\napplicable Guidelines range, fails to consider the sentencing factors articulated in 18 U.S.C.\n\n§ 3553(a), or neglects to explain the reasons for its chosen sentence. See United States v.\n\nCavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc).\n\n Contrary to Kerr’s first argument, the district court was not required to find that he\n\n“knowingly” possessed all 7,000 MDMA pills before holding him accountable for them all.\n\nWe rejected an identical challenge in United States v. de Velasquez, where a defendant\n\nconvicted of the importation of heroin argued that because she had been unaware of the\n\n\n\t 25\n\t\n\f11‐5462‐cr(L)\t\nUnited\tStates\tv.\tKerr\t \t \t\n\nheroin secreted in her shoes, she could not be held accountable for that amount. 28 F.3d 2,\n\n4-6 (2d Cir. 1994). As we stated in that case, “[t]here is no requirement under the Guidelines\n\nthat the defendant know or foresee the total quantity of drugs in his possession to be\n\nsentenced for the full amount.” Id. at 5; see also U.S.S.G. § 1B1.3 cmt. n.2 (2010) (explaining\n\nthat “the defendant is accountable for all quantities of contraband with which he was directly\n\ninvolved” and that the reasonable foreseeability requirement “does not apply to conduct that\n\nthe defendant personally undertakes”).\n\n Kerr next argues that he was entitled to a minor role adjustment because he “was no\n\nmore than a onetime drug mule.” Appellant Br. at 56. “To the extent that [a defendant]\n\nclaims that one who is simply a courier is automatically entitled to a [U.S.S.G.] § 3B1.2 minor\n\nrole adjustment based on that status, we reject his argument.” United States v. Garcia, 920\n\nF.2d 153, 155 (2d Cir. 1990) (per curiam). Instead, it was Kerr’s burden to establish that his\n\nconduct was minor “as compared to the average participant” in the crime of conviction.\n\nUnited States v. Rahman, 189 F.3d 88, 159 (2d Cir. 1999); see also Garcia, 920 F.2d at 156 (“It is\n\nthe defendant’s burden to establish by a preponderance of the evidence that his level of\n\nculpability entitles him to a minor role reduction.”). This inquiry is highly fact-intensive and,\n\nin cases involving drug couriers, necessarily depends on “such factors as the nature of the\n\ndefendant’s relationship to other participants, the importance of the defendant’s actions to\n\nthe success of the venture, and the defendant’s awareness of the nature and scope of the\n\ncriminal enterprise.” Garcia, 920 F.2d at 155. We have no difficulty concluding that Kerr\n\ndid not meet this burden as he failed to present any evidence or arguments addressing these\n\nfactors.\n\n\n\t 26\n\t\n\f11‐5462‐cr(L)\t\nUnited\tStates\tv.\tKerr\t \t \t\n\n Finally, Kerr maintains that the district court rejected his sentencing arguments\n\nwithout adequate explanation. As we have repeatedly reiterated, “we never have required a\n\nDistrict Court to make specific responses to points argued by counsel in connection with\n\nsentencing.” United States v. Bonilla, 618 F.3d 102, 111 (2d Cir. 2010). Instead, the court is\n\nrequired to “satisfy us only that it has considered the party’s arguments and has articulated a\n\nreasonable basis for exercising its decision-making authority.” Id. (citing Cavera, 550 F.3d at\n\n193). Here, the district court did just that: it “reviewed and considered all the pertinent\n\ninformation including . . . submissions by counsel,” Appellant App’x at 143-44, and\n\nexplained that it found “a sentence at the low end of the Guidelines range . . . fair, just, and\n\nsufficient but not greater than that which is necessary to comply with the goals of\n\nsentencing,” id. at 145. We also note that the district court made clear its desire to further\n\nconsider and likely credit Kerr’s sentencing arguments, but stated that Kerr’s refusal to meet\n\nwith the Probation Department deprived it of the necessary information to do so. Kerr’s\n\nsentence was procedurally sound.\n\nIV. Pro Se Brief\n\n Kerr argues in his pro se brief that the district court improperly denied his motion to\n\nwithdraw his guilty plea and challenges various aspects of his prosecution and trial. See Pro\n\nSe Br. at 9-20. As we concluded above, Kerr’s guilty plea was knowing and voluntary, and\n\nthe district court did not abuse its discretion when it denied his motion to withdraw it.\n\nKerr’s remaining pro se arguments—concerning alleged prosecutorial misconduct, discovery\n\nimproprieties, the denial of his motion to dismiss the indictment, and various trial errors—\n\nare therefore barred by his valid guilty plea. See United States v. Lasaga, 328 F.3d 61, 63 (2d\n\n\n\t 27\n\t\n\f11‐5462‐cr(L)\t\nUnited\tStates\tv.\tKerr\t \t \t\n\nCir. 2003) (“A defendant who pleads guilty unconditionally admits all elements of the formal\n\ncharge and, in the absence of court-approved reservation of issues for appeal, waives all\n\nchallenges to prosecution except those going to the court’s jurisdiction.”).\n\n CONCLUSION\n\n For the foregoing reasons, we affirm the judgment of the district court.\n\n\n\n\n\t 28\n\t\n\f",
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| Second Circuit | Court of Appeals for the Second Circuit | F | USA, Federal |
779,263 | null | 2002-09-12 | false | tcg-new-york-inc-tc-systems-inc-and-teleport-communications-dba | null | null | Tcg New York, Inc., Tc Systems, Inc. And Teleport Communications D/B/A Tcny, Plaintiffs-Appellants-Cross-Appellees v. City of White Plains, Defendant-Appellee-Cross-Appellant | null | null | null | null | null | null | null | null | null | null | null | 49 | Published | null | null | [
"305 F.3d 67"
]
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"opinion_text": "305 F.3d 67\n TCG NEW YORK, INC., TC Systems, Inc. and Teleport Communications d/b/a TCNY, Plaintiffs-Appellants-Cross-Appellees,v.CITY OF WHITE PLAINS, Defendant-Appellee-Cross-Appellant.\n Docket No. 01-7213(L).\n Docket No. 01-7255(XAP).\n United States Court of Appeals, Second Circuit.\n Argued: December 3, 2001.\n Decided: September 12, 2002.\n \n COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Peter D. Keisler, Sidley Austin Brown & Wood (Stephen B. Kinnaird, Sidley Austin Brown & Wood, Robert G. Scott, Jr., and T. Scott Thompson, Cole, Raywid & Braverman, Mark C. Rosenblum, Stephen C. Garavito, and Teresa Marrero, AT & T Corp., Basking Ridge, NJ, on the brief), Washington, DC, for Plaintiffs-Appellants-Cross-Appellees.\n Philip W. Horton, Arnold & Porter, (Anthony Boccanfuso, Arnold & Porter, New York, NY, Robert M. Cooper, Arnold & Porter, on the brief) Washington, DC, for Defendant-Appellee-Cross-Appellant.\n John E. Ingle, Deputy Associate General Counsel (Rodger D. Citron, Counsel, Federal Communications Commission, Charles A. James, Assistant Attorney General, John M. Nannes, Acting Assistant Attorney General, Catherine G. O'Sullivan, and Nancy C. Garrison, Attorneys, United States Department of Justice, Antitrust Division, on the brief) Washington, DC, for Amici Curiae Federal Communications Commission and the United States.\n Michael R. Hepworth, Piper, Marbury, Rudnick & Wolfe LLP (David A. Handzo and Janis C. Kestenbaum, Jenner & Block, LLC, Washington, DC, Thomas F. O'Neil III, Chief Legal Counsel, and V. Nicole Bynum, WorldCom, Inc., Washington, DC, on the brief) New York, N.Y. for Amicus Curiae WorldCom, Inc. in support of TCG.\n Michael D. Hess, Corporation Counsel of the City of New York(Stephen J. McGrath and Bruce Regal, on the brief) New York, NY, for Amicus Curiae City of New York in support of City of White Plains.\n Andrew Brick, Counsel, Albany, NY, for Amicus Curiae New York State Conference of Mayors and Municipal Officials in support of City of White Plains.\n William Malone, Miller & Van Eaton (Nicholas Miller and Matthew C. Ames, Miller & Van Eaton, Henry W. Underhill, General Counsel and Executive Director, and Lani L. Williams, Associate Counsel, International Municipal Lawyers Association, Danielle DeMers, Office of the Town Attorney, Town of Colonie, Newtonville, NY, on the brief) Washington, DC, for Amici Curiae Local Governments in support of City of White Plains.\n Before: WALKER, Chief Judge, NEWMAN and F.I. PARKER, Circuit Judges.\n JOHN M. WALKER, JR., Chief Judge.\n \n \n 1\n Plaintiffs TCG New York, Inc., TC Systems, Inc., and Teleport Communications d/b/a TCNY (collectively, \"TCG\") brought an action against the City of White Plains (the \"City\" or \"White Plains\") alleging that White Plains's franchising ordinance and proposed franchise agreements violated § 253 of the Telecommunications Act of 1996 (\"TCA\"), 47 U.S.C. § 253 (\"§ 253\"), the Fourteenth Amendment, and state law. The District Court for the Southern District of New York (Barrington D. Parker, Jr., then-District Judge) decided the case on stipulated facts and held in part for TCG and in part for the City. Both sides appealed. We affirm in part and reverse in part.\n \n BACKGROUND\n \n 2\n TCG, a provider of telephone and telecommunications services, is a group of wholly-owned subsidiaries of Teleport Communications Group, itself a wholly-owned subsidiary of AT & T Corporation. For purposes of this appeal, TCG can be treated as a unitary entity. In order to provide telecommunications services within White Plains, TCG sought the City's approval to construct telecommunications facilities and place other equipment within the City's public rights-of-way. In particular, TCG sought permission to build new conduits and to run a network of fiber optic cables through both these new conduits and preexisting ones in the City. Although TCG negotiated with the City starting in early 1992, the relevant negotiations are those that took place after December 1, 1997, when the Common Council of the City passed an ordinance providing a process by which telecommunications carriers could gain approval to place equipment in the City's rights-of-way. See White Plains Municipal Code, Telecommunications Franchising and Licensing, Articles 1-3 (the \"Ordinance\").\n \n \n 3\n TCG filed an application for a revocable license in April 1998. Under the City's scheme, revocable licenses govern limited uses of rights-of-way for internal operations of a business, whereas franchises govern uses of rights-of-way on a broader scale to sell or resell telecommunications services to residents of the City. See Ordinance, §§ 1-1-07, 1-1-12, 2-1-02, 2-1-06, and 2-1-07. In June 1998, the City's Corporation Counsel suggested that TCG apply for a franchise, rather than a revocable license, and provided TCG with a copy of a franchise agreement it had reached with one of TCG's competitors. After some negotiations over the terms of a franchise agreement, TCG submitted an application for a franchise in February 1999 and effectively discontinued pursuing a revocable license. In June 1999, TCG filed this lawsuit, alleging that White Plains's Ordinance and the proposed franchise agreement violated its rights under the TCA, the Fourteenth Amendment, and state law. In August 1999, White Plains made a new franchise agreement proposal (the \"August Proposal\"). This case concerns the validity of both the Ordinance and certain provisions in the August Proposal as amended.\n \n \n 4\n Section 253 of the TCA provides, in relevant part:\n \n \n 5\n (a) In general. No State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.\n \n \n 6\n (b) State regulatory authority. Nothing in this section shall affect the ability of a State to impose, on a competitively neutral basis and consistent with [47 U.S.C. § 254], requirements necessary to preserve and advance universal service, protect the public safety and welfare, ensure the continued quality of telecommunications services, and safeguard the rights of consumers.\n \n \n 7\n (c) State and local government authority. Nothing in this section affects the authority of a State or local government to manage the public rights-of-way or to require fair and reasonable compensation from telecommunications providers, on a competitively neutral and nondiscriminatory basis, for use of public rights-of-way on a nondiscriminatory basis, if the compensation required is publicly disclosed by such government.\n \n \n 8\n (d) Preemption. If, after notice and an opportunity for public comment, the Commission determines that a State or local government has permitted or imposed any statute, regulation, or legal requirement that violates subsection (a) or (b) of this section, the Commission shall preempt the enforcement of such statute, regulation, or legal requirement to the extent necessary to correct such violation or inconsistency.\n \n \n 9\n 47 U.S.C. § 253.\n \n \n 10\n The Ordinance forbids any telecommunications provider from using the rights-of-way of the City without obtaining a franchise or revocable license from the Common Council and that incorporates the requirements of the Ordinance. See Ordinance, §§ 2-1-01, 2-1-03. Applications for franchises are required to contain numerous disclosures. Some of these disclosures, which relate to basic management of the rights-of-way, are not disputed. See Ordinance, § 2-3-02(i), (iii), (iv), (v), and (viii).\n \n \n 11\n Disclosures required by the Ordinance that are challenged in this action include a description of the telecommunications services that the franchisee seeks to provide; the proposed financing plans for constructing and operating the applicant's telecommunications system; and a description of the \"legal, financial, technical and other appropriate qualifications of the applicant.\" Id. at (ii), (vi), and (vii). In addition to these disclosures, the Ordinance requires that franchise agreements contain terms that specify what telecommunication services are to be offered, require the franchisee to maintain accurate records, and grant the City a right to inspect records and facilities. See Ordinance, § 2.9.01(ii), (viii), and (vi).\n \n \n 12\n The Ordinance also contains a variety of substantive requirements. Franchises may not be transferred without the prior consent of the City. See id. at (xii). Franchise agreements must contain any additional provisions the City deems \"necessary or appropriate in furtherance of the public interest.\" Id. at (xvii). Similarly, before approving a franchise, the Common Council may consider the qualifications of an applicant, whether the franchise agreement \"protect[s] the public interest,\" and \"any other public interest factors.\" Ordinance, § 2-7-01(ii), (vi), and (vii).\n \n \n 13\n TCG's attack is not confined to the Ordinance, but also challenges a number of the terms contained in the August Proposal. Of central importance to this appeal is a fee provision that requires TCG to pay five percent of its annual gross revenues from White Plains business to the City. See August Proposal, § 8.1(a). The fee provision also sets a minimum annual fee and requires TCG to provide White Plains with free conduit space for its own use if TCG constructs new conduits. Id. at §§ 8.1(b), 8.2. White Plains also included in its August Proposal a \"most favored vendee\" clause, whereby TCG is required to offer services to the City on terms that are at least as good as the terms TCG offers to any other governmental or non-profit customer in Westchester County. Id. at § 2.7. To ensure that franchise fees would be paid, White Plains also included provisions requiring a secondary guaranty from AT & T, TCG's corporate parent, to pay any fees that TCG defaults on and requiring TCG to maintain financial records at a fixed location available for the City's inspection. Id. at §§ 16, 12.1, 12.2 and 8.5.\n \n \n 14\n Beyond the foregoing financial provisions, the August Proposal precludes TCG from transferring the franchise or ownership of more than twenty percent of TCG without prior consent from White Plains, implementing § 2-9-01(xii) of the Ordinance. See August Proposal, § 14. The August Proposal also requires TCG to seek prior City approval for installations of any part of the network within its boundaries, including installations that are exclusively on private property. Id. at §§ 11.9(d) and 12.3. Finally, the City insisted on provisions that waive TCG's right to challenge provisions of the August Proposal or the Ordinance in court. Id. at §§ 3.1(4) and 13.6.\n \n \n 15\n Although the City has entered into franchise agreements pursuant to the Ordinance with some telecommunications providers, it has not required any formal franchise agreement from the incumbent provider, Verizon, formerly known as Bell Atlantic, NYNEX, and New York Telephone. Moreover, Verizon is not required to pay any franchise fee. While Verizon and its predecessors have provided the City with free conduit space since 1919, the value of the free conduit space has never been estimated.\n \n \n 16\n TCG argued before the district court that the Ordinance and the August Proposal violated § 253 because 1) they \"prohibit or have the effect of prohibiting\" TCG's ability to provide telecommunications services; 2) they amount to prohibited regulation that go beyond management of the public rights-of-way; and 3) they require TCG to pay compensation that is neither \"fair and reasonable\" nor sought \"on a competitively neutral and nondiscriminatory basis.\" Additional claims advanced by TCG under the Constitution and state law were rejected by the district court and are not appealed.\n \n \n 17\n Applying § 253 of the TCA, the district court found that the Ordinance had the effect of prohibiting TCG from providing telecommunications services. However, it concluded that portions of the Ordinance and August Proposal were saved by § 253(c), the statute's savings clause, including the licensing fee. The district court also concluded that substantial portions of the Ordinance and the August Proposal were invalid because they were not confined to managing the public rights-of-way, but rather impermissibly regulated telecommunications. Both sides appealed.\n \n DISCUSSION\n I. Jurisdiction\n \n 18\n The first matter that needs to be considered is whether this court has jurisdiction to resolve TCG's claims. One circuit court has held, in the context of TCA litigation, that if no private cause of action is created by a statute, the federal courts lack subject matter jurisdiction. See TCG Detroit v. City of Dearborn, 206 F.3d 618, 622-24 (6th Cir.2000) (holding that, because the existence of a cause of action goes to subject matter jurisdiction, courts must determine whether an implied cause of action is created sua sponte, and then concluding that § 253 does imply a private cause of action). White Plains does not argue that there is no private cause of action, but if the issue were jurisdictional, we would have to determine it nonetheless. The Sixth Circuit's reliance on Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986), is misguided. Merrell Dow addressed the issue of whether federal question jurisdiction exists when a plaintiff brings a state cause of action that depends on a federal statute that does not create a private cause of action. Id. at 808-19. It did not reach the question of whether the existence of a federal cause of action is jurisdictional. However, the Supreme Court has since squarely decided the issue, holding that \"[t]he question whether a federal statute creates a claim for relief is not jurisdictional.\" Northwest Airlines, Inc. v. County of Kent, 510 U.S. 355, 365, 114 S.Ct. 855, 127 L.Ed.2d 183 (1994). Accordingly, since White Plains does not argue that there is no private cause of action, we need not reach the issue.\n \n \n 19\n We must also consider whether the action should be dismissed under the doctrine of primary jurisdiction. Primary jurisdiction is a judge-made doctrine intended to promote proper relationships between the courts and administrative agencies. Johnson v. Nyack Hosp., 964 F.2d 116, 122 (2d Cir.1992). The doctrine serves two principal interests: \"consistency and uniformity in the regulation of an area which Congress has entrusted to a federal agency; and the resolution of technical questions of facts through the agency's specialized expertise, prior to judicial consideration of the legal claims.\" Golden Hill Paugussett Tribe v. Weicker, 39 F.3d 51, 59 (2d Cir.1994). We have also cited judicial economy as an interest that the primary jurisdiction doctrine can serve. Johnson, 964 F.2d at 123.\n \n \n 20\n As a preliminary matter, we note that the Federal Communications Commission (\"FCC\") filed an amicus brief in this case and, at our request, provided supplemental briefing on both the issue of where jurisdiction to decide this case lies and on the substantive issues to be determined. The FCC did not definitively state an opinion on whether it has concurrent jurisdiction with the district courts over § 253, but it did outline several reasons to think that jurisdiction should be concurrent. For example, the FCC noted that § 253 does not use language, included elsewhere in the TCA, that confers exclusive jurisdiction in the Commission. See, e.g., 47 U.S.C. § 255(f). The absence of such language does not foreclose primary jurisdiction, however, because primary jurisdiction goes to the issue of when, not whether, courts should consider issues. But it does counsel against a conclusion that the FCC should decide these issues first.\n \n \n 21\n Amicus briefs from an agency can serve much of the interest in consistency and uniformity of law that underlies the doctrine of primary jurisdiction, while avoiding some of the delay that sometimes results from dismissing on the ground of primary jurisdiction. See 2 Kenneth Culp Davis & Richard J. Pierce, Jr., Administrative Law Treatise § 14.6, 304 (3d ed.1994). On the substantive issues, the FCC expressed opinions as to some issues but declined to make definitive statements on others, such as the questions of whether a gross revenue fee could be \"fair and reasonable compensation,\" compensation should be limited to a local government's costs, or some other formula is appropriate. While the FCC's response was not exhaustive, it was informative on some issues.\n \n \n 22\n In considering primary jurisdiction, we think it is significant that the parties in this case stipulated to the facts. Although we acknowledge that an agency's role in \"marshaling [the facts] into a meaningful pattern\", Fed. Mar. Bd. v. Isbrandtsen Co., 356 U.S. 481, 498, 78 S.Ct. 851, 2 L.Ed.2d 926 (1958), does cover some cases where the underlying facts are not in dispute, we also believe that where the facts are undisputed, it will rarely be appropriate to dismiss on the basis of primary jurisdiction. In addition, disputes over whether a local ordinance violates § 253 will often be factually straightforward. The difficult questions in this area are normally the legal questions, which means that the important concern for determining issues of primary jurisdiction is consistency and uniformity in ... regulation.\" Considering the \"relatively narrow scope of the doctrine of primary jurisdiction,\" Goya Foods, Inc. v. Tropicana Prods., 846 F.2d 848, 851 (2d Cir.1988), the fact that all of the issues here are questions of law, and having received the FCC's views on some of the issues, we decline to dismiss on the basis of primary jurisdiction.\n \n II. Standard of Review\n \n 23\n Because, as we have noted, the parties stipulated to all facts, the district court's conclusions are exclusively conclusions of law that are reviewed de novo. See, e.g., Gen. Elec. Co. v. Comm'r, 245 F.3d 149, 154 (2d Cir.2001). The parties disagree over whether the court should defer to the judgments of the FCC under Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). TCG, supported by the federal government's amicus brief, argues that deference is required because the FCC has authority to administer the entirety of Chapter 5 of Title 47 (the Wire or Radio Communications chapter), except as specific provisions of the chapter provide. See 47 U.S.C. § 151 (\"there is created a commission to be known as the `Federal Communications Commission', which shall be constituted as hereinafter provided, and which shall execute and enforce the provisions of this chapter.\"); 47 U.S.C. § 201(b) (\"The Commission may prescribe such rules and regulations as may be necessary in the public interest to carry out the provisions of this chapter.\").\n \n \n 24\n White Plains primarily argues that deference is inappropriate because § 253(d), by omitting reference to § 253(c), removed disputes involving § 253(c) from the FCC's jurisdiction. § 253(d) provides that:\n \n \n 25\n [i]f, after notice and an opportunity for public comment, the [FCC] determines that a State or local government has permitted or imposed any statute, regulation, or legal requirement that violates subsection (a) or (b) of this section, the [FCC] shall preempt the enforcement of such statute, regulation, or legal requirement to the extent necessary to correct such violation or inconsistency.\n \n \n 26\n 47 U.S.C. § 253(d).\n \n \n 27\n White Plains argues that the legislative history of subsection (d) establishes that it was intended to deprive the FCC of jurisdiction over issues involving the interpretation of subsection (c). A prior version of subsection (d) that required the FCC to preempt any local provisions that violated § 253 was defeated and replaced by the current provision. Several circumstances, however, make it difficult to accept White Plains's argument. First, White Plains argues elsewhere that subsection (e) is a savings clause that creates no independent restrictions but rather permits certain restrictions that would otherwise have been prohibited by subsection (a). Although this argument is not necessarily inconsistent with White Plains's jurisdictional argument, the plain language of the text which allows the FCC to preempt provisions inconsistent with subsection (a) strongly implies that the FCC has the ability to interpret subsection (e) to determine whether provisions are protected from preemption. Second, the provisions of § 253(d) are mandatory: the FCC \"shall preempt\" local statutes to remedy violations of § 253(a) or (b). In light of the FCC's general regulatory authority, the inclusion of a mandatory regulatory role does not logically foreclose FCC action in the areas where it is not mandatory. Third, because § 253(c) provides a defense to alleged violations of § 253(a) or (b), if § 253(d) were read to preclude FCC consideration of disputes involving the interpretation of § 253(c), it would create a procedural oddity where the appropriate forum would be determined by the defendant's answer, not the complaint. It is true that the well-pleaded complaint rule is a matter of statutory construction, not a constitutional requirement for jurisdiction. Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 53 L.Ed. 126 (1908). Thus, Congress could choose to apply a different rule under some circumstances, and indeed courts have recognized some exceptions. See, e.g., Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987) (describing ERISA preemption as so complete that a complaint raising only state-law claims is necessarily federal in nature because of the preemption defense and so may be removed). However, we will not assume that Congress made such a choice here without stronger evidence.\n \n \n 28\n Although the language of § 253(d) supports the conclusion that cases such as this one should not be dismissed under the doctrine of primary jurisdiction, it does not support the conclusion that no deference is owed to the FCC. Consequently, the FCC's decisions interpreting the scope of § 253(c) merit some deference. See Olmstead v. Zimring, 527 U.S. 581, 598, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999) (agency views entitled to be consulted for helpful guidance even if not Chevron deference); Reno v. Koray, 515 U.S. 50, 61, 115 S.Ct. 2021, 132 L.Ed.2d 46 (1995) (agency guideline, not subject to rigors of Administrative Procedure Act, entitled to \"some deference\").\n \n \n 29\n White Plains also argues that under Chevron, the statute is sufficiently clear that there is no basis for deference and that the relevant FCC decisions do not control this case. See Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778. Although we do not reach the issue of whether the statute is sufficiently clear to eliminate the need for deference, we agree that the relevant FCC decisions are not controlling.\n \n \n 30\n III. Whether White Plains is Prohibiting or Effectively Prohibiting Telecommunications Services\n \n \n 31\n Section 253(a) specifies that \"[n]o State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.\" 47 U.S.C. § 253(a). Courts have held that a prohibition does not need to be complete or \"insurmountable\" to run afoul of § 253(a). See, e.g., RT Communications, Inc. v. FCC, 201 F.3d 1264, 1268 (10th Cir.2000). Additionally, the FCC has stated that, in determining whether an ordinance has the effect of prohibiting the provision of telecommunications services, it \"consider[s] whether the ordinance materially inhibits or limits the ability of any competitor or potential competitor to compete in a fair and balanced legal and regulatory environment.\" Cal. Payphone Ass'n, 12 F.C.C.R. 14191, 1997 WL 400726, at ¶ 31 (1997). We agree with these precedents.\n \n \n 32\n Certain portions of White Plains's Ordinance clearly have the effect of prohibiting TCG from providing telecommunications service. In particular, the provision that gives the Common Council the right to reject any application based on any \"public interest factors ... that are deemed pertinent by the City\" amounts to a right to prohibit providing telecommunications services, albeit one that can be waived by the City. See Ordinance, § 2.7-01(vii). Similarly, the extensive delays in processing TCG's request for a franchise have prohibited TCG from providing service for the duration of the delays. In light of the obstacles that the Ordinance poses to TCG's ability to compete in White Plains on a fair basis, we conclude that the Ordinance violates § 253(a).\n \n \n 33\n While we conclude that the Ordinance as a whole violates § 253(a), we must nevertheless analyze whether portions of the Ordinance and of the August Proposal are saved by § 253(c). This analysis is required because applying § 253(c) to the Ordinance as a whole without considering individual provisions could result in an improper infringement of the City's legitimate interests in regulating the uses of the public rights-of-way. Conversely, applying § 253(a) to individual provisions without considering the Ordinance as a whole would neglect the possibility that a town could effectively prohibit telecommunications services through a combination of individually non-objectionable provisions. We note that the district court applied this methodology and neither party objected.\n \n IV. The August Proposal's Gross Revenue Fee\n \n 34\n The most significant provision of the August Proposal is the requirement that TCG pay five percent of its annual gross revenues from White Plains business to the City. See August Proposal, § 8-1(a). Section 253(c) provides:\n \n \n 35\n Nothing in this section affects the authority of a State or local government to manage the public rights-of-way or to require fair and reasonable compensation from telecommunications providers, on a competitively neutral and nondiscriminatory basis, for use of public rights-of-way on a nondiscriminatory basis, if the compensation required is publicly disclosed by such government.\n \n \n 36\n 47 U.S.C. § 253(c). In order for the fee to fall within this savings clause, the fee must constitute \"fair and reasonable compensation\" and must be applied \"on a nondiscriminatory basis.\" We consider these issues separately with respect to the five-percent gross revenue fee White Plains is charging TCG.\n \n \n 37\n A. \"Fair and reasonable compensation\"\n \n \n 38\n The statute does not define the scope of \"fair and reasonable compensation.\" The core issue is whether to be \"fair and reasonable\" such \"compensation\" is limited to cost recovery, as TCG argues, or whether it also extends to a reasonable rent, as White Plains contends.\n \n \n 39\n The statutory language is not dispositive. As ordinarily understood, \"compensation\" often extends to more than costs. Thus, when we discuss wages and salary as \"compensation,\" see, e.g., I.R.C. § 61(a)(1), the term is not limited to costs. Similarly, discussing the payment of rent as \"compensation\" for the use of property does not strain the ordinary meanings of any of the words. And commercial rental agreements commonly use gross revenue fees as part of the price term. However, \"compensation\" is also sometimes used as a synonym for costs. As an example, \"compensatory\" damages in tort are designed to precisely offset the costs, both financial and otherwise, inflicted by the tort. Terms like compensation are flexible, taking on different meanings depending on the contexts in which they are used. Even \"costs,\" a seemingly more concrete term that TCG argues is synonymous with \"compensation\" in this context, can refer either to the actual out-of-pocket expenses incurred or more broadly to the costs of capital and the \"opportunity cost\" of forgone alternative uses of resources. See Verizon Communications Inc. v. FCC, ___ U.S. ___, ___ n. 17, 122 S.Ct. 1646, 1666 n. 17, 152 L.Ed.2d 701 (2002). Thus, although Congress's choice of the term \"compensation\" may suggest that gross revenue fees are permissible, this hardly decides the issue.\n \n \n 40\n The two other circuits that have addressed the question have split. The Sixth Circuit has upheld a four-percent gross revenue fee. TCG Detroit v. City of Dearborn, 206 F.3d 618, 624-25 (6th Cir.2000). The court employed a \"totality of the circumstances\" examination and concluded that the fee was \"fair and reasonable\" in light of the amount of use contemplated, the amount other providers were willing to pay, and the fact that TCG had agreed in prior negotiations to an almost identical fee. Id. at 625. The court also noted that § 253's \"fair and reasonable\" compensation requirement is different from the Pole Attachment Act's requirement that rates be \"just and reasonable\", 47 U.S.C. § 224, which is defined in terms of recovery of additional costs, and that \"compensation\" is different from costs. Id. at 625.\n \n \n 41\n Conversely, the Ninth Circuit declared in passing that \"non-cost-based fees\" are \"objectionable,\" but only after concluding that other, non-severable aspects of the local ordinances at issue required preemption. City of Auburn v. Qwest Corp., 260 F.3d 1160, 1179 & n. 19 (9th Cir.2001), cert. denied, 122 S.Ct. 809 (2002). Thus, the Ninth Circuit's statement about \"non-cost-based fees\" could be described as dicta.\n \n \n 42\n TCG premises its argument that \"fair and reasonable compensation\" should be limited to costs and should exclude gross revenue fees on a collection of since-repudiated dormant Commerce Clause cases. See, e.g., Atl. & Pac. Tel. Co. v. City of Philadelphia, 190 U.S. 160, 162, 23 S.Ct. 817, 47 L.Ed. 995 (1903). TCG argues that in those cases the Supreme Court described reasonable compensation as limited to the recovery of costs, and that, despite the subsequent overruling of that line of cases, Congress should be assumed to have intended the same meaning of \"reasonable.\" The dormant Commerce Clause cases at issue, which dealt with restrictions on the ability of states to tax interstate commerce, were overruled in Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 277, 288-89, 97 S.Ct. 1076, 51 L.Ed.2d 326 (1977). TCG relies on Northwest Airlines, Inc. v. County of Kent, 510 U.S. 355, 114 S.Ct. 855, 127 L.Ed.2d 183 (1994), for the principle that Commerce Clause precedent that has been overruled nevertheless can be used to determine whether a fee is reasonable. Northwest Airlines concerned the Anti Head Tax Act, 49 U.S.C.App. § 1513, which forbids certain taxes in the operation of airports, but allows \"reasonable rental charges, landing fees, and other service charges.\" 49 U.S.C. § 4011b(e) (formerly 49 U.S.C.App. § 1513(b)); see Northwest Airlines, 510 U.S. at 363, 114 S.Ct. 855. In construing \"reasonable rental charges,\" the Supreme Court relied on superseded dormant Commerce Clause precedent concerning what airport fees were reasonable. Id. at 367-69, 114 S.Ct. 855. However, the circumstances of Northwest Airlines were dramatically different from the present case. Northwest Airlines interpreted the statute, which had been enacted to displace prior caselaw, see id. at 368, 114 S.Ct. 855, in light of the way that terms were used in the caselaw it displaced. In contrast, TCG asks this court to interpret the 1996 Act in light of the way terms were used in a series of unrelated cases that were overruled by the Supreme Court in 1977. Expecting Congress to be aware of how courts interpreted words in an area of law at the time that a statute was enacted to modify that law is different from assuming that Congress intended words to be interpreted in the same way they were interpreted in unrelated caselaw that had become obsolete nearly twenty years earlier.\n \n \n 43\n Additionally, the policies underlying § 253(c)'s safe harbor for \"fair and reasonable compensation\" are significantly different from the reasons that the dormant Commerce Clause was held to restrict fees to reasonable, cost-based exactions. Section 253(c) requires compensation to be reasonable essentially to prevent monopolistic pricing by towns. Without access to local government rights-of-way, provision of telecommunications service using land lines is generally infeasible, creating the danger that local governments will exact artificially high rates. In contrast, the dormant Commerce Clause cases relied on by TCG required that rates be reasonable to ensure that they were not disguised taxes. Section 253 is not targeted at disguised taxes.\n \n \n 44\n However, because the issues of whether \"reasonable compensation\" can include gross revenue fees and, if so, what percentage of gross revenue may be exacted are difficult and not necessary to resolve this appeal in light of the discussion which follows, we decline to reach the issue.\n \n \n 45\n B. \"Competitively neutral and nondiscriminatory\"\n \n \n 46\n White Plains does not require Verizon to comply with the terms of the Ordinance and has not required Verizon to enter into a franchise agreement comparable to the August Proposal. The City argues, and the district court agreed, that the differential treatment is \"competitively neutral and nondiscriminatory,\" as § 253(c) requires, because of the long history of services provided to White Plains by Verizon and because Verizon provides certain in-kind compensations to the City such as free conduit space. We disagree.\n \n \n 47\n Contrary to the district court's holding, the disparate treatment is plainly not \"competitively neutral and nondiscriminatory.\" From an economics perspective, whether fees are competitively neutral should be determined based on future costs of providing services, not sunk costs incurred in the past, because that is the playing field on which the competition will take place. Cf. Verizon Communications Inc. v. FCC, ___ U.S. ___, ___-___, 122 S.Ct. 1646, 1653-54, 152 L.Ed.2d 701 (2002) (upholding FCC regulation linking \"just and reasonable\" rates only to forward-looking costs). Verizon's costs in providing conduits to White Plains are sunk costs; they do not affect the cost to Verizon of offering services in the future. Furthermore, Verizon was compensated for those sunk costs by receiving a monopoly on phone service within White Plains under the old system and would normally be expected to have included those costs in its rate base. If TCG is required to pay five percent of its gross revenues to the City and Verizon is not, competitive neutrality is undermined. Verizon will have the advantage of choosing to either undercut TCG's prices or to improve its profit margin relative to TCG's profit margin. Allowing White Plains to strengthen the competitive position of the incumbent service provider would run directly contrary to the pro-competitive goals of the TCA. See Preamble, 104 P.L. 104, 110 Stat. 56.\n \n \n 48\n The Sixth Circuit reached a different conclusion in TCG Detroit v. City of Dearborn, 206 F.3d 618, 624-25 (6th Cir.2000). The TCG Detroit situation is not precisely analogous to the White Plains plan, however, because there the City of Dearborn attempted to require Ameritech, the incumbent service provider, to pay the same fee that it charged TCG. The attempt to charge Ameritech a franchise fee was invalidated on Michigan state law grounds. Id. at 625-26. In contrast, here White Plains has not attempted to charge Verizon the fee that it seeks to charge TCG. Thus, to the extent that TCG Detroit turned on Dearborn's attempts to treat both service providers equivalently, it is simply not applicable to this case. But because the Sixth Circuit allowed Dear-born to give the advantage to the incumbent after those attempts failed, we think TCG Detroit was wrongly decided.\n \n \n 49\n The Sixth Circuit concluded that because Dearborn sought to treat TCG and Ameritech equally but was precluded from doing so by state law, it did not violate the provisions of § 253. However, § 253 does not limit municipalities to charging fees that are \"competitively neutral\" to the extent permitted by state law; it forbids fees that are not competitively neutral, period, without regard to the municipality's intent. Where state laws and local ordinances combine to create a fee that is not \"competitively neutral,\" § 253 preempts the local ordinance, even if it would have been permissible absent the state law. Moreover, the Sixth Circuit's statement that TCG failed to show that Ameritech was undercutting its competitors and creating a barrier to entry misses the point that fees that exempt one competitor are inherently not \"competitively neutral,\" regardless of how that competitor uses its resulting market advantage.\n \n \n 50\n The requirements of § 253 are not inflexible, however. The statute does not require precise parity of treatment. An earlier draft of the bill that ultimately became § 253 included a provision that would have forbidden local governments from imposing any fee that \"distinguishes between or among providers of telecommunications services.\" H.R. 1555, 104th Cong. § 243(e) (1995). Both the elimination of that provision and the language of the enacted version of § 253 strongly support the conclusion that franchise fees need not be equal. Municipalities can take into account different costs incurred by different uses of the rights-of-way. They can also consider the scale of the use of rights-of-way. They also retain the flexibility to adopt mutually beneficial agreements for in-kind compensation. Neutrally applied most-favored-vendee provisions that require service providers to offer their best rates to the city or requirements that service providers allow the city free use of conduit space or similar treatment are at least potentially permissible. A city can negotiate different agreements with different service providers; thus, a city could enter into competitively neutral agreements where one service provider would provide the city with below-market-rate telecommunications services and another service provider would have to pay a larger franchise fee, provided the effect is a rough parity between competitors.\n \n \n 51\n But a municipality may not, as White Plains sought to do, impose a host of compensatory provisions on one service provider without placing any on another. The City tried to exact a variety of forms of compensation from TCG, while not exacting any compensation from Verizon on a forward-looking basis. The only compensation that Verizon has provided White Plains was the use of free conduit space, provided in the past in exchange for a complete monopoly at that time. Verizon has already reaped the benefit of those bargains. Moreover, TCG is required to provide the city with conduit space in conduits it builds. In order for the City to demand fees, most-favored-vendee status, or similar benefits from TCG, it must demand comparable benefits from Verizon, taking into account relevant differences in scale of operations and costs incurred. While municipalities may be flexible, the compensation they exact must be \"competitively neutral and nondiscriminatory.\"\n \n \n 52\n We thus hold that the five-percent gross revenue fee provisions of the August Proposal, at sections 8.1-8.4, 8.6, are not saved by § 253(c) and reverse the district court. The provisions intended to ensure payment of the fee, most notably sections 8.5 and 16 of the August Proposal, which required that financial records be available for examination and that TCG's parent guarantee payment, are rendered moot by the invalidation of the fee itself.\n \n \n 53\n We affirm the district court's invalidation of the most-favored-vendee clause. See August Proposal, § 2.7. Although we take no position on whether section 2.7 should be construed as impermissible rate regulation, as the district court concluded, or as a form of compensation for use of the rights-of-way, in which case it is not competitively neutral because Verizon is not required to provide any compensation to the City, we conclude that the provision violates § 253.\n \n V. Non-fee Related Provisions\n \n 54\n We next turn to the aspects of the City's plan that do not involve fees. Here, the question is whether the regulations are designed to \"manage the public rights-of-way,\" as permitted by § 253(c), or impermissibly go further. § 253(c). We first consider the portions of the Ordinance invalidated by the district court. Two provisions that required TCG to maintain records and to allow the City to inspect its records and facilities were narrowed by the district court to apply only to the extent necessary to manage the rights-of-way. See Ordinance, §§ 2-9-01(vi) and (viii). White Plains does not appeal the limiting construction placed on these provisions.\n \n \n 55\n The district court struck down a variety of provisions in the Ordinance as not directly related to the management of the rights-of-way. Thus, the district court invalidated subsections 2-3-02(ii), (vi), and (vii) of the Ordinance, which required disclosures to be made about the telecommunications services to be provided, the sources of financing for the telecommunications services, and the qualifications to receive a franchise. Similarly, the district court struck down subsections 2-7-01(ii) and 2-9-01(ii), both of which required consideration of the information required by subsections 2-3-02(ii), (vi), and (vii). Subsections 2-7-01(vi), (vii), and 2-9-01(xvii) were invalidated for allowing and requiring the White Plains Common Council to consider other factors related to the public interest in deciding whether to grant a franchise.\n \n \n 56\n All of the Ordinance sections struck by the district court were properly invalidated. The disclosures mandated by the invalidated provisions were relevant only for regulating telecommunications, which § 253 does not permit White Plains to do, not for regulating use of the rights-of-way, which White Plains may do. See City of Auburn, 260 F.3d at 1177-78. Because the required information was not relevant to the permissible franchising process, subsections 2-7-01(ii) and 2-9-01(ii) likewise fall. Finally, the Ordinance's provisions allowing the White Plains Common Council to consider any factor deemed to be in the public interest provide precisely the sort of discretion to prohibit telecommunications services that § 253 preempts. See City of Auburn, 260 F.3d at 1179.\n \n \n 57\n The district court's invalidation of various portions of the August Proposal was similarly correct. Sections 11.9(d) and 12.3 require prior approval of the locations of TCG's network. Although a similar requirement might be permissible if it were limited to public land, the sections as written restrict TCG's ability to develop a network even on private property and are, therefore, invalid. The district court also invalidated the record-keeping provisions of Sections 12.1 and 12.2; White Plains does not challenge this decision of the district court.\n \n \n 58\n The district court also correctly invalidated sections 3.1(4) and 13.6 of the August Proposal, both of which purport to waive TCG's right to challenge illegal provisions of the franchise in court. Requiring telecommunications providers to agree not to challenge the provisions of the franchise in court is a transparent attempt to circumvent § 253. The TCA does not create a collection of default rules that municipalities and service providers can contract around. The provision would have been completely unenforceable had TCG agreed to it, but it was improper for White Plains to even propose it.\n \n \n 59\n Finally, we turn to the restrictions the Ordinance and August Proposal place on transferring a franchise. See Ordinance, § 2-9-01(xii); August Proposal, § 14. The district court upheld the Ordinance's provision and by extension the August Proposal's implementation of this restriction, but we reverse. The Ninth Circuit has invalidated similar provisions, holding that they went \"far beyond\" regulating the use of rights-of-way. City of Auburn, 260 F.3d 1160, 1178 and n. 15. A more limited franchise transfer provision could be reasonably related to regulating the use of the rights-of-way. For example, a transfer limitation, if applied neutrally to all franchisees, might permit rejection of a transferee on the basis of insufficient assurance of ability to pay reasonably imposed fees for use of rights-of-way. However, because White Plains cannot legitimately turn away \"any\" provider of telecommunications services, § 253(a), a provision of sweeping breadth whose main purpose is to force each new telecommunications provider to receive White Plains's blessing before offering services, even if its services represent no change from the services offered and burdens imposed by a prior franchisee, is invalid. Because of the unfettered breadth of the provision, it cannot stand.\n \n \n 60\n To summarize, we invalidate as contrary to § 253(a) and not saved by § 253(c) the following provisions of the Ordinance: Sections 2-3-02(ii), (vi), and (vii), 2-7-01(ii), (vi), (vii), and 2-9-01(ii), (xii), and (xvii) and August Proposal Sections 2.7, 3.1(4), 8, 11.9(d), 12.1, 12.2, 12.3, 13.6, and 14. August Proposal Section 16 is rendered moot by the invalidation of the five-percent gross revenue fee.\n \n CONCLUSION\n \n 61\n We affirm in part and reverse in part. Costs are awarded to TCG.\n \n ",
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| Second Circuit | Court of Appeals for the Second Circuit | F | USA, Federal |
245,107 | Bratton, Pickett, Rice | 1958-04-08 | false | preston-a-parkinson-v-the-california-company-a-corporation-and | null | Preston A. Parkinson v. The California Company, a Corporation, and Stanolind Oil & Gas Company, a Corporation | Preston A. PARKINSON, Appellant, v. the CALIFORNIA COMPANY, a Corporation, and Stanolind Oil & Gas Company, a Corporation, Appellees | George L. Barnard, of Albaugh, Bloem, Barnard & Smith, Idaho Falls, Idaho (E. N. Moody, Jackson, Wyo., was with him on the brief), for appellant., John P. Akolt, Denver, Colo. (John P. Akolt, Jr., Robert A. Dick, Denver, Colo., and Wilfrid O’Leary, Cheyenne, Wyo., were with him on the brief), for appel-lee California Co., Albert E. Nelson, Rock Springs, Wyo., (A. G. McClintock, Cheyenne, Wyo., was with him on the brief), for appellee Stanolind Oil & Gas Co. | null | null | null | null | null | null | null | null | null | null | 13 | Published | null | <parties data-order="0" data-type="parties" id="b367-14">
Preston A. PARKINSON, Appellant, v. The CALIFORNIA COMPANY, a Corporation, and Stanolind Oil & Gas Company, a Corporation, Appellees.
</parties><br><docketnumber data-order="1" data-type="docketnumber" id="b367-16">
No. 5677.
</docketnumber><br><court data-order="2" data-type="court" id="b367-17">
United States Court of Appeals Tenth Circuit.
</court><br><decisiondate data-order="3" data-type="decisiondate" id="b367-18">
April 8, 1958.
</decisiondate><br><attorneys data-order="4" data-type="attorneys" id="b368-24">
<span citation-index="1" class="star-pagination" label="266">
*266
</span>
George L. Barnard, of Albaugh, Bloem, Barnard & Smith, Idaho Falls, Idaho (E. N. Moody, Jackson, Wyo., was with him on the brief), for appellant.
</attorneys><br><attorneys data-order="5" data-type="attorneys" id="b368-25">
John P. Akolt, Denver, Colo. (John P. Akolt, Jr., Robert A. Dick, Denver, Colo., and Wilfrid O’Leary, Cheyenne, Wyo., were with him on the brief), for appel-lee California Co.
</attorneys><br><attorneys data-order="6" data-type="attorneys" id="b368-26">
Albert E. Nelson, Rock Springs, Wyo., (A. G. McClintock, Cheyenne, Wyo., was with him on the brief), for appellee Stanolind Oil & Gas Co.
</attorneys><br><p data-order="7" data-type="judges" id="b368-27">
Before BRATTON, Chief Judge, PICKETT, Circuit Judge, and RICE, District Judge.
</p> | [
"255 F.2d 265"
]
| [
{
"author_str": "Pickett",
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"type": "010combined",
"page_count": null,
"download_url": "http://bulk.resource.org/courts.gov/c/F2/255/255.F2d.265.5677_1.html",
"author_id": null,
"opinion_text": "255 F.2d 265\n Preston A. PARKINSON, Appellant,v.The CALIFORNIA COMPANY, a Corporation, and Stanolind Oil &Gas Company, a Corporation, Appellees.\n No. 5677.\n United States Court of Appeals Tenth Circuit.\n April 8, 1958.\n \n George L. Barnard, of Albaugh, Bloem, Barnard & Smith, Idaho Falls, Idaho (E. N. Moody, Jackson, Wyo., was with him on the brief), for appellant.\n John P. Akolt, Denver, Colo. (John P. Akolt, Jr., Robert A. Dick, Denver, Colo., and Wilfrid O'Leary, Cheyenne, Wyo., were with him on the brief), for appellee California Co.\n Albert E. Nelson, Rock Springs, Wyo., (A. G. McClintock, Cheyenne, Wyo., was with him on the brief), for appellee Stanolind Oil & Gas Co.\n Before BRATTON, Chief Judge, PICKETT, Circuit Judge, and RICE, district judge.\n PICKETT, Circuit Judge.\n \n \n 1\n The plaintiffs, as owners of a cafe and bar in the town of Jackson, Wyoming, brought this action against defendants as the manufacturers of liquid property gas, for personal injuries and property damages caused by an explosion. The complaint alleged that the defendants'1 failure to properly odorize certain liquid propane gas at the time of sale and delivery to a purchaser, who in turn sold it to plaintiffs, was negligence and the proximate cause of the explosion. The trial court sustained a motion to dismiss, and judgment was entered for the defendants. Applying the rule that a manufacturer of an article which is inherently dangerous to human safety is liable for injuries to persons beyond the immediate purchaser for foreseeable consequences of negligence, this court held the allegation that defendants failed to odorize the liquid gas was 'sufficient to carry the plaintiff past a motion to dismiss.' Parkinson v. California Co., 10 Cir., 233 F.2d 432, 437. Upon remand the case was tried to the court without a jury, resulting in judgment for the defendants. This appeal is from that judgment.\n \n \n 2\n There is no substantial dispute as to the material facts. In 1948 the California Company entered into a contract with Stanolind, and other producers of oil and gas in the Rangely Field, Rio Blanco County, Colorado, for the construction and operation of a gasoline plant. Under the terms of this agreement, the producers were permitted to take in kind their proportionate shares of liquid petroleum gas. McHade L. P. Gas Company, a Wyoming corporation, purchased Stanolind's share of this product, not exceeding 125,000 gallons per month. McHade, a transportation company, delivered the liquid gas to Teton Gas and Appliance Company,2 also a Wyoming corporation. Teton retailed liquid gas and sold and installed facilities for use of the gas, within its trade territory, which included Jackson, Wyoming.3 The two companies were head-quartered togethered in Rock Springs, Wyoming. They were owned and operated by the same individuals, with the same officers. Barney DeCora, who had considerable experience in the liquid gas business, was President of McHade, Secretary-Treasurer of Teton, and General Manager of both, as well as General Manager of several other corporations owned by the same individuals and engaged in retail distribution of propane gas. He subscribed to trade magazines and read literature concerning his business. He was familiar with the dangers in using the product.\n \n \n 3\n During the years 1952 and 1953 the plaintiff was engaged in remodeling portions of his cafe and bar. Included in this project was the installation of a restaurant type kitchen range, a water heater in the basement of the building, and the necessary equipment for the use of propane gas as fuel. This equipment was purchased from, and installed by Teton. It included a new one thousand gallon liquid gas tank owned by Teton and leased to the plaintiff. Into this tank Teton placed three hundred gallons of liquid propane gas which had been purchased from Stanolind through McHade, and connected it to the appliances. Shortly thereafter the water heater failed to function properly and an employee of Teton came to the premises to determine the cause. Upon entry into the basement of the building, there being no odor of escaping gas, the employee lit a match for the purpose of checking the water heater. An explosion followed immediately, causing the injuries of which plaintiff complains. The court found that Teton was negligent in the installation of the system, which permitted gas to escape, and committed other acts of negligence which caused the explosion. It is conceded here that these findings are supported by substantial evidence.\n \n \n 4\n The liquid propane gas produced by Stanolind was odorless unless an odorizing ingredient were added. The purpose of an odorant is to provide a stench which will give warning of a dangerous condition to those who may come into contact with escaping gas. When McHade accepted delivery of the product in its trucks at the Colorado refinery, delivery tickets were prepared and signed by Stanolind's loader and McHade's truck driver. These tickets showed the amount of liquid propane gas placed in the truck tanks and the quantity and kind of odorant which had been added to it. The court found that the propane in question had been adequately odorized with a proper odorant when delivered to McHade. Clearly this finding is sustained by the evidence, and there was no evidence of lack of odor at any time prior to the delivery of the gas into the tank on plaintiff's premises. The import of this finding is that the defendants were not negligent in marketing a product which was inherently dangerous to human safety.\n \n \n 5\n This finding would ordinarily dispose of the case upon the question presented on the former appeal. However, there has been injected into the case another issue which arose from defendants' evidence and was considered by the trial court. The evidence discloses that when liquid propane gas is placed in new steel tanks or conducted through new steel pipes, a chemical reaction will take place which destroys the type of odorant (isopropyl mercaptan) used by Stanolind. The trial court found that the odor of the gas in question was destroyed by a chemical reaction in the new tank, combined with the presence of a substance known as methanol, negligently left in the tank by Teton after purging the tank,4 and that when the gas escaped into plaintiff's building, it was odorless. The plaintiff contends that in addition to the duty to properly odorize the propane gas, the law imposes a duty upon the defendants to warn McHade upon the delivery of the product that the odor would be destroyed if placed in new steel containers. The essence of plaintiff's contention is that the defendants owed a duty to warn their purchasers of the peculiar characteristics of the product, and how certain methods of handling it, which they might foresee, would make it inherently dangerous, and that this duty was continuous and a failure to fulfill that duty was a proximate cause of the explosion. Relying upon evidence that McHade and Teton knew of the dangerous character of liquid propane gas, that for many years they had operated an extensive business of retailing it and installing hundreds of new facilities for its use,5 and that information concerning the chemical reaction which would take place in new steel tanks destroying the odor was contained in many of the trade publications which were read by or were available to the purchasers, the trial court found that the purchasers knew, or by the exercise of reasonable diligence should have known, that such chemical reaction was likely to occur. In addition Teton knew that it was necessary to purge the new tank before putting liquid propane into it for commercial use. In performing this purging process, it used ten pints of methanol. An expert testified that the method used would leave methanol in the tank which would tend to destroy the odor in the propane. We think this evidence is sufficient to sustain an inference that Teton knew that new steel equipment would destroy the artificial odor in the propane.\n \n \n 6\n McHade and Teton were very substantial dealers in the product, as well as installers of new steel facilities. They had a duty to use a degree of care in proportion to the dangers involved. As distributors of propane gas, and in selling and installing new equipment in which it was used, they were required to exercise a high degree of care to prevent injury from escaping gas. This included a requirement that they and their employees should acquaint themselves with knowledge of the properties of the gas and the proper methods of handling it.6 Gas Service Co. v. Helmers, 8 Cir., 179 F.2d 101; Mattson v. Central Electric & Gas Co., 8 Cir., 174 F.2d 215, certiorari denied 338 U.S. 868, 70 S. Ct. 142, 94 L. Ed. 532, rehearing denied 338 U.S. 896, 70 S. Ct. 238, 94 L. Ed. 551; Skelly Oil Co. v. Holloway, 8 Cir.,171 F.2d 670; Clay v. Butane Gas Corp., 151 Neb. 876, 39 N.W.2d 813; Winkler v. Macon Gas Co., 361 Mo. 1017, 238 S.W.2d 386; Doxstater v. Northwest Cities Gas Co., 65 Idaho 814, 154 P.2d 498. See, also, Miller v. New York Oil Co., 34 Wyo. 272, 243 P. 118. The propane was delivered to McHade, not in containers, but in bulk. It was taken from the refinery and placed in storage tanks belonging to the member corporations. When it was sold, there was no method by which defendants could warn the plaintiff how it should be handled. The gas not being sold in original containers, and as it was not known to whom Teton might sell the same, defendants could only warn the purchaser McHade. McHade and Teton knew of the possible chemical reaction. Warning is required to impart knowledge, and if that knowledge has already been acquired, it is not necessary. 46 Am.Jur., Sales, 804, 816; 65 C.J.S. Negligence 100; 164 A.L.R. 371.\n \n \n 7\n We are satisfied that the peculiar facts of this case do not bring it within the rule that a manufacturer is liable to an ultimate consumer for damages in failing to give adequate warning of the dangerous character of its product. But, if we were to assume that there was such a duty to warn, the finding of the trial court established that the failure to warn was not the proximate but only a remote cause of the injuries. The court stated: '* * * that the proximate cause of the explosion referred to in the Amended Complaint was negligence on the part of Teton Gas and Appliance Company. * * *' The law does not fix liability upon a wrongdoer for all the possible consequences of a wrongful act. Even in cases where dangerous instrumentalities are concerned, responsibility must end somewhere. There is liability only when the wrongful act is a proximate and not a remote cause. Lemos v. Madden, 28 Wyo. 1, 200 P. 791.7 The most that can be said, if a failure to warn is assumed in this case, is that the failure created a condition or an occasion for the explosion, and that there was a mere possibility that the injuries might not have occurred except for Stanolind's nonfeasance.\n \n \n 8\n The controlling substantive law is that of Wyoming. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188. In Lemos v. Madden, supra, 200 P. at page 794, the Supreme Court of Wyoming, in a very comprehensive study of remote and proximate cause, said:\n \n \n 9\n '* * * Of course, if an injury would have happened in any event as a result of the act or omission, no matter what might have intervened, responsibility follows. But if the original wrong furnished only the condition or occasion, then it is the remote and not the proximate cause, notwithstanding the fact that there would have been no loss or injury but for such condition or occasion. * * * There must be a cause connection, and that must be from proximate cause, as that has been defined by the courts, and not from remote cause, to injury. * * * A cause may, in law, be considered a remote cause, notwithstanding the fact that no injury would have occurred, if it had not happened.'\n \n \n 10\n See, also, O'Mally v. Eagen, 43 Wyo. 233, 2 P.2d 1063, 77 A.L.R. 582; Equitable Life Assur. Soc. of United States v. Gratiot, 45 Wyo. 1, 14 P.2d 438, 82 A.L.R 1397; Carney Coal Co. v. Benedict, 21 Wyo. 163, 129 P. 1024.\n \n \n 11\n There is no evidence in this case tending to establish that the plaintiff's injuries would have occurred in the absence of an intervening cause, or that they would not have happened had the warning been given. It is clear that there would not have been an explosion except for the negligence on the part of Teton in installing the equipment, thereby permitting the gas to escape. Except through rank speculation, it could not be said that there was a causal connection, which could be considered a proximate cause, between the failure to give warning to McHade, and the explosion. Generally it has been held that when an injury is brought about by the concurrent negligence of two persons, and when there would have been no injury in the absence of the negligence of either, each act of negligence may be considered a proximate cause, and both persons are answerable. Chandler v. Dugan, 70 Wyo. 439, 251 P.2d 580; Phelps v. Woodward Const. Co., 66 Wyo. 33, 204 P.2d 179. Assuming that Stanolind owed a duty to warn McHade, we cannot say as a matter of law, under the peculiar facts of this case, that there was a causal connection between this failure and the explosion, or that it was the proximate cause thereof. This ordinarily is a question for the jury or the trial court. Phelps v. Woodward Const. Co., supra; O'Mally v. Eagan, supra; Dallason v. Buckmeier, 74 Wyo. 125, 284 P.2d 386. In Hernandez v. Southern Union Gas Co., 209 F.2d 606, 610, we said: 'Proximate cause is an ultimate fact and is usuallly an inference to be drawn by the fact finder from the proven facts'. It is apparent that in this case, the effect of the trial court's finding is that the negligent acts of Teton were the sole proximate cause of the accident, and we cannot say that this finding is clearly erroneous.\n \n \n 12\n Affirmed.\n \n \n \n 1\n The defendants will be referred to herein as 'California Company' and 'Stanolind'\n \n \n 2\n McHade L.P. Gas Company, and Teton Gas and Appliance Company, will be referred to herein as 'McHade' and 'Teton'\n \n \n 3\n Propane is a petroleum gas, compressed to a liquid and usually handled in metal containers under high pressure. It is highly volatile, and when released into the atmosphere, vaporizes instantly, and in certain quantities forms a highly explosive mixture, heavier than air. It is odorless and colorless, and its presence cannot be detected unless there has been added to the liquid propane an adequate odorizing agent which will give a distinctive stench noticeable to persons with an ordinary sense of smell\n \n \n 4\n 'Purging a tank' is a process employed to eliminate moisture and other matters which adversely affect the liquid gas placed in the tank\n \n \n 5\n The testimony of Barney DeCora concerning the number of new installations, was as follows:\n 'Q. And what would you have to say as to the amount of expansion in the line of new installations and things of that nature that you handle? A. Well, I would say since 1946 we have made at least 14 or 1500 new installations.\n 'Q. And through your Teton Gas & Appliance Company, how many new installations have you made? A. I would say about a third of that, about 500. * * *\n 'Q. And to make a new installation, do you always use a new tank and new pipelines? A. Not always new tanks because a lot of times the tanks have been returned from another customer, but we always use new lines.\n 'Q. Have you had occasion to purchase any considerable number of new tanks for the Teton Gas & Appliance Company? A. Yes.\n 'Q. Could you give us any idea of how many new tanks? A. New tanks, I would say between three and four hundred.'\n \n \n 6\n The trial court stated:\n '* * * that if there was any duty to add additonal malodorant because of the use in new facilities and new pipes, that that duty was on the Teton Company and not on Stanolind. So far as the Court is concerned the fact that this gas lost its odor becuase of the chemical reaction occurring in the tank was not a foreseeable consequence so far as the Stanolind Company was concerned, and the fact that the odor fade did occur cannot be attributed to any act of Stanolind. Also, Stanolind was dealing with people here who were in this business who were installing the equipment and installing the lines. * * * They put in an odorant which could cause and enable the presence of gas to be detected, and when that odor is lost through activities of persons to whom Stanolind supplies it, the Court thinks that that fact cannot be attributed to Stanolind and that there is no continuing act of failure on the part of Stanolind that was a contributing cause of this unfortunate explosion.'\n \n \n 7\n In Lemos v. Madden, 200 P. 791, 793, 'proximate cause' was defined as that 'which in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. * * * Proximate cause is probable cause, and remote cause is improbable cause.'\n \n \n ",
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| Tenth Circuit | Court of Appeals for the Tenth Circuit | F | USA, Federal |
365,665 | Ainsworth, Godbold, Per Curiam, Vance | 1979-06-15 | false | arthur-bailey-jr-v-frank-blackburn-warden-louisiana-state-penitentiary | null | Arthur Bailey, Jr. v. Frank Blackburn, Warden, Louisiana State Penitentiary | Arthur BAILEY, Jr., Petitioner-Appellant, v. Frank BLACKBURN, Warden, Louisiana State Penitentiary, Respondent-Appellee | Arthur Bailey, pro se., Wm. J. Guste, Jr., Atty. Gen., Baton Rouge, L i., William E. Wynne, Asst. Dist. Atty., New Orleans, La., for respondent-appellee. | null | null | null | null | null | null | null | null | null | null | 0 | Published | null | <parties data-order="0" data-type="parties" id="b128-18">
Arthur BAILEY, Jr., Petitioner-Appellant, v. Frank BLACKBURN, Warden, Louisiana State Penitentiary, Respondent-Appellee.
</parties><br><docketnumber data-order="1" data-type="docketnumber" id="b128-21">
No. 78-3306
</docketnumber><p data-order="2" data-type="misc" id="AQJ">
Summary Calendar.
<a class="footnote" href="#fn*" id="fn*_ref">
*
</a>
</p><br><court data-order="3" data-type="court" id="b128-22">
United States Court of Appeals, Fifth Circuit.
</court><br><decisiondate data-order="4" data-type="decisiondate" id="b128-24">
June 15, 1979.
</decisiondate><br><attorneys data-order="5" data-type="attorneys" id="b129-8">
<span citation-index="1" class="star-pagination" label="65">
*65
</span>
Arthur Bailey, pro se.
</attorneys><br><attorneys data-order="6" data-type="attorneys" id="b129-9">
Wm. J. Guste, Jr., Atty. Gen., Baton Rouge, L i., William E. Wynne, Asst. Dist. Atty., New Orleans, La., for respondent-appellee.
</attorneys><br><p data-order="7" data-type="judges" id="b129-11">
Before AINSWORTH, GODBOLD and VANCE, Circuit Judges.
</p><div class="footnotes"><div class="footnote" data-order="8" data-type="footnote" id="fn*" label="*">
<a class="footnote" href="#fn*_ref">
*
</a>
<p id="b128-26">
Rule 18, 5 Cir.;
<em>
see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New New York et
</em>
al., 5 Cir., 1970, 431 F.2d 409, Part I.
</p>
</div></div> | [
"597 F.2d 64"
]
| [
{
"author_str": "Per Curiam",
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": "http://bulk.resource.org/courts.gov/c/F2/597/597.F2d.64.78-3306.html",
"author_id": null,
"opinion_text": "597 F.2d 64\n Arthur BAILEY, Jr., Petitioner-Appellant,v.Frank BLACKBURN, Warden, Louisiana State Penitentiary,Respondent-Appellee.\n No. 78-3306\n \n Summary Calendar.*\n United States Court of Appeals,Fifth Circuit.\n June 15, 1979.\n Arthur Bailey, pro se.\n Wm. J. Guste, Jr., Atty. Gen., Baton Rouge, La., William E. Wynne, Asst. Dist. Atty., New Orleans, La., for respondent-appellee.\n Appeal from the United States District Court for the Eastern District of Louisiana.\n Before AINSWORTH, GODBOLD and VANCE, Circuit Judges.\n PER CURIAM:\n \n \n 1\n Bailey is a Louisiana state prisoner under a life sentence as a multiple offender. He contends, by a federal habeas corpus petition, that the Louisiana multiple offender statute, La.R.S. 15:529.1, violates the Eighth Amendment. The district court dismissed without prejudice for failure to exhaust Louisiana state remedies. In a series of cases the Louisiana courts have held the statute constitutional, so Bailey contends it is futile for him to present his claim first to the state courts.\n \n \n 2\n The district court relied upon our panel opinion in Rummel v. Estelle, 568 F.2d 1193 (CA5, 1978), which held the Texas habitual criminal statute violated the Eighth Amendment and would appear to require the Louisiana courts to re-examine their position. The panel decision in Rummel was, however, vacated by the court en banc which held the Texas statute constitutional. Rummel v. Estelle, 587 F.2d 651 (CA5, 1978) (en banc). Despite this we think that the Louisiana courts are entitled to re-examine their positions in the light of the en banc decision in Rummel. For example, one of the factors relied upon by the en banc court in sustaining the validity of the Texas statute was Rummel's eligibility for parole after 12 calendar years. The Louisiana parole structure is materially different. Among other things, it forbids parole to a prisoner serving a life sentence unless his sentence is first commuted by the governor to a term of years. La.R.S. 15:574.4(B) and 15:572. Whether in light of Rummel en banc such a statute is constitutional is a matter for Louisiana courts to address first.\n \n \n 3\n AFFIRMED.\n \n \n \n *\n Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New New York et al., 5 Cir., 1970, 431 F.2d 409, Part I\n \n \n ",
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]
| Fifth Circuit | Court of Appeals for the Fifth Circuit | F | USA, Federal |
2,319,464 | Eveleigh | 2011-06-30 | false | gillians-v-vivanco-small | Gillians | Gillians v. Vivanco-Small | Phyllis E. Gillians v. Yodna Vivanco-Small Et Al. | Mark F. Katz, in support of the petition. | null | null | null | null | null | null | null | null | null | null | 3 | Published | null | <parties id="b907-4">
PHYLLIS E. GILLIANS
<em>
v.
</em>
YODNA VIVANCO-SMALL ET AL.
</parties><decisiondate id="AZN">
Decided June 30, 2011
</decisiondate><attorneys id="AMOu">
<em>
Mark F. Katz,
</em>
in support of the petition.
</attorneys> | [
"23 A.3d 726",
"301 Conn. 933"
]
| [
{
"author_str": null,
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"type": "010combined",
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"author_id": 3953,
"opinion_text": "\n23 A.3d 726 (2011)\n301 Conn. 933\nPhyllis E. GILLIANS\nv.\nYodna VIVANCO-SMALL et al.\nNot in source\nSupreme Court of Connecticut.\nDecided June 30, 2011.\nMark F. Katz, in support of the petition.\nThe plaintiffs petition for certification for appeal from the Appellate Court, 128 Conn.App. 207, 15 A.3d 1200, is denied.\n*727 EVELEIGH, J., did not participate in the consideration of or decision on this petition.\n",
"ocr": false,
"opinion_id": 2319464
}
]
| Supreme Court of Connecticut | Supreme Court of Connecticut | S | Connecticut, CT |
1,075,945 | null | 1999-06-23 | false | parr-v-tower-management | Parr | Parr v. Tower Management | null | null | null | null | null | null | null | null | null | null | null | null | 0 | Published | null | null | null | [
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": 11,
"download_url": "http://www.tsc.state.tn.us/sites/default/files/OPINIONS/TCA/PDF/992/parrlori.pdf",
"author_id": null,
"opinion_text": "LORI PARR, SUE MURRAY, )\nOLLIE STUART, KEVIN )\nSELLERS, MARY LOU DAVY, )\n\n Plaintiffs/Appellants\n )\n )\n )\n Appeal No. FILED\n 01-A-01-9811-CV-00573\nv. ) June 23, 1999\n ) Rutherford Circuit\nTOWER MANAGEMENT ) No. 36015 Cecil Crowson, Jr.\nCOMPANY, CEDAR PARK ) Appellate Court Clerk\nMOBILE HOME ESTATES, )\nCATHY BORN, ANN SNELL, )\n )\n Defendants/Appellees. )\n )\n\n\n COURT OF APPEALS OF TENNESSEE\n\n\n APPEAL FROM THE CIRCUIT COURT FOR\n RUTHERFORD COUNTY\n AT MURFREESBORO, TENNESSEE\n\n\n THE HONORABLE ROBERT E. CORLEW, JUDGE\n\n\n\n\nLORI PARR, Pro Se\n1784 West Northfield Blvd., Box 267\nMurfreesboro, Tennessee 37129\n\nSUE MURRAY STEWART, Pro Se\n1263 Wenlon Drive\nMurfreesboro, Tennessee 37130\n\n\nBARBARA J. PERUTELLI\nSchulman, LeRoy & Bennett\n501 Union Street, 7th Floor\nP. O. Box 190676\nNashville, Tennessee 37219-0676\n\n\n AFFIRMED AND REMANDED\n\n WILLIAM B. CAIN, JUDGE\n OPINION\n\f This case started with a five page complaint in the Circuit Court of\nRutherford County, Tennessee and expanded to occupy the known universe.\n\n\n Plaintiffs, Lori Parr, Sue Murray, Ollie Stuart, Kevin Sellers and Mary\nLou Davy, employed attorney, Lawrence H. Hart, to file suit against Tower\nManagement Company, Cedar Park Mobile Home Estates, Cathy Born, and Ann\nSnell, collectively and individually.\n\n\n Suit was filed December 27, 1995, alleging that Plaintiffs were present\nand former lessees of mobile home lots in Cedar Park Mobile Home Estates.\nThe complaint charged all Defendants with being \". . . deliberately and wilfully\nengaged in a course of unfair, deceptive, unlawful and outrageous conduct which\nvictimized and caused injury to the plaintiffs and other residents of the mobile\nhome park.\" Among the practices alleged were unlawful ouster and eviction\nfrom their respective lots, violation of the Tennessee Consumer Protection Act,\nintentional infliction of emotional harm, and unlawful ouster under Tennessee\nCode Annotated section 66-28-504. Plaintiffs sought treble damages under the\nConsumer Protection Act, punitive damages and compensatory damages.\n\n\n By amended complaint filed December 28, 1995, William Steel, Login\nBoggs, and Mary Jane Boggs were added as individual Defendants.\n\n\n Extensive discovery followed and Plaintiffs ultimately filed a motion\nto add additional Plaintiffs while Defendants filed a motion for summary\njudgment.\n\n\n On January 9, 1998, the following order was entered:\n This cause came on further to be considered by the\n Court on three separate issues, first a motion to add\n additional Plaintiffs, opposed by the Defendants; second a\n motion of the Defendants for summary judgment, opposed\n by the Plaintiffs; and third a joint motion of the parties that\n the cause set for trial January 12, 1998 be continued in order\n to allow the matter to be presented through arbitration, and\n from the entire file in this cause, the Court finds that the first\n two motions should be denied and that the joint motion\n should be granted.\n IT IS THEREFORE ORDERED that the motion to add\n\n -2-\n\f additional Plaintiffs is denied.\n IT IS THEREFORE ORDERED that the Defendants'\n motion for summary judgment is denied.\n FINALLY IT IS ORDERED that the joint motion of the\n parties to continue the trial from the setting of January 12,\n 1998 is granted, and the joint motion to proceed to\n arbitration pursuant to the provisions of Tennessee Code\n Annotated §29-5-101, et seq. is granted. Further this cause\n shall remain on the active docket in this court through May\n 31, 1998, not subject to further orders of dismissal prior to\n that time, subject to further proceedings pursuant to the\n provisions of Tennessee Code Annotated §29-5-118.\n Costs are reserved pending the entry of the final order\n in this cause.\n\n\n\n On January 12, 1998, the trial court entered the following order:\n As evidenced by signature of counsel for the respective\n parties hereto, it is agreed that the parties shall resolve all\n disputes by submitting them to arbitration. The Arbitrator\n shall determine all issues in this cause including the\n assessment of discretionary costs and court costs. The costs\n of arbitration shall be shared equally by plaintiffs and\n defendants.\n\n\n\n With no further orders of the court the case was heard on arbitration by\nJudge Joe C. Loser on March 5, 1998. Lawrence H. Hart appeared as counsel for\nthe plaintiffs and Barbara J. Perutelli appeared as counsel for the defendants All\nof the plaintiffs, including Lori Parr and Sue Murray, fully participated in the\narbitration hearing. The arbitrator took the case under advisement and on March\n31, 1998, issued a twenty page \"arbitration award\" finding in favor of the\nplaintiffs and against the defendants. In this arbitration award Judge Loser held,\nin part:\n Thereafter, in 1994, the rules and regulations were\n changed by adding rule 6a, which states:\n All homes moving into the community must\n not be older than eight (8) years old, and approved\n by management.\n The new rule was interpreted to mean that any buyer of\n the plaintiffs' mobile homes, all of which were older than\n eight years, would be required to remove the mobile home\n from the park. The interpretation caused the plaintiffs'\n mobile homes to lose value, for which no compensation was\n offered or paid.\n Under such circumstances, the action of Cedar Park was\n\n -3-\n\f unfair and deceptive in violation of the Tennessee Consumer\n Protection Act, and Cedar Park is thus liable to the plaintiffs,\n and each of them, for their \"actual damages,\" which, under\n the circumstances of these cases, is either the difference in\n value of the mobile home immediately before and after the\n changed rule for selling older homes or, if the evidence does\n not establish the before and after values, the reasonable cost\n of relocating the home to a similar location. The most\n credible evidence of the reasonable relocation cost was the\n $1,500.00 estimate by Mr. Boggs.\n The arbitrator finds the following actual damages to\n have been established from a preponderance of the evidence:\n Mary Lou Davy, $5,000.00, representing the\n difference between the before and after value of\n her home;\n Lori Parr, $1,500.00, representing the\n reasonable cost of relocation;\n Sue Murray, $1,500.00, representing the\n reasonable relocation cost7; and\n Kevin Sellers, $10,500.00, representing the\n difference between [the between] the before and\n after value of his home.\n Additionally, and as the Act provides, each of the\n plaintiffs may recover a reasonable attorney's fee not\n exceeding one-third of his or her recovery. If the parties are\n unable to agree on the reasonable value of the services\n provided by plaintiffs' counsel, an additional evidential\n hearing may be requested.\n The arbitrator finds that the defendants' violation of the\n Consumer Protection Act was not willful or wanton. Thus,\n this is not an appropriate case for an award of treble\n damages.\n ______________________\n 7\n Ollie Stewart has no separate claim.\n\n\n\n On April 15, 1978, the defendants paid the arbitration award, including\nattorney fees and one-half of the arbitrator's fee into the Circuit Court of\nRutherford County.\n\n\n At this point, Plaintiff, Lori Parr, allied with Plaintiff, Sue Murray,\nfired their attorney, Lawrence H. Hart, and proceeded thereafter to represent\nthemselves.\n\n\n Thereafter, hundreds of pages of documents reflecting little regard for\nRules of Procedure or Rules of Law, are set forth in this record, bitterly second\n\n\n -4-\n\fguessing the trial tactics of Attorney Hart and attacking, with near equal vigor,\nthe actions of Attorney Perutelli.\n\n\n Returning now to the correct procedural and substantive track, it is first\nnoted that, although Lori Parr and Sue Murray participated and testified in a full\nhearing before the arbitrator on March 8, 1998, we are favored with no\nevidentiary transcript of that hearing. Keeping in mind that the defendants cast\nbefore the arbitrator have paid the judgment in full into the registry of the court;\nand that only certain of the prevailing plaintiffs, who are dissatisfied with their\nrespective awards seek to disavow the arbitration; we proceed.\n\n\n Weaving our way through the seemingly endless objections interposed\nby Plaintiffs Parr and Murray, we reach the review by the trial judge of the\nactions of the arbitrator. The trial judge is bound, as are we, by the stringent\nlimitations set forth in Arnold v. Morgan Keegan & Co., Inc., 914 S.W.2d 445\n(Tenn. 1996). Therein, the Supreme Court, in construing the Tennessee\narbitration statutes, held:\n We begin with a discussion of the standards of review\n to be used by a trial court when reviewing an arbitration\n award and by the Court of Appeals when reviewing the trial\n court's judgment in an arbitration case. Tennessee has\n adopted the Uniform Arbitration Act, Tenn. Code Ann. §§\n 29-5-301 through 320 (Supp. 1995). This Act \"governs the\n scope of judicial review of arbitration awards.\" International\n Talent Group, Inc. v. Copyright Management, Inc., 769\n S.W.2d 217, 218 (Tenn. App. 1988). For guidance, we can\n look to other jurisdictions which have adopted the Uniform\n Arbitration Act. Tenn. Code Ann. § 29-5-320 (\"This part\n shall be so construed as to effectuate its general purpose to\n make uniform the law of those states which enact it.\").\n The standard to be applied by the trial court is a narrow\n one. It is well established that courts should play only a\n limited role in reviewing the decisions of arbitrators. United\n Paperworkers Int'l Union, AFL-CI0 v. Misco, Inc., 484 U.S.\n 29, 36, 108 S.Ct. 364, 369, 98 L.Ed.2d 286 (1987).\n [W]here the party has agreed to arbitrate, he or\n she, in effect has relinquished much of [the right\n to a court's decision on the merits.] The party still\n can ask a court to review the arbitrator's decision,\n but the court will set that decision aside only in\n very unusual circumstances.\n First Options of Chicago, Inc. v. Kaplan, _____ U.S. _____,\n _____, 115 S.Ct. 1920, 1923, 131 L.Ed.2d 985 (1995)\n\n -5-\n\f (emphasis added) (citations omitted).2 The trial court is\n limited by the provisions of the statute which allow a\n vacation or modification of an award. See International\n Talent Group, 769 S.W.2d at 218.\n __________________\n 2\n While First Options of Chicago concerns the Federal\n Arbitration Act, we note that the purpose of the Federal and\n Uniform Arbitration Act is the same: to promote private\n settlement of disputes, thereby bypassing the courts. As\n such, the scope of review advanced by the United States\n Supreme Court has equal application in a case under the\n Uniform Arbitration Act to the extent that such review\n furthers the common goal of the acts.\n * **\n The limiting language of the statutes governing vacation\n and modification of arbitration awards evidences an intent to\n limit severely the trial court's authority to retry the issues\n decided by arbitration. As the New Mexico Supreme Court\n observed in Melton v. Lyon: \"It is not the function of the\n Court to hear cases de novo and consider evidence presented\n to the arbitrators, but rather to conduct an evidentiary hearing\n and enter findings of fact and conclusions of law upon each\n issue raised in the application to vacate or modify the\n award.\" 108 N.M. 420, 773 P.2d 732, 733 (1989) (citation\n omitted). Moreover, the trial court must accord deference to\n the arbitrator's award.\n\nArnold v. Morgan Keegan Co., Inc., 914 S.W.2d 445, 447-48 (Tenn. 1996).\n\n\n Thoroughly conscious of the limitations thus placed upon his authority\nby the Uniform Arbitration Statutes and the construction thereof by the\nTennessee Supreme Court, the learned chancellor held:\n The court has considered the provisions of the statutory\n and case law, and has determined that all Plaintiffs are bound\n by the decision of their attorney to submit the matter to\n binding arbitration combined with the participation by these\n parties in the arbitration process, that the decision of the\n arbitrator must be affirmed, . . .\n\n\n\n This holding by the chancellor is clearly correct when the actions of\nLori Parr and Sue Murray are considered in the context of the arbitration\nproceeding. While it is true that Attorney Hart could not bind his clients to\ncompulsory arbitration without their agreement, and the record does not disclose\nan affirmative agreement to arbitrate by them, it is equally true that they have\nratified his actions and cannot now be heard to complain about the arbitration.\n\n -6-\n\fThe record before this court shows no complaint at all by Parr or Murray until\nafter the arbitrator disappointed them. The fully participated in the proceeding,\ntestified before the arbitrator, consulted with their attorney before the arbitrator,\nand uttered no protest which would allow the trial court to vacate the award\nunder Tennessee Code Annotated section 29-5-313 or otherwise. Tenn. Code\nAnn. § 29-5-313 (Supp. 1998). No such protest is preserved for appellate\nreview. As the chancellor held, they cannot acquiesce and indeed fully\nparticipate in the arbitration and then, disappointed with the outcome, disavow\nthe action of their attorney and agent.\n\n\n It is an undisputed principle of law that where an agent in the\n first place exceeds his authority, or acts without authority,\n such acts may become the acts of the principal by\n ratification, which may be either expressed or implied. See\n 1 Am. & Eng. Enc. Law (2d Ed.) p. 1195, and authorities\n cited; McClure v. Evartson, 14 Lea, 495; Oil Works v.\n Jefferson, 2 Lea, 581; Williams v. Storm, 6 Cold. 207; Evans\n v. Buckner, 1 Heisk, 294. It is further well-settled law that,\n if a party does not disavow the acts of his agent as soon as he\n can after they come to his knowledge, he makes these acts\n his own. See Pars. Cont. 49, 50, and authorities above cited.\n In the case of Williams v. Storm it is said: \"Where the\n principal has the option to repudiate the contract or to ratify\n it, he is bound promptly to do either the one or the other.\" 6\n Cold. 207. It is stated in all the authorities on these subjects,\n however, that, before a ratification can be implied or binding,\n the principal must have knowledge of the acts which he is\n supposed to ratify. In some of the cases it is stated that he\n must have full knowledge, and in others that he must have\n knowledge of all the material facts and circumstances. See\n 1 Am. & Eng. Enc. Law (2d Ed.) p. 1189. It is also held that\n knowledge of facts by another agent, where the matter is\n within the scope of his agency, is sufficient. See authority\n last cited, p. 1192. It is further held that, if the facts show a\n ratification, the intention of the parties is immaterial; so that,\n to constitute a ratification, it is not material whether a\n ratification was contemplated or not. See Hazard v. Spears,\n 2 Abb. Dec. 353. It has further been held that the conduct of\n the principal will be liberally construed in favor of a\n ratification or adoption of the acts of the agent (see 1 Am. &\n Eng. Enc. Law. p. 1195, and authorities there cited); in all the\n cases it being held that, when a knowledge of the transaction\n comes to the principal, he must with reasonable promptness\n disaffirm the acts of the agent, or he will be held bound\n thereby.\n\nBement & Sons v. Armstrong, 39 S.W. 899, 903 (Tenn. Chan. App. 1896).\n\n -7-\n\f After affirming the decision of the arbitrator, the trial court ordered\ndistribution of the arbitration award as follows:\n IT IS THEREFORE ORDERED that the Court approves\n the award determined by the arbitrator. Further it is ordered\n that the Clerk shall pay the following sums to the following\n individuals: to Plaintiff Parr the sum of $1,220.07; to\n Plaintiff Murray the sum of $1,220.07; to Plaintiff Davy the\n sum of $4,067.02; and to Plaintiff Sellers the sum of\n $8,541.20; to Attorney Hart the sum of $6,166.66 for\n attorney's fees, and the sum of $1,261.14 as reimbursement\n for out-of-pocket expenses for court reporter fees, advanced\n payment to the arbitrator, and long distance telephone\n charges; to Arbitrator Loser the sum of $2,190.50,\n representing half of the cost of arbitration, which must be\n paid by the awards to the Plaintiff. Further it is ordered that\n the requests for payment and further reimbursements for\n assistance in trial preparation submitted by Plaintiff Parr\n must be respectfully denied. Further it is ordered that\n Plaintiffs Parr and Murray shall proceed further in this cause\n pro se, upon their request, and Attorney Hart is relieved from\n further responsibility for representation of these Plaintiffs.\n\n\n\n This order entered June 25, 1998, on pages 293-295 in Volume II of the\nrecord, would appear to have been intended by the trial judge as a final\njudgment, but 294 pages later, in Volume IV of the transcript under date of\nOctober 26, 1998, the following order appears:\n This cause came on to further be considered by the\n Court on this the 26th day of October, 1998, upon the entire\n file in this cause, from all of which the Court finds that the\n pending motions for a new trial, and to alter or amend the\n prior judgment must be respectfully denied, and the Order of\n June 25, 1998 shall be affirmed, and made the final order of\n the Court in this cause, and that all other pending motions\n must be respectfully denied.\n It is therefore ordered that the Court approves the award\n determined by the arbitrator. It is further ordered that the\n Clerk shall pay the following sums to the following\n individuals:\n To Plaintiff, Parr, the sum of $ 1220.07;\n To Plaintiff, Murray(Stewart), the sum of $ 1220.07;\n To Plaintiff, Davy, the sum of $ 4067.02;\n To Plaintiff, Sellers, the sum of $ 8541.20;\n To Attorney, Hart, the sum of $ 6166.66 for attorney's\n fees, and the sum of $ 1261.14 as reimbursement for out of\n pocket expenses for Court Reporter fees, advanced payment\n to the arbitrator, and long distance telephone charges;\n To Arbitrator, Loser, the sum of $ 2190.50, representing\n\n -8-\n\f one-half of the cost of arbitration (the other one-half having\n been previously paid to him by the Defendants).\n Further it is ordered that the request for payments and\n further reimbursements for assistance in trial preparation\n submitted by Plaintiff, Parr must be respectfully denied. All\n further pending motions are also respectfully denied.\n Costs in the cause, including a $ 30.00 cost of service of\n process are taxed against the Defendants up to, through, and\n including, all costs of the entry of the June 25, 1998 Order,\n but the costs incurred after June 25, 1998 must be paid by\n Ms. Parr.\n IT IS SO ORDERED AS ABOVE.\n Enter this the 26th day of October , 1998.\n\n\n\n From this October 26, 1998 order, Lori Parr and Sue Murray appealed.\n\n\n The voluminous record on appeal reveals neither verbatim transcript\nnor Rule 24(c) statement, preserving any evidence heard by the trial judge at any\nof the hearings in this case.\n\n\n This court has held:\n Our ability to deal with this issue is hampered by the absence\n of either a transcript of the proceedings in the trial court or a\n statement of the evidence prepared in accordance with Tenn.\n R. App. P. 24(c).\n When a trial court decides a case without a jury, it's\n findings of fact are presumed to be correct unless the\n evidence in the record preponderates against them. Tenn. R.\n App. P. 13(d). This court cannot review the facts de novo\n without an appellate record containing the facts, and therefor,\n we must assume that the record, had it been preserved, would\n have contained sufficient evidence to support the trial court's\n factual findings. McDonald v. Onoh, 772 S.W.2d 913, 914\n (Tenn. Ct. App. 1989); Irvin v. City of Clarksville, 767\n S.W.2d 649, 653 (Tenn. Ct. App. 1987); Gotten v. Gotten,\n 748 S.W.2d 430, 432 (Tenn. Ct. App. 1988).\n\nSherrod v. Wix, 849 S.W.2d 780, 783 (Tenn. App. 1992).\n\n\n\n\n Pro se Appellants filed, with the trial court, what purports to be a Rule\n24(c) statement of the proceedings before the arbitrator on March 5, 1998. This\ndocument is not approved by the trial judge in conformity with Rule 24(f), and\nis not, in fact, a statement of evidence but simply another rambling complaint\n\n -9-\n\fagainst the lawyers in the case. Typical of its contents is the following:\n The plaintiffs Sue Murray and Lori Parr submit the\n following statement to the Court of what occurred at the\n arbitration hearing of March 5, 1998. No transcript of the\n hearing is available because the plaintiffs' former attorney,\n Lawrence Hart, refused to comply with the plaintiffs' request\n for a court reporter to be present at the arbitration hearing by\n stating to the plaintiffs \"Who's going to pay for it, are you?\n I'm certainly not.\" Therefore, the plaintiffs' will present to\n the Court their recollection of what transpired at the\n arbitration hearing with respect to those issues that are the\n bases of the plaintiffs' appeal, as per Rules of Appellate\n procedure, Rule 24 C.\n ***\n In reference to the defendants' attorney Perutelli's\n Response to the plaintiffs' Murray and Parr's Motions To\n Make Additional Findings Of Fact, Motions To Alter Or\n Amend/Alter Judgment, and Motion For A New Trial, page\n 3, in regards to plaintiff Murray and Parr's \"displeasure\",\n plaintiffs Murray and Parr do hereby state to this Honorable\n Court that the true displeasure of plaintiffs Parr and Murray\n are that two officers of the Court - one who was supposed to\n be representing and protecting their best interests - instead\n chose to fabricate a false story to the arbitrator, to the\n plaintiffs, and to the trial Court, eventually deceiving this\n Honorable Court into confirming an arbitration award that\n was not based upon truth, but instead was based upon false\n facts, and deliberate lies.\n\n\n\n Without a verbatim transcript of the arbitration proceedings or some\nother kind of transcript, the trial court was hardly in a position to review the\naward of the arbitrator under the narrow standard of review provided by the\nUniform Arbitration Act. Arnold v. Morgan Keegan & Co., Inc., 914 S.W.2d\n445, 448 (Tenn. 1996).\n\n\n As we labor under the same handicaps, along with the additional\nhandicap of having no transcript of any of the proceedings that occurred before\nthe trial judge, we have no basis on which to find the decision of the trial judge\nto be \"clearly erroneous\" under the standards applicable to appellate court\nreview. Arnold v. Morgan Keegan & Co, Inc., 914 S.W.2d 445, 449 (Tenn.\n1996).\n\n\n We have no choice but to affirm the judgment of the chancellor.\n\n -10-\n\f The appellees assert that the trial court was in error in failing to grant\nsummary judgment to the appellees rather than submitting the case to arbitration.\n\n\n We affirm the chancellor's decision that material issues of fact existed\nand summary judgment was improper.\n\n\n Defendants seek damages for frivolous appeal.\n\n\n While it is true that these pro se litigants have burdened the courts and\ncounsel with a deluge of unnecessary and improper documentation, mostly as to\nmatters not properly drawn in issue in this case, it must be observed that no\nagreement executed by Parr and Murray appears in this record for submitting the\ncase to arbitration rather than to trial. They are bound by the arbitration because\ntheir voluntary participation therein constituted ratification of the otherwise\nunauthorized (as far as the record shows) action of Mr. Hart in agreeing to\narbitration. The application for frivolous appeal damages will be denied.\n\n\n All costs on appeal are assessed against Lori Parr and Sue Murray and\nthe judgment of the chancellor is in all respects affirmed. The cause is remanded\nto the trial court for the purpose of collecting costs.\n\n\n\n\n _____________________________________\n WILLIAM B. CAIN, JUDGE\n\nCONCUR:\n\n______________________________________\nBEN H. CANTRELL, P.J., M.S.\n\n______________________________________\nPATRICIA J. COTTRELL, JUDGE\n\n\n\n\n -11-\n\f",
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| Court of Appeals of Tennessee | Court of Appeals of Tennessee | SA | Tennessee, TN |
245,327 | Hamley, Pope, Stephens | 1958-05-08 | false | abe-s-toberoff-individually-and-doing-business-as-t-r-productions-v | null | Abe S. Toberoff, Individually, and Doing Business as T-R Productions v. Arthur E. Summerfield, Postmaster General of the United States | Abe S. TOBEROFF, Individually, and Doing Business as T-R Productions, Appellant, v. Arthur E. SUMMERFIELD, Postmaster General of the United States, Appellee | Brock, Fleishman & Rykoff, Stanley Fleishman, Hollywood, Cal., for appellant., Laughlin E. Waters, U. S. Atty., Richard A. Lavine, Alfred B. Doutre, Los Angeles, Cal., for appellee. | null | null | null | null | null | null | null | null | null | null | 1 | Published | null | <parties data-order="0" data-type="parties" id="b145-4">
Abe S. TOBEROFF, individually, and doing business as T-R Productions, Appellant, v. Arthur E. SUMMERFIELD, Postmaster General of the United States, Appellee.
</parties><br><docketnumber data-order="1" data-type="docketnumber" id="b145-6">
No. 15988.
</docketnumber><br><court data-order="2" data-type="court" id="b145-7">
United States Court of Appeals Ninth Circuit.
</court><br><decisiondate data-order="3" data-type="decisiondate" id="b145-8">
May 8, 1958.
</decisiondate><br><attorneys data-order="4" data-type="attorneys" id="b146-4">
<span citation-index="1" class="star-pagination" label="92">
*92
</span>
Brock, Fleishman & Rykoff, Stanley Fleishman, Hollywood, Cal., for appellant.
</attorneys><br><attorneys data-order="5" data-type="attorneys" id="b146-5">
Laughlin E. Waters, U. S. Atty., Richard A. Lavine, Alfred B. Doutre, Los Angeles, Cal., for appellee.
</attorneys><br><p data-order="6" data-type="judges" id="b146-6">
Before STEPHENS, Chief Judge, and POPE and HAMLEY, Circuit Judges.
</p> | [
"256 F.2d 91"
]
| [
{
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"opinion_text": "256 F.2d 91\n Abe S. TOBEROFF, individually, and doing business as T-R Productions, Appellant,v.Arthur E. SUMMERFIELD, Postmaster General of the United States, Appellee.\n No. 15988.\n United States Court of Appeals Ninth Circuit.\n May 8, 1958.\n \n Brock, Fleishman & Rykoff, Stanley Fleishman, Hollywood, Cal., for appellant.\n Laughlin E. Waters, U. S. Atty., Richard A. Lavine, Alfred B. Doutre, Los Angeles, Cal., for appellee.\n Before STEPHENS, Chief Judge, and POPE and HAMLEY, Circuit Judges.\n HAMLEY, Circuit Judge.\n \n \n 1\n This is an appeal from a district court order directing that mail addressed to T-R Productions, Los Angeles, be detained until final determination of mail-exclusion proceedings pending before the Post Office Department. The order under review was entered on April 14, 1958. The appeal has been expedited because of the claim that irreparable damage is being sustained.\n \n \n 2\n The essential facts are not in dispute. T-R Productions, of Los Angeles, California, is a business enterprise of Abe S. Toberoff, appellant herein. An authorized postal official, after an investigation, came to the conclusion that, under this business name, Toberoff was utilizing the mails to advertise and receive remittances for obscene, lewd, lascivious, and indecent photographs and moving pictures. This resulted in the commencement of an administrative proceeding in the Department, pursuant to 39 U.S.C.A. § 259a. The relief sought was an order by the Postmaster General requiring that all such mail matter and remittances be returned to the senders.\n \n \n 3\n On March 13, 1958, when the proceeding was commenced, the complaining official also filed therein a petition for an interim impounding order, as authorized by 39 U.S.C.A. § 259b. Such an order was entered by the acting general counsel of the Department, on March 17, 1958.\n \n \n 4\n This order required the postmaster at Los Angeles to withhold from delivery and detain at his office all mail received there addressed to T-R Productions, or its agents and representatives. There was excepted all mail matter which could be identified on the face of the envelopes or wrappers as not being related to the T-R Productions enterprise.\n \n \n 5\n The order further provided that mail should be held and detained for a period not to exceed twenty days from March 21, 1958, \"unless the period of impounding is extended by order of the United States District Court upon petition therefor * * *.\" The specified expiration date of the order was therefore April 10, 1958.\n \n \n 6\n Believing that an extension of this administrative impounding order was reasonable and necessary, the Postmaster General, on March 28, 1958, instituted this proceeding in the district court. Following the procedure prescribed in § 259b, the petitioner prayed for an order directing that mail of the kind in question be held and detained until the conclusion of the administrative proceeding, or until the further order of the court.\n \n \n 7\n Toberoff, on April 4, 1958, filed an answer to this petition. He resisted, on both procedural and substantive grounds, the request for a court-sanctioned extension of the impounding order. At a hearing held on April 7, 1958, oral testimony, affidavits, and exhibits were received and considered by the court. The court then orally announced that it agreed with the position of the Postmaster General.1\n \n \n 8\n The court thereupon orally ordered that the administrative order to impound Toberoff's mail remain in effect, and that Toberoff's motion to dismiss the petition be denied. The court also directed the United States attorney to prepare formal findings and order thereon. The minute order entered on that date is quoted in the margin.2\n \n \n 9\n On April 11, 1958, in conformance with Rule 7, Local Rules, Southern District of California, West's Ann.Code, proposed findings of fact and conclusions of law and a proposed order were lodged with the court. These documents were then held pursuant to Rule 7, in order that opposing counsel might have an opportunity to file an objection to form within five days.\n \n \n 10\n On April 14, 1958, Toberoff moved the court for an order requiring forthwith delivery of his mail. The ground for such relief, as asserted in the proposed order which he lodged with the court, was that the administrative impounding order had by its terms expired, and no valid court order continuing the impounding order in effect had been made prior to such expiration date. Toberoff, at the same time, filed objections to the Postmaster General's proposed findings of fact, conclusions of law, and order.\n \n \n 11\n The motion and objections were considered and acted upon on that day. The motion for an order directing forthwith delivery of mail was denied. The objections to the proposed findings of fact, conclusions of law, and order were overruled. The findings, conclusions, and order extending the impounding order were thereupon signed and filed. On the following day, Toberoff instituted this appeal.3\n \n \n 12\n The single question before us is whether the jurisdiction of the district court to enter such an order had expired prior to the entry of an otherwise valid order extending the administrative impounding order.\n \n \n 13\n The jurisdiction of the district court to enter such an order is derived from 39 U.S.C.A. § 259b, the applicable portion of which is quoted in the margin.4\n \n \n 14\n It is made plain in this statute that such an order is to be entered only in conjunction with, and as an extension of, an administrative impounding order entered prior thereto, in proceedings pending before the Post Office Department. It follows that, if the administrative impounding order has expired prior to the entry of a court order extending the impounding period, jurisdiction to enter such court order lapses, and a purported order entered thereafter is without force or effect.\n \n \n 15\n The administrative impounding order here in question expired, by its own terms, on April 10, 1958, \"unless the period of impounding is extended by order of the United States District Court upon petition therefor * * *.\" The necessary inference from this language is that the court order must be entered on or before April 10, 1958. If entered thereafter, it could not be an extension of the administrative impounding order, since the latter order would have already expired.\n \n \n 16\n But, apart from the language of the administrative order, we think the statute itself required that the court order be entered within the twenty-day maximum period that an administrative impounding order may, under § 259b, remain in effect. Indeed, it is very probable that the language of the administrative order was dictated by the requirements of the statute.\n \n \n 17\n Due to the somewhat artless phraseology of portions of § 259b, there is room to argue that a court order must be petitioned for, but need not be obtained, prior to the expiration of the twenty-day period.\n \n \n 18\n The section as a whole, however, indicates the awareness of Congress that the Postmaster General was being therein given great and unusual power,5 and that strict limitations upon the exercise of such power were required.6 The provision that an administrative impounding order shall expire in twenty days unless a court order is obtained is the most important of these built-in limitations. Yet, it could prove largely ineffective for this purpose if the mere filing of a court petition would serve to continue the administrative order in effect.7\n \n \n 19\n The legislative history of § 259b also persuasively argues against the construction which the Postmaster General would put on the act.8\n \n \n 20\n It is for these reasons that we have concluded that the Postmaster General's order of March 17, 1958, expired on April 10, 1958, unless a valid court order directing continued retention of such mail was entered on or prior to that date.\n \n \n 21\n The only order entered on or prior to that date was the minute entry of April 7, 1958, based upon the court's oral pronouncement from the bench at the conclusion of the hearing on April 7, 1958.9\n \n \n 22\n Under § 259b, a court order continuing in effect an administrative impounding order is to be entered only upon a determination that the continued withholding and detention of the mail is reasonable and necessary to the effective enforcement of § 259a. Toberoff v. Summerfield, 9 Cir., 245 F.2d 360.\n \n \n 23\n Under § 259b, the determination so made is reviewable on appeal. A determination of this kind was reviewed and set aside in Toberoff, supra. Where, however, the determination is not made of record, it cannot be reviewed, and the aggrieved person is deprived of the kind of an appeal contemplated by the statute. It follows that, if a purported order is not in such form that the affected person is able to obtain full appellate review thereof, it is not the kind of an order authorized by the statute, and is without effect.\n \n \n 24\n The Postmaster General calls attention to the fact that the preparation and entry of findings of fact to carry out the oral pronouncement of the court on April 7, 1958, proceeded as expeditiously as Local Rule 7 of that court would permit. This is doubtless true, and the practical difficulty of obtaining entry of formal findings of fact within the twenty-day period is also recognized.\n \n \n 25\n It may be that, in cases of this kind, the only practical course is to incorporate findings and conclusions in an opinion or memorandum of decision filed by the court immediately upon the conclusion of the hearing. This is permissible under Rule 52, Federal Rules of Civil Procedure, 28 U.S.C.A. It would also appear to be permissible under Local Rule 7, since the applicable paragraph of that rule begins with the words, \"unless the court otherwise directs. * * *\"\n \n \n 26\n For the reasons stated above, we hold that the minute entry of April 7, 1958, was not a valid and effective order of the kind authorized by § 259b. In view of the time limit specified in that section, we also hold that the findings of fact entered on April 14, 1958, did not operate, retrospectively, to transform that ineffective minute entry into a valid order as of the earlier date.10\n \n \n 27\n No valid court order having been entered on or prior to April 10, 1958, the jurisdiction of the trial court to act in such matter expired on that date. The order of April 14, 1958, is therefore without legal effect.\n \n \n 28\n Reversed, with directions to dismiss the petition and order all mail addressed to appellant held or detained in any post office pursuant to the administrative order of March 17, 1958, released forthwith for delivery.\n \n \n \n Notes:\n \n \n 1\n While we do not have a transcript of this hearing before us, it is stated in the Government brief that: \"Judge Yankwich set forth in detail his views and conclusions concerning the matter, and set forth the Court's position that the only issue before the court was whether an extension of the Interim Impounding Order was reasonable and necessary to the effective enforcement of 39 U.S.C.A. 259a.\"\n \n \n 2\n The minute order of April 7, 1958, reads:\n \"It Is Ordered that the Post Office Administrative Order to impound defendant's mail remain in effect and that the defendant's motion to dismiss the petition be denied and that the U. S. Attorney prepare formal findings and order thereon.\"\n \n \n 3\n Without waiting to perfect this appeal, Toberoff filed in this court, on April 16, 1958, a motion for the forthwith release of mail. The motion should be granted, Toberoff urged, because the district court was without jurisdiction to enter its order of April 14, 1958, the administrative impounding order having already expired\n The motion was argued before this court on April 21, 1958. During the course of argument, it was decided, with the mutual consent of counsel for both parties, to consider the matter as on appeal, rather than as before the court on the motion referred to above. It was decited to expedite the appeal in so far as determination of the jurisdictional question is concerned, it being understood that if the appeal could not be disposed of on that issue, further briefs and arguments on other issues would be called for. An order effectuating this plan was entered on April 22, 1958, it being therein provided that the Postmaster General would have until May 1, 1958, to file a further brief. The additional brief was filed on that date.\n \n \n 4\n 39 U.S.C.A. § 259b:\n \"* * * Any such order for the holding and detention of mail addressed to any person shall expire at the end of the twenty days after the issuance thereof unless the Postmaster General shall file, prior to the expiration of such twenty-day period, a petition in the United States district court for the district in which the post office in which such mail is held or detained is situated, and obtain an order directing that mail addressed to such person be held and detained for such further period as the court shall determine. Notice of the filing of any such petition shall be given forthwith * * * and such person shall have five days in which to appear and show cause why such order should not issue. If, upon all the evidence before it, the court shall determine that the continued withholding and detention of mail addressed to such person is reasonable and necessary to the effective enforcement of section 259a of this title, it shall forthwith issue an order directing that mail addressed to such person be held and detained by the postmaster at the office of delivery until conclusion of the proceeding by the Postmaster General or until further order of the court. If the court shall determine, upon all the evidence before it, that the continued withholding and detention of mail addressed to such person is not reasonable or necessary in the administration of section 259a of this title, it shall dismiss the petition and order all mail addressed to such person held or detained in any postoffice to be released forthwith for delivery. An appeal from the order of the court shall be allowed as in civil causes. * * *\"\n \n \n 5\n This awareness is expressly recorded in the report of the Senate Committee on Post Office and Civil Service, Senate Report No. 2234, June 14, 1956, accompanying H.R. 9842, which became § 259b. 2 U.S.Code Congressional and Administrative News, 84th Cong., Second Session 1956, pp. 3597, 3598. The committee there said:\n \"The committee recognizes that even in its present form the bill gives the Postmaster General extraordinary and summary powers to impose a substantial penalty by impounding a person's mail for up to 20 days in advance of any hearing or any review by the courts. Such power is directly contrary to the letter and spirit of normal due process, as exemplified by the Administrative Procedure Act, which requires a hearing before any penalty may be imposed. * * *\"\n \n \n 6\n In § 259b, the administrative order is designated an \"interim\" order. It is to be entered only after a determination by the Postmaster General that such action is necessary to the effective enforcement of § 259a. Notice of the entry of the order is to be sent to the affected person \"forthwith.\" Notice of the filing of a petition for a court order extending the administrative impounding order is to be given \"forthwith.\" A show cause hearing is provided for. A court order is to be entered, withholding and detaining mail for a further period only upon a determination that this is reasonable and necessary to the effective enforcement of § 259a, and is to then be entered \"forthwith.\" If it is determined that the continued withholding and detention of the mail is not reasonable or necessary, the court is to dismiss the petition and order the mail released for delivery \"forthwith.\"\n \n \n 7\n This would be particularly true in cases where, under the Postmaster General's construction of the statute, a court order is entered some time after expiration of the twenty-day period, dismissing the petition and releasing the mail for delivery\n \n \n 8\n When H.R. 9842, which became § 259b, passed the House of Representatives, the provision concerning expiration of an administrative impounding order required only that the Postmaster General petitionfor an order prior to the expiration of twenty days. The chairman of the Committee on Postal Matters, of the Section of Administrative Law of the American Bar Association, then wrote to the chairman of the Senate Committee on Post Office and Civil Service, calling attention to a possible ambiguity in the bill. He suggested that the ambiguity be removed by striking the word \"for\" and substituting the words \"and obtain.\"\n The Senate Committee referred this letter to the Post Office Department for comment. The solicitor of that department replied to the committee by letter dated June 13, 1956. In this letter, the solicitor wrote:\n \"From the very outset it had been my view that the provisions of H.R. 9842 were such as to require the Post Office Department to procure a court order extending the Postmaster General's interim order within the 20-day period specified in the bill. Failure to procure such an order before the 20th day would result in a termination of the Postmaster General's interim order.\n \"In my letter to the chairman of the House Committee on Post Office and Civil Service of the House of Representatives dated April 1, 1956, this statement appears:\n \"`The bills specifically limit these orders to a period of 20 days.'\n \"Under the circumstances, the Department has no objection to removing the alleged ambiguity in this bill by inserting as suggested by Mr. Denning, the words `and obtain' between the words `for' and `an' in line 11 of H.R. 9842, as it passed the House of Representatives on May 7, 1956. This insertion will make it abundantly clear that the Postmaster General's interim order will expire at the end of 20 days unless the court having jurisdiction has extended the order.\" 2 U.S.Code Congressional and Administrative News 1956, p. 3599.\n The bill was thereupon amended in conformity with these suggestions. The correspondence referred to above is set out as a part of the report of the Senate Committee. (See footnote 5.)\n \n \n 9\n See footnote 2\n \n \n 10\n Having called for the entry of formal findings and conclusions, the trial court was free to change its mind as to whether further impounding was reasonable and necessary. If it had done so, the administrative impounding order, under the theory of the Postmaster General, would have remained in effect beyond the twenty-day period, despite the fact that it was ultimately held not to be reasonable or necessary\n \n \n ",
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| Ninth Circuit | Court of Appeals for the Ninth Circuit | F | USA, Federal |
245,359 | Goodrich, Kalodner, McLAUGHLIN | 1958-06-02 | false | petition-for-naturalization-of-marko-terzich | null | Petition for Naturalization of Marko Terzich | Petition for Naturalization of Marko TERZICH, Appellant | Hymen Schlesinger, Pittsburgh, Pa., for appellant., Thomas J. Shannon, Asst. U. S. Atty., Pittsburgh, Pa. (D. Malcolm Anderson, U. S. Atty., Hubert I. Teitelbaum, First Asst. U. S. Atty., Western Dist. of Pa., Pittsburgh, Pa., on the brief), for appel-lee. | null | null | null | null | null | null | null | Argued March 7, 1958. | null | null | 12 | Published | null | <parties data-order="0" data-type="parties" id="b251-18">
Petition For Naturalization of Marko TERZICH, Appellant.
</parties><br><docketnumber data-order="1" data-type="docketnumber" id="b251-19">
No. 12391.
</docketnumber><br><court data-order="2" data-type="court" id="b251-20">
United States Court of Appeals Third Circuit.
</court><br><otherdate data-order="3" data-type="otherdate" id="b251-21">
Argued March 7, 1958.
</otherdate><br><decisiondate data-order="4" data-type="decisiondate" id="b251-22">
Decided June 2, 1958.
</decisiondate><br><attorneys data-order="5" data-type="attorneys" id="b252-13">
<span citation-index="1" class="star-pagination" label="198">
*198
</span>
Hymen Schlesinger, Pittsburgh, Pa., for appellant.
</attorneys><br><attorneys data-order="6" data-type="attorneys" id="b252-14">
Thomas J. Shannon, Asst. U. S. Atty., Pittsburgh, Pa. (D. Malcolm Anderson, U. S. Atty., Hubert I. Teitelbaum, First Asst. U. S. Atty., Western Dist. of Pa., Pittsburgh, Pa., on the brief), for appel-lee.
</attorneys><br><p data-order="7" data-type="judges" id="b252-15">
Before GOODRICH, McLAUGHLIN and KALODNER, Circuit Judges.
</p> | [
"256 F.2d 197"
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"opinion_text": "256 F.2d 197\n Petition For Naturalization of Marko TERZICH, Appellant.\n No. 12391.\n United States Court of Appeals Third Circuit.\n Argued March 7, 1958.\n Decided June 2, 1958.\n \n Hymen Schlesinger, Pittsburgh, Pa., for appellant.\n Thomas J. Shannon, Asst. U. S. Atty., Pittsburgh, Pa. (D. Malcolm Anderson, U. S. Atty., Hubert I. Teitelbaum, First Asst. U. S. Atty., Western Dist. of Pa., Pittsburgh, Pa., on the brief), for appellee.\n Before GOODRICH, McLAUGHLIN and KALODNER, Circuit Judges.\n KALODNER, Circuit Judge.\n \n \n 1\n Can a district court review a final order of deportation in a hearing on a petition for naturalization?\n \n \n 2\n That is the sole question presented on this appeal from the Order of the District Court1 dismissing a petition for naturalization on the ground that Section 318 of the Immigration and Nationality Act of 1952 (\"Act of 1952\")2 requires such action when, as here, there is outstanding a final order of deportation against the petitioner.\n \n The facts are as follows:\n \n 3\n Marko Terzich (\"petitioner\") filed his petition for naturalization on December 11, 1945. Thereafter, on June 15, 1953, he was arrested in deportation proceedings as an alien unlawfully in the United States. The warrant of arrest charged him with violation of Section 241(a)(6) (C) of the Act of 1952,3 in that he was, or had been subsequent to his entry into the United States, a member of the Communist Party of the United States and the Communist Political Association. After a hearing, the Special Inquiry Officer, on January 8, 1954, found petitioner to be a deportable alien and entered an Order directing his deportation. An appeal by petitioner from this Order was dismissed by the Board of Immigration Appeals (\"Board\") by Order dated June 22, 1954. Petitioner has not sought to secure judicial review of the outstanding order of deportation by writ of habeas corpus or by petition for declaratory judgment or injunctive relief.\n \n \n 4\n Section 318 of the 1952 act provides inter alia:\n \n \n 5\n \"* * * no person shall be naturalized against whom there is outstanding a final finding of deportability pursuant to a warrant of arrest issued under the provisions of this chapter or any other Act; and no petition for naturalization shall be finally heard by a naturalization court if there is pending against the petitioner a deportation proceeding pursuant to a warrant of arrest issued under the provisions of this chapter or any other Act * *\".4\n \n \n 6\n The Government submits that this provision deprives a naturalization court of jurisdiction to act upon a petition for naturalization while deportation proceedings pursuant to a warrant of arrest are pending, and compels such court to deny the petition when, as here, there has been a final finding and a deportation order. A naturalization court, says the Government, is entirely without jurisdiction to review the merits of the deportation order.\n \n \n 7\n Petitioner, however, contended in the court below that the District Court had jurisdiction in a naturalization proceeding to review the validity of an existing deportation order. He adheres to that contention here and adds another: that his eligibility for citizenship is preserved by the Savings Clause in Section 405(a) of the Act of 19525 since his petition for naturalization was filed prior to the effective date of the Act under which the deportation order was entered.\n \n As to the petitioner's first contention:\n \n 8\n The Order of January 8, 1954, was \"final\",6 constituting a \"final finding of deportability\" within the meaning of Section 318 (or its predecessor provision, Section 27 of the Internal Security Act of 1950).7 Federal courts, once they have determined an administrative final finding of deportability is outstanding, have proceeded no further.8 The District Court in the instant case was right in pursuing the same course.\n \n \n 9\n Our conclusion is buttressed by the decisional law restricting the form of judicial review of deportation orders. Prior to the enactment of the Act of 1952, such review was limited to habeas corpus proceedings.9 In Shaughnessy v. Pedreiro, 1955, 349 U.S. 48, 75 S. Ct. 591, 99 L. Ed. 868, the Supreme Court held that, in addition to habeas corpus, an alien ordered deported by the Attorney General under the provisions of the Act of 1952 could test the legality of such order in an action for declaratory judgment and injunctive relief under Section 10 of the Administrative Procedure Act.\n \n \n 10\n The pertinent provision of the Administrative Procedure Act states:\n \n \n 11\n \"(b) the form of proceeding for judicial review shall be any special statutory review proceeding relevant to the subject matter in any court specified by statute or in the absence or inadequacy thereof, any applicable form of legal action (including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus) in any court of competent jurisdiction. Agency action shall be subject to judicial review in civil or criminal proceedings for judicial enforcement except to the extent that prior, adequate, and exclusive opportunity for such review is provided by law.\"10 (Emphasis supplied.)\n \n \n 12\n Petitioner contends that Shaughnessy v. Pedreiro, supra, permitting judicial review of deportation orders under the Administrative Procedure Act, is authority for the proposition that a naturalization proceeding is an \"applicable form of legal action\" within the meaning of the quoted section. A similar contention was expressly rejected by the District Court for the Western District of Pennsylvania in In re Muniz, 1956, 151 F. Supp. 173, cited by the District Court in the instant case.\n \n \n 13\n Section 318 of the Act of 1952 and its predecessor, Section 27 of the Internal Security Act of 1950, were designed to prevent a race between deportation proceedings and naturalization proceedings. Shomberg v. United States, 1955, 348 U.S. 540, 75 S. Ct. 509, 99 L. Ed. 624. When, as here, a final finding of deportability is outstanding against a petitioner, the statute provides that he may not be naturalized. We find in this limitation no suggestion that jurisdiction to review the deportation proceeding thereby devolves upon the naturalization court. Rather, the provision compels the conclusion that Congress intended to separate deportation and naturalization proceedings. Once a naturalization court determines that a final finding of deportability is outstanding, it is required to deny the petition. Thereafter the petitioner may seek judicial review of the deportation order by habeas corpus or under the Administrative Procedure Act. The mere fact that there might be a delay involved in finally determining the naturalization proceeding when and if the order of deportation is expunged does not compel a contrary result.\n \n \n 14\n It may be noted that in oral argument, petitioner suggested that the Order in question is not a \"final finding of deportability\" under Section 318. This position is premised on the assumption that Section 318 speaks of judicial finality, rather than administrative finality. But assuming arguendo its correctness, Section 318 compels the determination that a naturalization court has no jurisdiction over the deportation proceeding which, if not finally determined, would necessarily be pending. The section clearly states that \"no petition for naturalization shall be finally heard by a naturalization court if there is pending against petitioner a deportation proceeding * * *.\"\n \n \n 15\n As to petitioner's contention that his eligibility for citizenship was preserved by the Savings Clause of the Act of 195211 because his naturalization petition was filed before the effective date of that Act:\n \n \n 16\n Shomberg v. United States, supra, is dispositive of that contention. It was there held that the Savings Clause did not prevent application of Section 318 to naturalization proceedings pending on the effective date of the 1952 Act and that an alien could not compel a final hearing on his naturalization petition prior to determination of deportation proceedings instituted after the effective date of the Act.\n \n \n 17\n For the reasons stated the Order of the District Court will be affirmed.\n \n \n \n Notes:\n \n \n 1\n The Opinion of the District Court is reported at 153 F. Supp. 651\n \n \n 2\n 8 U.S.C.A. § 1429, 66 Stat. 244\n \n \n 3\n 8 U.S.C.A. § 1251(a) (6) (C), 66 Stat. 204, 205\n \n \n 4\n See Note 2, supra\n \n \n 5\n 8 U.S.C.A. § 1101, note, 66 Stat. 280\n \n \n 6\n United States ex rel. Spinella v. Savoretti, 5 Cir., 1953, 201 F.2d 364, certiorari denied 345 U.S. 975, 73 S. Ct. 1124, 97 L. Ed. 1390. See also §§ 242(b), (c) and (d) of the Act of 1952, 8 U.S.C.A. § 1252 (b), (c) and (d), 66 Stat. 209-211\n \n \n 7\n 8 U.S.C. § 729(c), 64 Stat. 1015\n See Jew Sing v. United States, 9 Cir., 1953, 202 F.2d 715; Banks v. United States, 5 Cir., 1953, 204 F.2d 583; United States ex rel. Jankowski v. Shaughnessy, D.C.S.D.N.Y.1950, 93 F. Supp. 7, affirmed, 2 Cir., 1951, 186 F.2d 580; In re Kiseleff's Petition, D.C. S.D.N.Y.1955, 135 F. Supp. 314; In re Muniz, D.C.W.D.Pa.1956, 151 F. Supp. 173.\n \n \n 8\n Jew Sing v. United States, supra; Banks v. United States, supra; In re Kiseleff's Petition, supra; In re Muniz, supra\n \n \n 9\n Heikkila v. Barber, 1953, 345 U.S. 229, 73 S. Ct. 603, 97 L. Ed. 972\n \n \n 10\n 5 U.S.C.A. § 1009(b), 60 Stat. 243\n \n \n 11\n The Savings Clause of the Act of 1952 provides that nothing contained in the new Act \"unless otherwise specifically provided therein, shall be construed to affect * * * any status, condition, right in process of acquisition * * * done or existing, at the time this Act shall take effect\"\n \n \n ",
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| Third Circuit | Court of Appeals for the Third Circuit | F | USA, Federal |
2,595,290 | Madsen | 2003-06-05 | false | state-v-khounvichai | Khounvichai | State v. Khounvichai | null | null | null | null | null | null | null | null | null | null | null | null | 30 | Published | null | null | [
"69 P.3d 862"
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"opinion_text": "\n69 P.3d 862 (2003)\n149 Wash.2d 557\nSTATE of Washington, Respondent,\nv.\nViengmone KHOUNVICHAI, Petitioner.\nNo. 72412-1.\nSupreme Court of Washington, En Banc.\nArgued January 22, 2003.\nDecided June 5, 2003.\n*863 Nielsen, Broman & Assoc., Eric Nielsen, Seattle, WA, for Petitioner.\nNorm Maleng, King County Prosecutor, Randi Austell, Deputy, Seattle, WA, for Respondent.\nMADSEN, J.\nIn State v. Ferrier, we adopted the rule that when police officers seek entry into a home for the purpose of obtaining consent to a warrantless search of the home, they must, prior to entering, inform the person from whom consent is sought of the right to refuse consent to the search and of the right to limit the scope of the search. State v. Ferrier, 136 Wash.2d 103, 118, 960 P.2d 927 (1998). We granted review to determine whether the police must administer Ferrier warnings when seeking entry into a home to question a resident in the course of investigating a crime.\nWe hold that the Ferrier warnings are not required in this situation and reiterate that these warnings are required only when police officers seek entry to conduct a consensual search for contraband or evidence of a crime. We affirm the Court of Appeals.\n\nFACTS\nOn the night of January 30, 2000, two police officers were called to respond to a malicious mischief report. The complainant told the officers that a man named McBaine had been at her home, and shortly after he left, an object broke her window.\nThe officers proceeded to the address given by the complainant to question McBaine about the incident. They did not have probable cause to arrest McBaine but considered him a suspect. The officers knocked on the apartment door, and an occupant, Elizabeth Orr, answered. Officer Penwell asked Ms. Orr if McBaine was home and stated that she wanted to talk to him about the incident. Ms. Orr told the officer that McBaine was her grandson and that he was home, and she asked if he was in trouble. Officer Penwell told her that they just wanted to talk to him and requested entry. Ms. Orr replied \"oh, yes\" and waved the two officers inside.\nUpon entry, the officers noticed a man lying on the couch in the living room. For safety, Officer Penwell remained near the entry while Officer Bowman followed Ms. Orr down a hallway toward a closed bedroom door. Ms. Orr knocked and called, \"there is someone here to see you.\" When the door opened, the officers smelled marijuana. McBaine stepped out of the room and upon seeing the officers, turned and whispered something to two individuals in the room, one *864 of whom was the petitioner, Viengmone Khounvichai. Khounvichai made a sudden dash across the room and out of the officers' sight.\nConcerned that Khounvichai was going for a weapon, Officer Bowman ran into the bedroom where he saw Khounvichai reaching into a closet. The officer demanded that Khounvichai show his hands. When he failed to comply, the officer grabbed at his right hand. During the struggle that ensued, a baggie of white powder, later determined to be cocaine, fell out of Khounvichai's hand. The officers arrested Khounvichai. They also questioned McBaine about the malicious mischief incident.\nThe State charged Khounvichai in juvenile court with one count of possession of cocaine under RCW 69.50.401(d). At trial, Khounvichai moved to suppress the cocaine, arguing that Ms. Orr's consent was invalid under State v. Ferrier because she had not been warned of her right to refuse entry. He also argued that assuming consent was valid police exceeded the scope of that consent. The juvenile court denied the motion and found Khounvichai guilty at the conclusion of the fact finding hearing.\nThe Court of Appeals affirmed, holding that Ferrier warnings were not required, that Ms. Orr gave voluntary consent for the police entry, and that the police did not exceed the scope of Ms. Orr's consent. State v. Khounvichai, 110 Wash.App. 722, 42 P.3d 1000 (2002). Khounvichai sought review in this court on the sole question of whether Ms. Orr's consent to police entry was voluntary in the absence of Ferrier warnings.\nWe granted Khounvichai's petition for review.\n\nANALYSIS\nKhounvichai takes exception to the Court of Appeals' decision, which held that police were not required to give Ferrier warnings in this case because the officers sought consensual entry into Ms. Orr's home for the purpose of speaking to her grandson and not for the purpose of conducting a warrantless search. Khounvichai, 110 Wash.App. at 728, 42 P.3d 1000. He contends that police officers must advise a home dweller of the Ferrier warnings when requesting entry into a home to speak to a resident as part of a criminal investigation because a request for entry is a request to searchthe officers may obtain a confession from the resident or discover evidence of a crime or contraband through a plain view discovery.\nIn State v. Ferrier, this court considered the constitutional implications of a police procedure described as a \"knock and talk.\" The technique was employed by police to gain entry into a defendant's home for the purpose of obtaining consent to conduct a warrantless search. Ferrier, 136 Wash.2d at 107, 960 P.2d 927. Quoting police testimony, Ferrier explained the nature of a \"knock and talk\":\n\"You go to the door, knock on the door, make contact with the resident, ask if you can come in to talk about whatever the complaint happens to be....\n\"Once you're inside, you talk about why you're there and you ask for permission to search the premises.\"\nId. at 107, 960 P.2d 927.\nIn Ferrier, the police had uncorroborated information that Debra Ferrier was conducting a marijuana growth operation in her home. Id. at 106, 960 P.2d 927. Lacking the probable cause necessary to obtain a search warrant, officers admitted that they conducted a \"knock and talk\" in order to avoid the necessity of obtaining a warrant. Id. Dressed in black raid jackets, four officers proceeded to Ferrier's home and asked for her permission to enter. Id. at 107, 960 P.2d 927. Once inside, they informed Ferrier of their suspicions and asked for her consent to search the home and seize the marijuana. Id. at 108, 960 P.2d 927. The officers asked Ferrier to sign a \"consent to search\" form but did not advise Ferrier of her right to refuse to consent or of her rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Id.\nWe concluded that the \"knock and talk\" conducted under those circumstances violated Ferrier's state constitutional right to privacy in her home. Id. at 115, 960 P.2d *865 927. Article I, section 7 of the Washington Constitution, provides that \"[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.\" Const. art. I, § 7. The right to privacy includes the right to be free from warrantless searches, which are \"unreasonable per se.\" State v. Hendrickson, 129 Wash.2d 61, 70, 917 P.2d 563 (1996). Consent, however, is one of the narrow exceptions to the search warrant requirement, and the State bears the burden of establishing the exception. Id. at 71, 917 P.2d 563.\nWhile voluntary consent is an exception to the warrant requirement, we also recognized in Ferrier that to some degree it is inherently coercive whenever a police officer requests consent to search a home without a warrant:\n[W]e believe that the great majority of home dwellers confronted by police officers on their doorstep or in their home would not question the absence of a search warrant because they either (1) would not know that a warrant is required; (2) would feel inhibited from requesting its production, even if they knew of the warrant requirement; or (3) would simply be too stunned by the circumstances to make a reasoned decision about whether or not to consent to a warrantless search.\nFerrier, 136 Wash.2d at 115, 960 P.2d 927. Moreover, \"unlike a search warrant, a search resulting from a knock and talk need not be supported by probable cause, or even reasonable suspicion.\" Id. at 118, 960 P.2d 927.\nWe noted that the only way to protect the right against warrantless searches of the home is to require police to inform citizens of their right to refuse consent. Id. at 116, 960 P.2d 927. \"If we were to reach any other conclusion, we would not be satisfied that a home dweller who consents to a warrantless search possessed the knowledge necessary to make an informed decision. That being the case, the State would be unable to meet its burden of proving that a knowing and voluntary waiver occurred.\" Id. at 116-17, 960 P.2d 927. Accordingly, we held that \"article I, section 7 is violated whenever the authorities fail to inform home dwellers of their right to refuse consent to a warrantless search.\" Id. at 118, 960 P.2d 927. Thus:\n[W]hen police officers conduct a knock and talk for the purpose of obtaining consent to search a home, and thereby avoid the necessity of obtaining a warrant, they must, prior to entering the home, inform the person from whom consent is sought that he or she may lawfully refuse consent to the search and that they can revoke, at any time, the consent that they give, and can limit the scope of the consent to certain areas of the home. The failure to provide these warnings, prior to entering the home, vitiates any consent given thereafter.\nId. 118-19, 960 P.2d 927 (emphasis added).\nWe have since clarified that the Ferrier requirement is limited to situations where police request entry into a home for the purpose of obtaining consent to conduct a warrantless search and have declined to broaden the rule to apply outside the context of a request to search. See State v. Williams, 142 Wash.2d 17, 28, 11 P.3d 714 (2000) (Ferrier warnings not required where police request consent to enter a home to arrest visitor pursuant to a valid arrest warrant); State v. Bustamante-Davila, 138 Wash.2d 964, 981, 983 P.2d 590 (1999) (Ferrier warnings not required where police and agent of Immigration and Naturalization Services gained consensual entry to defendant's home to serve a presumptively valid deportation order).\nIn Williams, we noted that police often enter homes for investigative purposes, such as inspecting break-ins, vandalism, and other routine responses. 142 Wash.2d at 27, 11 P.3d 714. We found no constitutional requirement that officers warn of the right to refuse entry every time an officer enters a home to investigate because \"[t]o apply the Ferrier rule in these situations would unnecessarily hamper a police officer's ability to investigate complaints and assist the citizenry.\" Id. at 27-28, 11 P.3d 714.\nMoreover, as the State correctly contends, there is a fundamental difference between requesting consent to search a home and requesting consent to enter a home for other legitimate investigatory purposes. When police obtain consent to search a home pursuant *866 to a \"knock and talk\" they go through private belongings and affairs without restriction. Such an intrusion into privacy is not present, however, when the police seek consensual entry to question a resident. Furthermore, the requirements of Miranda, 384 U.S. at 478-79, 86 S.Ct. 1602, already serve to protect citizens from coercive questioning.\nWe adopted the Ferrier rule out of a concern that citizens may be unaware that a warrant to search is required or, if aware, may be too intimidated by an officer's presence in the home to deny consent to a warrantless search. As the State correctly emphasizes, the Ferrier warnings target searches and not merely contacts between the police and individuals. In sum, when police seek to conduct a warrantless search of the home, the Ferrier warnings achieve their purpose; when police officers seek entry to question a resident, the home is merely incidental to the purpose.\nKhounvichai also urges that Ferrier applies in this case because a police officer's request to enter a home to talk to an occupant about an alleged offense has the same result as a request to enter to searcha warrantless \"search\" for anything in plain view. Khounvichai relies on State v. Kennedy to support his contention. 107 Wash.App. 972, 977, 29 P.3d 746 (2001).\nIn Kennedy, police officers received a complaint that a narcotics transaction was in progress in a local motel room. Id. at 973, 29 P.3d 746. Police officers went to the room and heard sounds consistent with drug activity. Id. When the officers knocked on the door, Kennedy answered. The police identified themselves, explained that they had received a complaint about the room, and requested permission to enter. Id. Kennedy consented to their entry. Once inside, the officers saw contraband in plain view. Id.\nThe court held that Ferrier warnings were required given that \"the sole reason for the officers' visit ... was to investigate a narcotics complaint\" currently occurring in the room. Id. at 977, 29 P.3d 746. The officers testified that they did not believe that they had probable cause to support a search warrant and that they \"probably\" would have asked for consent to search the room once they entered. Id. The court reasoned that receiving consent to enter a residence is indistinguishable from receiving consent to search because a request for permission to enter is, in effect, \"a request for permission to `search' for anything in plain view.\" Id.\nIn this case, the Court of Appeals distinguished Kennedy on its facts, noting that it did not read the decision as requiring Ferrier warnings whenever the police enter a home to question a resident as part of a legitimate investigation. Khounvichai, 110 Wash.App. at 729, 42 P.3d 1000. While Kennedy may be distinguishable, the court's reasoning is troubling and must be addressed.\nIt is well established that a discovery made in plain view is not a search. Article I, section 7 \"[does] not prohibit a seizure without a warrant, where there is no need of a search, and where contraband subject-matter or unlawful possession of it is fully disclosed and open to the eye and hand.\" State v. Miller, 121 Wash. 153, 154, 209 P. 9 (1922); see also 12 Royce C. Ferguson, Washington Practice, Criminal Practice and Procedure § 2404 (2d ed. 1997) (\"Every observation by a law enforcement officer does not necessarily amount to a search within the meaning of the Fourth Amendment. The police may take note of anything that is evident to the senses, as long as they are in a place where they have the right to be.\"). The plain view discovery of evidence does not violate Article I, section 7 if the police officer has a prior justification for the intrusion and the officer immediately recognizes that he has evidence before him. State v. O'Neill, 148 Wash.2d 564, 62 P.3d 489, 500 (2003); State v. Hudson, 124 Wash.2d 107, 114, 874 P.2d 160 (1994). Thus, if an officer observes evidence of a crime or contraband in plain view, he has not conducted a search. Khounvichai's reliance on Kennedy to support his position that every entry potentially involves a plain view \"search\" is unavailing.\nLastly, Khounvichai argues that public policy is advanced by applying the Ferrier rule whenever a police officer requests entry into a home to speak to a resident in the course of a criminal investigation. He points out that *867 circumstances may change after the officer enters, but the officer will be precluded from requesting consent to search because he failed to give the Ferrier warnings prior to entry.\nKhounvichai's argument is not persuasive. As noted earlier, warrantless searches are per se unreasonable. If an officer fails to warn prior to entering, but once inside desires to search, he must first obtain a search warrant. Of course, no warrant is required if another exception to the warrant requirement justifies a warrantless search.\n\nCONCLUSION\nThe Ferrier rule applies to situations where police seek entry to a home to conduct a warrantless search for contraband or evidence of a crime. Williams, 142 Wash.2d at 27-28, 11 P.3d 714. As this Court stated in Williams, \"[w]e do not find it prudent or necessary to extend Ferrier to require that police advise citizens of their right to refuse entry every time a police officer enters their home.\" Id. at 27, 11 P.3d 714. Likewise, we do not find it prudent or necessary to require that police officers warn citizens of the right to refuse consent to search when they request entry into a home merely to question or gain information from an occupant. Such an extension of Ferrier does not further the constitutional reasons for the warnings and may unnecessarily frustrate police investigations.\nIn this case, the police sought entry into Ms. Orr's home in order to speak to her grandson about breaking a window. Ferrier warnings were not required because the officers did not enter for the purpose of obtaining consent to a warrantless search. The Court of Appeals is affirmed.\nALEXANDER, C.J., and IRELAND, BRIDGE, CHAMBERS, OWENS, and FAIRHURST, JJ., concur.\nSANDERS, J. (dissenting).\nLet us return to first principles. Article I, section 7 of the Washington Constitution states, \"No person shall be disturbed in his private affairs, or his home invaded, without authority of law.\" At issue here is Mr. Khounvichai's right not to be disturbed in his private affairs and Ms. Orr's right not to have her home invaded.\nOnly when officers of the law have a warrant or when there are exigent circumstances or when there is another narrow exception to the warrant requirement are police officers vested with the authority of law requisite to enter a private residence.[1]See State v. Ladson, 138 Wash.2d 343, 350, 979 P.2d 833 (1999). Consent to enter a dwelling is a narrowly drawn exception to the warrant requirement and the burden is on the State to prove that consent. State v. Ferrier, 136 Wash.2d 103, 111, 960 P.2d 927 (1998) (citing State v. Hendrickson, 129 Wash.2d 61, 72, 917 P.2d 563 (1996)). In Ferrier we concluded that an essential element of consent is knowledge of the right to refuse consent. Id. at 116, 960 P.2d 927 (citing State v. Johnson, 68 N.J. 349, 346 A.2d 66, 68 (1975)). Ferrier warnings provide people with this knowledge.\nUnlike the majority, our state constitution does not distinguish between warrantless invasion of a home or interference with personal affairs based upon the subjective intent of police officers. But the majority argues Ferrier warnings apply only when police officers intend to search a residence rather than simply invade it. \"[T]here is a fundamental difference between requesting consent to search a home and requesting consent to enter a home for other legitimate investigatory purposes.\" Majority at 865. Thus, claims the majority, when police officers seek warrantless access to a residence, Ferrier warnings are not required if the police officers later testify that there was no intent to search. This distinction is quite arbitrary as *868 it cannot be based on language in the constitutional text which pertains to \"invasion\" of the home without regard to the activity that may be undertaken after the threshold is crossed.\nThe United States Supreme Court has held that application of the Fourth Amendment does not turn on the subjective intent of law enforcement officers. Bond v. United States, 529 U.S. 334, 339 n. 2, 120 S.Ct. 1462, 146 L.Ed.2d 365; Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (stating that \"we have been unwilling to entertain Fourth Amendment challenges based on the actual motivations of individual officers\"); California v. Ciraolo, 476 U.S. 207, 212, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986) (rejecting respondent's challenge to \"the authority of government to observe his activity from any vantage point or place if the viewing is motivated by a law enforcement purpose, and not the result of a casual, accidental observation\"). Nor can I discern any principled reason why this court should judge a warrantless search of a home based on the subjective intention of police officers. I posit that the subjective intent of an individual cannot substitute for the authority of law referenced in article I, section 7.\nThe purpose of article I, section 7 is to limit invasion of privacy to those invasions with authority of law. The purpose of Ferrier is to protect individuals against the inherently coercive nature of a police officer's request to enter a residence under the limited consent exception to the warrant requirement. Ferrier, 136 Wash.2d at 118, 960 P.2d 927. The reasons for adopting Ferrier were quoted by the majority and because of their importance I reiterate them:\n[W]e believe that the great majority of home dwellers confronted by police officers on their doorstep or in their home would not question the absence of a search warrant because they either (1) would not know that a warrant is required; (2) would feel inhibited from requesting its production, even if they knew of the warrant requirement; or (3) would simply be too stunned by the circumstances to make a reasoned decision about whether or not to consent to a warrantless search.\nFerrier, 136 Wash.2d at 115, 960 P.2d 927. The Ferrier court also pointed out, \"[c]entral to our holding is our belief that any knock and talk is inherently coercive to some degree.\" Id. The intent of Ferrier was to protect against coercion, not to parse the subjective intent of police officers.\nThis court revisited Ferrier in the context of federal agents who in good faith believed they were authorized to make an arrest pursuant to an Immigration and Naturalization Service deportation order. State v. Bustamante-Davila, 138 Wash.2d 964, 983 P.2d 590 (1999). In Bustamante-Davila we reasoned that because police officers and federal agents sought entry to make an arrest, it was not necessary to provide Ferrier warnings. Id. at 983-84, 983 P.2d 590. But with Mr. Khounvichai the police officers had no order, arrest warrant, or other authority of law directing officers to take him into custody.\nIn Williams a warrant was issued for Williams's arrest and police officers were told by an informant where Williams was staying. State v. Williams, 142 Wash.2d 17, 19, 11 P.3d 714 (2000). Upon informing the tenant that they had a warrant for Williams's arrest, the police officers were granted permission to enter the apartment. Id. at 20, 11 P.3d 714. This court held that Williams lacked standing to claim an unconstitutional search. Id. at 23, 11 P.3d 714. The opinion then added in dicta that even if standing were present, possession of an arrest warrant provided the necessary authority of law to enter the dwelling. Id. at 23-24, 11 P.3d 714. Ferrier warnings were not necessary.\nIn both Williams and Bustamante-Davila police officers sought entry to a residence to arrest an occupant pursuant to an order or warrant. The United States Supreme Court has held that an arrest warrant \"authorizes a limited invasion of that person's privacy interest when it is necessary to arrest him in his home.\" Steagald v. United States, 451 U.S. 204, 214 n. 7, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981). The officers in Williams and Bustamante-Davila had a legal duty to be at the residence. In contrast, the police officers in Ferrier and here had no *869 search warrant or arrest warrant. Ferrier, 136 Wash.2d at 107, 960 P.2d 927; majority at 863. Thus there was simply no authority of law to enter Ms. Orr's residence. Rather police officers went to Ms. Orr's residence as the result of an investigatory hunch that did not meet probable cause. Absent authority of law, informed consent is necessary to invade Ms. Orr's home.\nTo reach this result we would not have to overrule Williams because the exceptions to Ferrier identified in Williams are not present here. Those exceptions involve circumstances where police officers are either explicitly or implicitly invited because they are involved in \"routine responses,\" such as investigating a break-in, vandalism, or other crime against the home dweller. Williams, 142 Wash.2d at 27, 11 P.3d 714. In a \"routine response,\" police are responding to either a direct request or an indirect request for their presence or assistance. Under these circumstances police are explicitly or implicitly invited into a home and true consent is more readily apparent. However when police officers arrive on their own initiative there is no invitation for them to enter the premises. In that case they should either (1) ask their questions at the door, or (2) give Ferrier warnings to assure consent is informed and therefore voluntary prior to entering the residence, or (3) obtain a search warrant or other authority of law. The argument that police officers would have to give Ferrier warnings with every routine visit and that they would be greatly impeded in their capabilities is illusory; however, more fundamentally, the purpose of article I, section 7 is not for police convenience but, quite the contrary, for protection of individual privacy.\nThe Court of Appeals in Kennedy recognized that the distinction between consent to enter and consent to search is not persuasive because once officers have access to a home they can seize what is in plain view. State v. Kennedy, 107 Wash.App. 972, 977, 29 P.3d 746 (2001). The majority criticizes the reasoning of the Kennedy opinion as \"troubling,\" claiming a seizure in plain view is by definition not a search. Majority at 866. Thus, the majority reasons that when officers utilize plain view they are not requesting consent to search and Ferrier need not apply.\nHowever the majority's fallacy overlooks what is in plain view is only apparent because of the warrantless entry. The plain view doctrine is necessarily limited to the lawful vantage point of the viewer. \"The doctrine requires that the officer had a prior justification for the intrusion....\" State v. O'Neill, 148 Wash.2d 564, 582-83, 62 P.3d 489 (2003); State v. Hudson, 124 Wash.2d 107, 114, 874 P.2d 160 (1994). Because there was no prior justification to intrude Ms. Orr's home, the plain view exception to the warrant requirement is not applicable.\nMoreover it is crucial to protect against the invasion of privacy. Many individuals may not be aware of the police officers' power of plain view seizure. This \"power\" is another reason why a Ferrier analysis must hinge on access to the residence rather than subjective intent of police officers to search or not.\nThe majority engages in semantics when it asserts that a plain view search is not a search, thus completely exempting it from Ferrier. I agree with Kennedy that the \"officers' request for permission to enter is, in effect, a request for permission to `search' for anything in plain view,\" and I can think of no reason why the home dweller should not be informed of his right to refuse \"consent\" to entry. Kennedy, 107 Wash.App. at 977, 29 P.3d 746.\nThis court has held, \"[i]n no area is a citizen more entitled to his privacy than in his or her home.\" State v. Young, 123 Wash.2d 173, 185, 867 P.2d 593 (1994).\nI stand by that constitutional principle and therefore dissent.\nJOHNSON, J., concurs with SANDERS, J.\nNOTES\n[1] \"The warrant requirement is especially important under article I, section 7, of the Washington Constitution as it is the warrant which provides the `authority of law' referenced therein.\" State v. Ladson, 138 Wash.2d 343, 350, 979 P.2d 833 (1999) (citing City of Seattle v. Mesiani, 110 Wash.2d 454, 457, 755 P.2d 775 (1988)). The exceptions to the warrant requirements are \"`\"jealously and carefully drawn\"'\" and not to be expanded upon lightly. Id. at 349, 979 P.2d 833 (quoting State v. Hendrickson, 129 Wash.2d 61, 69-70 n. 1, 917 P.2d 563 (1996) (quoting State v. Houser, 95 Wash.2d 143, 149, 622 P.2d 1218 (1980))).\n\n",
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| Washington Supreme Court | Washington Supreme Court | S | Washington, WA |
483,572 | Davis, Jolly, Williams | 1987-03-11 | false | prodliabrepcchp-11375-johnnie-rex-johnson-v-michelin-tire | null | prod.liab.rep.(cch)p 11,375 Johnnie Rex Johnson v. Michelin Tire Corporation | Johnnie Rex JOHNSON, Plaintiff-Appellee, v. MICHELIN TIRE CORPORATION, Defendant-Appellant | Jack Pew, Jr., Dallas, Tex., Scott, Hulse, Marshall, Feuille, Finger & Thurmond, James L. Gallagher, El Paso, Tex., for defendant-appellant., Charles A. Deason, Jr., El Paso, Tex., for plaintiff-appellee. | null | null | null | null | null | null | null | null | null | null | 5 | Published | null | <parties id="b294-8">
Johnnie Rex JOHNSON, Plaintiff-Appellee, v. MICHELIN TIRE CORPORATION, Defendant-Appellant.
</parties><br><docketnumber id="b294-11">
No. 86-1181.
</docketnumber><br><court id="b294-12">
United States Court of Appeals, Fifth Circuit.
</court><br><decisiondate id="b294-14">
March 11, 1987.
</decisiondate><br><attorneys id="b296-10">
<span citation-index="1" class="star-pagination" label="202">
*202
</span>
Jack Pew, Jr., Dallas, Tex., Scott, Hulse, Marshall, Feuille, Finger & Thurmond, James L. Gallagher, El Paso, Tex., for defendant-appellant.
</attorneys><br><attorneys id="b296-11">
Charles A. Deason, Jr., El Paso, Tex., for plaintiff-appellee.
</attorneys><br><judges id="b296-13">
Before WILLIAMS, JOLLY and DAVIS, Circuit Judges.
</judges> | [
"812 F.2d 200"
]
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"opinion_text": "812 F.2d 200\n Prod.Liab.Rep.(CCH)P 11,375Johnnie Rex JOHNSON, Plaintiff-Appellee,v.MICHELIN TIRE CORPORATION, Defendant-Appellant.\n No. 86-1181.\n United States Court of Appeals,Fifth Circuit.\n March 11, 1987.\n \n Jack Pew, Jr., Dallas, Tex., Scott, Hulse, Marshall, Feuille, Finger & Thurmond, James L. Gallagher, El Paso, Tex., for defendant-appellant.\n Charles A. Deason, Jr., El Paso, Tex., for plaintiff-appellee.\n Appeal from the United States District Court for the Western District of Texas.\n Before WILLIAMS, JOLLY and DAVIS, Circuit Judges.\n E. GRADY JOLLY, Circuit Judge:\n \n \n 1\n Michelin appeals the judgment in favor of Johnnie Rex Johnson for damages resulting from an accident allegedly caused by a defective tire. The jury found that a manufacturing defect in the tire caused the accident and awarded $824,676 to Johnson. On appeal Michelin contends that neither the jury's findings on liability nor its award of damages is supported by the evidence.\n \n \n 2\n * A.\n \n \n 3\n We first look to Johnson's background of previous injuries and previous earnings. From 1970 to 1978, Johnson lived in Houston and worked in the construction industry. In 1978 he moved to El Paso where he started Gulf Seafood Company, which sold seafood to restaurants in the area. In that business, Johnson drove to the Texas coast each day and brought seafood back to El Paso. Except for his own unsupported statement, Johnson offered no evidence that Gulf Seafood was a thriving business; although Johnson testified that the company made money, he was unable to say how much because, he said, his wife handled the financial part of the business. There was evidence, however, that several of the company's trucks were repossessed for nonpayment of loans.\n \n \n 4\n Sometime in 1982, Johnson sold Gulf Seafood and moved to Cloudcroft, New Mexico, where his wife had a beauty salon which, according to Johnson, made over $100,000 per year. In Cloudcroft, Johnson became acquainted with Jimmy Herrell, a real estate broker. Johnson, who was not employed then, was interested in selling real estate with Herrell, and to that end enrolled in a real estate course in Las Cruces.\n \n \n 5\n In May 1983, when Johnson was returning from a class in Las Cruces, he crashed his car into a telephone pole while driving at approximately 100 miles per hour. The crash threw Johnson from the car for over 150 feet. He was taken to a hospital where he was treated, and released about two weeks later. Blood tests performed at the hospital revealed that Johnson was intoxicated at the time of the accident. Three weeks after his discharge from the hospital, Johnson was readmitted following a fall in the bathtub in which he had broken a bone in his neck. According to a summary of the testimony of Dr. Bruce San Filippo, a neurosurgeon and Johnson's treating physician after the 1983 accidents, Johnson suffered a skull fracture with significant brain damage, and as a result was confused and disoriented. Johnson also suffered from facial paralysis and difficulties with movement on the left side of his body, and had a short attention span. Dr. San Filippo further testified that problems resulting from the accidents continued for more than a year and were unlikely to improve substantially.\n \n \n 6\n At trial, Herrell testified concerning Johnson's condition after the 1983 accidents. In the summer of 1983, Johnson worked for Herrell by handing out brochures and answering visitors' questions at Herrell's real estate development in Cloudcroft. For this work Herrell gave Johnson a check for $500. This is the only job Johnson held in Cloudcroft after the 1983 accidents. At that time he still had difficulty with his speech and with movement, especially in his left hand; according to Herrell, however, Johnson was capable of certain job functions. After his job with Herrell ended in September 1983, Johnson moved back to El Paso. There he sought employment with stock brokerage houses and life insurance companies. He was never offered such employment, however, as he apparently could not pass the qualifying examinations necessary for those positions. He did obtain work with Sir Speedy Printing in El Paso, but left that job after about one week because of his poor health. In August 1984, Herrell again saw Johnson and stated that he \"looked real good,\" had gained weight, and was making progress. He did, however, continue to walk with a limp.\n \n B.\n \n 7\n With respect to the accident that is the subject of this lawsuit, on September 12, 1984, Johnson was driving on a four-lane highway in El Paso when his car, equipped with four-year-old Michelin tires, crossed two lanes and hit the guard rail. Johnson has no memory of the accident. Lisa Uranga was traveling at about 50-55 mph behind Johnson and saw his vehicle swerve sharply to the right. At trial, Uranga testified that she did not hear any loud noise or see any debris on the highway that Johnson's car could have hit. She stated that she did not notice dust or an explosion at the right rear tire, but that she was not looking at that area of the car.\n \n \n 8\n Johnson was unconscious when Uranga arrived at the car. He was still unconscious when emergency medical personnel arrived and he did not respond to verbal or painful stimuli. Johnson later regained consciousness but was not coherent. He was taken to a hospital where tests revealed a skull fracture, and multiple abrasions and lacerations. By the following day he was oriented and lucid and able to move around on his own.\n \n \n 9\n At trial, Johnson offered the testimony of Dr. Arthur C. Bieganowski, a physician who had completed residencies in both neurology and psychiatry, and who was recommended to Johnson by a chiropractor he had been seeing after the 1984 accident. Bieganowski testified that Johnson complained of not being able to \"get his life together\"; he had lost his sense of smell and had a constantly stuffy nose; and the paralysis on the left side of his body caused some pain and left him with poor balance. He also suffered from vertigo, memory lapses, poor eyesight and impaired concentration. Bieganowski referred Johnson for psychological, neurological and vocational testing. From these tests, Bieganowski concluded that Johnson had suffered some brain damage and was not then employable. Based on his review of Johnson's medical records, Bieganowski stated that at the time of the 1984 accident, Johnson was recovering from the 1983 accidents. Although Johnson still suffered from the effects of the 1983 accidents, the 1984 accident had impaired his ability to make decisions and made him emotionally labile. According to Bieganowski, Johnson is now unable to live alone and take care of himself and, because more than a year has passed since the 1984 accident, Johnson's condition is not likely to improve.\n \n \n 10\n Bieganowski also testified with regard to damages. He reviewed the medical bills relating to the 1984 accident, and stated that the amount, $4,676.40, was reasonable. Bieganowski testified that the cost of the custodial care that Johnson would need would be $8,000 to $10,000 a year and that future psychiatric care would cost from $1,000 to $2,000 a year.\n \n C.\n \n 11\n Several witnesses testified at trial regarding the cause of the accident.1 Before we recount their testimony, we note that the right rear tire had three openings: one that was disregarded by the parties as unrelated to the cause of the accident; a second, V-shaped opening, which we will refer to as \"the cut\"; and the third opening, which we will refer to as \"the tear.\"\n \n \n 12\n The police officer who investigated the accident, Ricardo Saucedo, testified that he located two skid marks at the scene. The marks were four feet apart in the lane of the highway in which Johnson was originally driving, and approximately nine feet apart at the guard rail. The left mark was an unbroken smudge; the right skid mark, however, was striped or chevron-shaped. Saucedo stated that his training and experience in accident investigation led him to the conclusion that the two marks were made by the front left and right rear tires respectively, and that the right rear tire, as evidenced by the distinctive striped marks, had blown out. He also testified that he saw no debris in the highway and that the right rear tire of the car was flat.\n \n \n 13\n Lawrence R. Sperberg, the plaintiff's expert, testified that the marks were made by the two rear tires,2 the right rear tire being flat at the time. He stated that the right rear tire had no \"run flat\" damage, characteristic of a tire that has rolled while flat, because the car traveled only fifty to sixty feet before stopping at the guard rail. It was his opinion that the right rear tire blew out at the tear, shifting the car's weight from right to left and causing the veer to the right.3 According to Sperberg, the blowout was the result of a separation of the tire's polyester cords from the rubber of the tire, caused by the presence of excess oxidation. He testified that tires contain antioxidants to prevent the accumulation of oxygen in the tire, because oxygen causes the tire to separate. His testing of parts of the tire on an electron microscope revealed excessively high levels of oxygen that could have been caused either by a defective design that included too little antioxidant, or by defective manufacture that allowed the tire to be contaminated with oxygen during the manufacturing process. He stated that the cut occurred after the tire had deflated and was not a cause of the accident.\n \n \n 14\n Emanuel Zambalas, a product analyst engineer employed by Michelin, testified for Michelin and as an adverse witness for Johnson. He stated that the cut could have occurred only while the tire was inflated and was caused by the tire hitting debris that was caused by the impact of hitting the guard rail. His opinion was based on his examination of the tire which showed cut and frayed cords at the cut area rather than just frayed cords which would be present at a blowout. Zambalas further stated that a single tear does not evidence a blowout; a blowout occurs when a bubble of air bursts inside the rubber of the tire and leaves multiple tears rather than a single tear. He also stated that a separation such as that suggested by Sperberg would occur in the early life of a tire.\n \n \n 15\n Donald J. Basham, an accident reconstructionist, also testified for Michelin. He discussed the effects of kinetic energy on a vehicle making a turn, and concluded that the skid marks were made by the two left tires. He conjectured that the tire in question went flat only after the accident, as a result of hitting the guard rail. According to Basham, the chevron-stripe marks indicated an inflated tire; a deflated tire will leave gouge marks on the highway and will also suffer \"run flat\" damage, which was not present but should have been if the tire had crossed two lanes of a highway while flat.\n \n \n 16\n Michelin also produced Robert Villagrana, a failure analyst for manufacturers of various products. He testified that all tires do and must contain oxygen; whether such oxygen is detrimental, however, depends on its molecular makeup. Although Sperberg's electron-microscope tests could measure the presence of oxygen, they could not, according to Villagrana, identify the molecular makeup of that oxygen that would detrimentally affect the tire. He did, however, test new Michelin tires on an electron microscope and found low levels of oxygen, but reiterated that, from the type of tests performed by Sperberg and himself, no conclusion could be drawn as to whether the oxygen was detrimental. Villagrana further contended that Sperberg's specimens were contaminated and the results of Sperberg's tests were therefore inaccurate. Villagrana's specimens, which were from new tires and not the tire in question, were also contaminated, however, because the technique necessary to purify the rubber in a tire is not available.\n \n II\n \n 17\n The jury found, in special interrogatories, that the tire was not defectively designed, but that it was defectively manufactured by Michelin, and that the defect was a producing cause of the accident. The jury also found that Johnson was not negligent. The jury awarded $14,676 for past necessary medical and hospital care and medication; $25,000 for past mental anguish, physical pain, loss of enjoyment of life and physical impairment; $60,000 for future mental anguish, physical pain, loss of enjoyment of life and physical impairment; $15,000 for past loss of earnings; $280,000 for future loss of earning capacity; and $430,000 for future necessary medical and hospital care and medication. The jury did not award damages for past or future disfigurement. Following the verdict, Michelin moved for judgment notwithstanding the verdict on the grounds that the evidence did not support the jury's finding of liability or the award of damages for past medical care, future medical care, past loss of earnings, future loss of earning capacity and future pain and suffering. Michelin also moved for a new trial on the same grounds, and on the ground that the district court had erred in allowing admission of testimony regarding a congressional study of the tire industry. The district court denied both motions. This appeal followed.\n \n III\n \n 18\n Michelin contends that Johnson failed to produce sufficient credible evidence to support the jury's verdict finding Michelin liable. Our consideration of a challenge to the sufficiency of the evidence is governed by the familiar test of Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969):\n \n \n 19\n On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence--not just that evidence which supports the non-mover's case--but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury.\n \n \n 20\n Furthermore, Boeing makes it clear that it is the task of the jury and not this court to \"weigh conflicting evidence and inferences and determine the credibility of witnesses.\" Id. at 375.\n \n \n 21\n Under Texas law, which is applicable in this diversity case:\n \n \n 22\n To recover for a manufacturing defect under strict liability, the plaintiff must show a manufacturing flaw which renders the product unreasonably dangerous; that the defect existed at the time the product left the seller, and that the defect was the producing cause of the plaintiff's injuries. Restatement (Second) of Torts, sec. 402A (1965).\n \n \n 23\n Fitzgerald Marine Sales v. Le Unes, 659 S.W.2d 917, 918 (Tex.Ct.App.1983). Therefore, according to its verdict, the jury found that when the tire left Michelin it was contaminated with excess oxygen, rendering it unreasonably dangerous, and that the defect resulted in a blowout which was the producing cause of the accident.\n \n \n 24\n First, Michelin argues that Johnson failed to establish that a blowout occurred. Such a failure of proof would be fatal to Johnson's case because he proceeds on the theory that the accident was caused by the blowout of a tire, resulting from a manufacturing defect. Proof of a blowout is therefore a critical element of Johnson's claim, and attacking this proof is central to Michelin's appeal. According to Michelin, \"undisputed\" evidence established that a cut and not a blowout deflated the tire. Certainly Michelin's expert, Zambalas, testified that because of the strength of the rubber in the tire and the force necessary to make the cut, the cut could only have been made when the tire was inflated. This testimony was disputed in several ways, however. First, Sperberg, Johnson's expert, was aware that a cut had been made on the tire and yet did not withdraw his opinion that a blowout caused the tire to deflate since his testimony was based on the tear in the tire, not the cut. When questioned on cross-examination regarding the cut, Sperberg stated that it must have occurred after the blowout. Second, Zambalas testified that, in his opinion, the tire was cut by debris from the crash. Both witnesses at the scene of the accident, however, testified that they did not see debris in the highway after the accident.\n \n \n 25\n With respect to the tear, Zambalas testified that it was not characteristic of an opening caused by a separation. This testimony was also disputed, however, by Sperberg's opinion that the opening did indicate that it was caused by a separation.\n \n \n 26\n Additionally, Michelin contends that Sperberg's theory that a blowout occurred is not credible in view of the testimony of Basham, its accident reconstructionist, who criticized the diagrams and measurements made by Officer Saucedo at the accident scene, upon which Sperberg relied. According to Basham, Saucedo's diagram could not reflect the location of the skid marks. Basham altered the measurements made by Saucedo to conform to his opinion of the proper alignment of the skid marks and then based his theory of causation on his diagram. Basham's testimony was only his opinion, additional evidence to be weighed by the jury. That the jury apparently chose to believe Saucedo's measurements and therefore Sperberg's testimony, based on those measurements, is not unreasonable. We note that the jury could have been influenced by Saucedo's neutral position in the lawsuit and by the fact that his diagram, which was approved by a superior officer, was made on the basis of his firsthand view of the site soon after the accident. A reasonable jury was therefore entitled to believe that the tire blew out.4\n \n \n 27\n Second, Michelin argues that Johnson failed to establish that deflation of the tire, even if the result of a blowout, was caused by a manufacturing flaw. Under Texas law, a manufacturing defect can be established by circumstantial evidence. Turner v. General Motors Corp., 584 S.W.2d 844, 848 (Tex.1979). Here Sperberg expressed his opinion that excess oxygen or insufficient antioxidant was introduced into the tire during the manufacturing process. He explained that the effect of excess oxygen is to separate the polyester cords from the rubber, causing a separation that, in this case led to the blowout. His testimony that a malfunction occurred, along with the direct evidence of the tire itself, is sufficient evidence that a manufacturing defect existed when the tire left Michelin. See General Motors Corp. v. Hopkins, 548 S.W.2d 344, 350 (Tex.1977).\n \n \n 28\n Michelin contends, however, that Sperberg's opinion that a manufacturing defect led to a separation that caused the blowout is not entitled to any weight as its credibility was undermined by the testimony of Michelin's witnesses. In support of its argument, Michelin relies on the testimony of two of its three expert witnesses. We have already discussed Zambalas' testimony and concluded that a jury was entitled to reject his opinion that the tear was not characteristic of a separation or blowout in favor of testimony favorable to Johnson.\n \n \n 29\n Additionally, Villagrana testified that Sperberg's electron microscope tests are not reliable. Again, this testimony does not rise to the level of an absolute truth that must be accepted by the jury. Sperberg testified that as a result of his tests, he determined that the tire in question had excessive levels of oxygen that made the tire dangerously defective. Villagrana, although questioning Sperberg's testing methods, acknowledged that the electron microscope could accurately test the levels of oxygen in an uncontaminated tire specimen. It is true that Villagrana testified, apparently without dispute, that the electron microscope would not detect the detrimental effect of oxygen on the tire. Villagrana, however, never tested the tire in question and thus, although Michelin attempted an explanation as to why the tire in question contained high levels of oxygen, the fact that it contained high levels of oxygen is undisputed. The jury was free to reject all or part of Villagrana's testimony. In this case, the jury could have rejected Villagrana's criticism of Sperberg's tests and accepted the testimony that Villagrana's electron microscope testing revealed low levels of oxygen in new Michelin tires.\n \n \n 30\n We hold that this evidence on the record before us is sufficient to support the jury's finding of liability for a manufacturing defect.\n \n IV\n \n 31\n Michelin finally contends that four of the elements5 of damages awarded by the jury are excessive and that the district court erred in refusing to grant a remittitur, or, in the alternative a new trial on the issue of damages. A strong showing of excessiveness is required to warrant a remittitur; only \"when a jury's award exceeds the bounds of reasonable recovery\" will we grant a remittitur or order the district court to do so. Dixon v. International Harvester Co., 754 F.2d 573, 590 (5th Cir.1985). The district court's denial of a motion for a new trial is reviewable only for abuse of discretion. See id. at 586.\n \n A.\n \n 32\n The jury returned a verdict of damages for past medical expenses in the amount of $14,676.00. The undisputed evidence, however, established that past medical expenses were in the amount of $4,676.40. Because the proof was so clear, we hold that the jury's award \"exceeds the bounds of reasonable recovery.\" Dixon, 754 F.2d at 573. Therefore we order a remittitur in the amount of $9,999.60.\n \n B.\n \n 33\n According to its verdict, the jury determined that Johnson was entitled to $15,000 in damages for \"such loss of earnings, if any, that he has sustained since September 12, 1984 until the date of this trial.\" The jury was instructed, however, not on actual loss of earnings, but rather on past lost earning capacity.6 The distinction is significant because under Texas law, the burden of proof for the two types of damages is different. See Bailey v. Merrill, 582 S.W.2d 489, 491 (Tex.Civ.App.--Beaumont 1979, writ ref'd n.r.e.); Ryan v. Hardin, 495 S.W.2d 345, 349-50 (Tex.Civ.App.--Austin 1973, no writ). We need not determine which measure of damages was used, however, because Johnson meets neither burden.\n \n \n 34\n In Home Interiors & Gifts, Inc. v. Veliz, 695 S.W.2d 35 (Tex.App.1985), the jury returned a verdict for damages for \"loss of earnings in the past.\" The plaintiff had presented proof that prior to his accident he worked as a carpenter's assistant and as a vehicle transport driver, but he did not show the hours he worked or the wages he was paid on these jobs. On appeal, the jury verdict was reversed because the plaintiff had failed to meet his \"burden of proving his entitlement for reimbursement for lost wages in the past.\" Id. at 42. The court held that the evidence was insufficient to support the verdict because the plaintiff did not establish his hours and wages prior to the accident; additionally, \"the scant evidence regarding [the plaintiff's] work history prior to the accident does not indicate his employability or, if he had been employed, his employment stability during the period of time between the date of accident and the date of trial.\" Id.\n \n \n 35\n Applying the reasoning of Home Interiors, we must reverse any damage award for past lost earnings. The evidence shows that Johnson held two jobs after the 1983 accidents: he handed out brochures at a real estate development, for which he was paid $500, and he worked for approximately one week at Sir Speedy Printing. He attempted to work as a stock broker or insurance salesperson, but apparently was not offered employment because he was unable to pass the preliminary examinations. As in Home Interiors, the plaintiff here has not met his burden of establishing any basis for determining how much, if any, he lost in earnings between the accident and trial. Although we know that Johnson was paid $500 for his work for Herrell prior to the 1984 accident, we do not know how many hours he worked although that amount appears to have been his total salary for several months' work. Additionally, his \"scant work history,\" particularly his inability to maintain his job at Sir Speedy, indicates that he was not employable before the 1984 accident. A damages award for past lost earnings should represent a measurement of what a person would have earned during a given time period based on what he has earned in the past. Here Johnson has failed to adduce evidence that he would have earned anything had he not been injured in the 1984 accident. For these reasons, a verdict for lost past earnings is not supported by the record.\n \n \n 36\n Michelin also contends that Johnson failed to introduce the proof required for recovery of damages for loss of earning capacity. In Bonney v. San Antonio Transit Co., 160 Tex. 11, 325 S.W.2d 117 (1959), the plaintiff proved that he had owned a watch-repair business before his accident. After the accident, he could no longer repair watches. He then sold his business and obtained a job as assistant manager of a jewelry store, for which he received a salary of $75 a week. Based on this evidence, the jury awarded damages for impairment of earning capacity before trial and in the future. On appeal, the Texas Supreme Court stated:\n \n \n 37\n The rule in this jurisdiction is that where a plaintiff seeks damages for impairment of earning capacity, he must prove the amount of such damages with the degree of certainty to which it is susceptible.... This rule requires that a plaintiff introduce evidence from which a jury may reasonably measure in monetary terms his earning capacity prior to injury, unless some reason appears for his failure to do so. The reason for this rule is that although the amount of damages resulting from impairment of a plaintiff's earning capacity must be left largely to the sound judgment and discretion of the jury, nevertheless the jury should not be left to mere conjecture where facts appear to be available upon which the jury could base an intelligent answer.\n \n \n 38\n Id., 325 S.W.2d at 121.\n \n \n 39\n The court reversed the judgment because Bonney had not produced any evidence of his earnings before the accident or any justification for his failure to do so. Id. at 121. The facts before us are distinguishable from Bonney in the sense that Johnson did produce some evidence of his work history and earnings immediately prior to the accident. From this evidence, however, we can only conclude that Johnson had no earning capacity at the time of the accident. He was unable to maintain his job at Sir Speedy because of his health and his attempts to obtain other employment were unsuccessful. The only job he held for any period of time was handing out brochures for which he was paid a lump sum of $500.\n \n \n 40\n Johnson apparently contends, however, that he is excused under Bonney from offering additional proof of his prior earning capacity, and that the jury might have found that had the 1984 accident not occurred, he would have recovered from the 1983 accidents and been able to reestablish an earning capacity. The evidence precludes such a finding, however. First, based on the undisputed medical evidence, the jury could only have found that Johnson's condition as of September 12, 1984, was permanent. Both Drs. San Filippo and Bieganowski testified that any impairment lasting more than one year after the 1983 accidents was not likely to improve. Certainly the 1984 accident worsened his condition, but there is no evidence that his condition would have improved to the point of restoring his earning capacity if he had not been involved in the 1984 accident. Any award of damages for diminished earning capacity based on Johnson's earning ability before the 1983 accidents, therefore, is not supported by the record. Second, even if the jury's verdict could have been based on Johnson's condition before the 1983 accidents, the record contains insufficient evidence of his earning capacity at that time to support an award. All we know of Johnson's pre-1983 work history is that he had several jobs in the construction industry, that he had owned a seafood business, and that he was attending classes to obtain a real estate license. Johnson's self-serving general statements that the seafood business was profitable are undermined by his admission that the company's trucks were repossessed. Additionally, Johnson was apparently unemployed during the year between the time he sold the seafood company and had the 1983 accidents.\n \n \n 41\n For these reasons, we reverse and render the jury's verdict for lost earnings or lost earning capacity in the past.\n \n C.\n \n 42\n Michelin also contends that the jury's verdict for future lost earning capacity is not supported by the record. Because the law for loss of earning capacity in the future is the same as for that in the past, we reverse this award for the reasons stated in the preceding section, that is, Johnson failed to adduce evidence that he had any earning capacity at the time the 1984 accident, the subject of this lawsuit, occurred.D.\n \n \n 43\n Michelin asserts that the record does not support the jury award of $430,000 for future medical expenses. In Texas, the award of future medical expenses is not an element of damages that must be supported with precise evidence, since it is a matter upon which the jury may make its award based upon the nature of the injuries, the medical care rendered before the trial, and the condition of the injured party. City of Houston v. Moore, 389 S.W.2d 545, 550 (Tex.Civ.App.--Houston 1985, writ ref'd n.r.e.). The parties agree that the only evidence of future medical expenses came from Dr. Bieganowski who estimated that custodial care for Johnson would cost $8,000 to $10,000 a year and psychiatric care would cost $1,000 to $2,000 a year. No evidence of Johnson's life expectancy or formulae for discounting an award of future damages to present value was offered. The jury was instructed, however, that as a general matter it could discount lump sum awards.7\n \n \n 44\n The undisputed evidence therefore establishes that future medical care would cost Johnson $9,000 to $12,000 a year. Johnson points out that Bieganowski testified that his estimates were conservative and that the jury was therefore entitled to award more. The jury, however, awarded an amount that if invested at six percent interest would give him an amount as much as twice Bieganowski's estimate; and still the principal would not be touched. Such an amount is clearly excessive. We are unable, however, to grant a remittitur; because the record does not reflect evidence of Johnson's life expectancy nor of the proper method of discounting, we cannot determine the basis on which the jury made its award so as to know the maximum recovery the record would allow. See Nissho-Iwai Co. v. Occidental Crude Sales, 729 F.2d 1530, 1548 (5th Cir.1984).8\n \n V\n \n 45\n In sum, we leave as entered the unappealed judgment for past and future pain and suffering; we remit the award for past necessary medical and hospital care and medication to $4,676.40; we reverse the awards for past loss of earnings or earning capacity in the past and for diminished earning capacity in the future and render because no evidence was adduced to support any recovery; and we remand for a new trial on damages for future necessary medical and hospital care and medication.\n \n \n 46\n AFFIRMED IN PART, RENDERED IN PART, VACATED IN PART, AND REMANDED.\n \n \n \n 1\n It was, of course, Johnson's contention that the accident was caused by a blowout. Michelin does not fully reveal its theory of what caused the automobile to leave the highway and hit the guard rail, although there was evidence that Johnson was subject to blackouts. Michelin's defense and arguments on appeal are simply that there was no blowout and that the tire went flat as a result of the accident after impact with the guard rail\n \n \n 2\n Sperberg's testimony differs from that of Officer Saucedo who stated that the marks were made by the right rear and left front tires. Sperberg's testimony also conflicts with that of Mr. Basham who testified that the marks were made by the left rear and left front tires. It is made even clearer to us that when experts' opinions vary this much on crucial occurrences, the jury has the liberty to reject or to accept in whole or in part the \"expert\" testimony, and the jury's conclusion should not be tampered with on appeal\n \n \n 3\n Sperberg stated that a blowout can make a car go straight, go right, go left, or anywhere in between\n \n \n 4\n As Michelin contends, Johnson did not rebut or disprove all of the other possible reasons for the tire's deflation. This, however, Johnson was not required to do. Darryl v. Ford Motor Co., 440 S.W.2d 630 (Tex.1969)\n \n \n 5\n The jury's awards for past and future pain and suffering are not appealed\n \n \n 6\n In instructing the jury, the district court stated: \"When determining damages, if any, you must consider only these elements ... 4. Past and future lost earning capacity.\" On special interrogatories, however, the jury was asked to determine \"such loss of earnings, if any, that [Johnson] has sustained since September 12, 1984 until the date of this trial.\"\n \n \n 7\n The district court instructed:\n In determining the amount to be allowed for the element of damage for future medical treatment and future loss of earning capacity, if any, you should consider only the present value of such amount you may allow by discounting the same or deducting therefrom annually an amount equal to the highest rate of interest at which sum could safely and securely be invested during the period for which you may allow such damages.\n \n \n 8\n Michelin also asserts that it is entitled to a new trial because the trial court erroneously admitted into evidence testimony regarding a congressional report on the American tire industry\n The congressional study was first mentioned in the direct examination of Sperberg. In a lengthy narrative explaining how a tire is constructed, Sperberg stated that a minimum of eighty percent of tire failures were caused by separations. Michelin's counsel objected on the grounds that such a conclusion was speculative; the court sustained the objection and Sperberg then stated that a congressional report concluded that separation was the primary cause of tire failures. Sperberg also cited the report as support for his statement that in the event of a blowout, a vehicle might go straight or to the left or to the right. Michelin did not object at either mention of the report during Sperberg's testimony.\n Michelin's counsel raised the subject of the report by asking Zambalas, on direct examination, whether Michelin had ever been the subject of a government study, referring to Sperberg's statements regarding the findings in the congressional report. When Johnson's attorney later asked Zambalas questions regarding the study, Michelin objected, but only on the grounds of materiality and relevance. The district court overruled the objection. Later, during the same cross-examination, when Zambalas was asked to read a portion of the report, Michelin again objected and the court again overruled the objection on the grounds that the question was invited.\n Before Michelin raised an objection, the congressional investigation was mentioned on direct examination of both Sperberg and Zambalas. We hold that any objection was waived, and therefore the district court properly denied Michelin's motion for a new trial on this issue. We do not address, however, whether the report would be admissible if properly challenged.\n \n \n ",
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| Fifth Circuit | Court of Appeals for the Fifth Circuit | F | USA, Federal |
245,411 | null | 1958-06-18 | false | carl-fraser-cadby-v-joseph-savoretti-district-director-united-states | null | null | Carl Fraser Cadby v. Joseph Savoretti, District Director, United States Immigration and Naturalization Service, Miami, Florida, Etc., Frederic Arthur Brunt v. Joseph Savoretti, District Director, United States Immigration and Naturalization Service, Miami, Florida, Etc. | null | null | null | null | null | null | null | null | null | null | null | 2 | Published | null | null | [
"256 F.2d 439"
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"opinion_text": "256 F.2d 439\n Carl Fraser CADBY, Appellant,v.Joseph SAVORETTI, District Director, United States Immigration and Naturalization Service, Miami, Florida, Etc., Appellee.Frederic Arthur BRUNT, Appellant,v.Joseph SAVORETTI, District Director, United States Immigration and Naturalization Service, Miami, Florida, Etc., Appellee.\n No. 17039.\n No. 17048.\n United States Court of Appeals Fifth Circuit.\n June 18, 1958.\n \n David W. Walters, Miami, Fla., for appellant.\n Richard R. Booth, Asst. U. S. Atty., Miami, Fla., James L. Guilmartin, U. S. Atty., Miami, Fla., Gilbert Zimmerman, Regional Counsel Immigration and Naturalization Service, Richmond, Va., for appellee.\n Before RIVES, CAMERON and BROWN, Circuit Judges.\n JOHN R. BROWN, Circuit Judge.\n \n \n 1\n The principal question in these two cases briefed and argued together, though tried on separate records, is whether in a post-1952 deportation proceeding, the alien is entitled to have the Attorney General entertain an application for discretionary relief authorized under the 1917, but not under the 1952, Act, and, as a corollary to it, whether the Savings Clause of Section 405(a) of the 1952 Act, 8 U.S.C.A. § 1101 note affords the alien any such relief.\n \n \n 2\n Deportation is on the basis that at the time of the last entry, each was excludable. Since, prior to that entry, each had had an extended residence long in excess of seven years, the relief specifically sought is that accorded by the Seventh Proviso of Section 3 of the Immigration Act of February 5, 1917 which provided:\n \n \n 3\n \"that aliens returning after a temporary absence to an unrelinquished United States domicile of seven consecutive years may be admitted in the discretion of the Attorney General, and under such condition as he may prescribe.\"\n \n \n 4\n Reliance on the 1917 Act is necessary because, in contrast to its terms which do not require seven years lawful continuous residence, that is the requirement of its counterpart Section 212(c) in the 1952 Act:\n \n \n 5\n \"(c) Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to the provisions of paragraphs (1)-(25), (30), and (31) of subsection (a). * * * Nothing contained in this subsection shall limit the authority of the Attorney General to exercise the discretion vested in him under section 211(b) * * *.\" 8 U.S.C.A. § 1182.\n \n \n 6\n As it is unquestioned that the 1952 Act expressly repealed1 the Immigration Act of 1917, the aliens attempt to circumvent that by the argument that since excludability at the time of the last entry was on the basis of the 1917 Act sauce for both goose and gander, National Rag & Waste Co. v. United States, 5 Cir., 237 F.2d 846, requires that one subject to the pains and disadvantages of the 1917 Act is entitled to its benefits. But the argument falls from the defect in the major premise.\n \n \n 7\n The minute facts concerning Cadby2 or Brunt3 are of little consequence. Each made an illegal entry, Cadby in 1952 and Brunt in 1951, both at times prior to December 24, 1952, the effective date of the Immigration and Nationality Act of 1952. At that time each of them was subject to exclusion under the then applicable Act,4 Section 3, Immigration Act of 1917, as a person who had been convicted of having committed a felony or other crime or misdemeanor involving moral turpitude.\n \n \n 8\n But of course the sanction being asserted in these proceedings is not exclusion, it is deportation. And for deportation, it rests on the law applicable at the time deportation is asserted. This was, of course, Section 241(a) (1), 8 U.S.C.A. § 1251(a) (1), which provides:\n \n \n 9\n \"(a) Any alien in the United States * * * shall, upon the order of the Attorney General, be deported who —\n \n \n 10\n \"(1) at the time of entry was within one or more of the classes of aliens excludable by the law existing at the time of such entry.\"\n \n \n 11\n This was not, as the aliens would have us believe, the momentary resuscitation of the 1917 Act, whose demise was otherwise complete and final, note 1, supra, as a basis for deportation. On the contrary, it was Congress, legislating in 1952, prescribing the standards which currently would be applied. These currently prescribed standards were those which had formerly applied. This did not revive the old. The old merely became a part of the new. This was particularly true of this complex legislation which plainly reflected a comprehensive purpose to cover the past and the future, and to make much of it retroactive5 in nature.\n \n \n 12\n It should be borne in mind that we are not here dealing with the attempted deportation of aliens who subsequent to their last entry had acquired any supposed right to remain in this country. Consequently the problem reserved in Shomberg v. United States, 348 U.S. 540, 543, 75 S. Ct. 509, 99 L. Ed. 624, 628, footnote 3, is not before us. Ours is the much narrower one: since Cadby in early 1952 and Brunt in 1951 might have applied to the Attorney General for Seventh Proviso discretionary relief which, if granted, would have entitled each of them to admission on conditions specified, does that \"right\" continue perpetually until exhausted by an application and denial of discretionary relief?\n \n \n 13\n Certainly it does not by the terms of the 1917 Act, for it was repealed, note 1, supra, and after December 24, 1952, had no further effect. The only way this result can come about is through the Savings Clause in Section 405(a) in the 1952 Act. It provides6 that \"* * * unless otherwise specifically provided * * *\" for therein \"nothing contained in this Act\" shall be construed to affect \"* * * any prosecution, suit, action, or proceedings, civil or criminal, brought, or any status, condition, right in process of acquisition, act, thing * * *, or matter * * * done or existing, at the time this Act shall take effect.\" Section 405(a) is unavailing for two reasons. First, the Act has \"otherwise specifically provided\" for this situation. In Section 212 (8 U.S.C.A. § 1182), the 1952 Act prescribes the standards of excludability, and in Section 241 (d) (8 U.S.C.A. § 1251(d)), note 5, supra, it expressly provides that deportability shall be retroactive. Similarly, the area of the Attorney General's administrative relief was sharply changed7 under Section 212(c) of the 1952 Act. As a basis for exercise of the Attorney General's discretion, the return must be to a \"lawful unrelinquished domicile\" and only aliens \"lawfully admitted for permanent residence\" are eligible to apply. Cadby was never lawfully admitted since his felonies were committed prior to his initial entry. Brunt commenced his residence as one lawfully admitted for permanent residence, but lost that in 1944 by a valid deportation so that his return could not have been to \"a lawful unrelinquished domicile of seven consecutive years.\"\n \n \n 14\n If Congress is deemed, as the Court held it was, Lehmann v. United States ex rel. Carson, 353 U.S. 685, 77 S. Ct. 1022, 1 L. Ed. 2d 1122; Lehmann v. United States ex rel. Sciria, 6 Cir., 248 F.2d 519, to have required deportation because of prior events of aliens currently enjoying residence, then the Savings Clause warrants parallel construction that the situation has been \"otherwise specifically provided\" for when the aliens, as here, have only a tenuous residence which, under the old law, might, if administrative relief had been sought and if sought, granted, have permitted either their return or continued stay.\n \n \n 15\n Second, the Savings Clause cannot here operate because there is no \"status, condition [or], right in process of acquisition.\" It was sometime in 1949 when Brunt made what he claims was his latest application for administrative relief. Cadby's was in 1952, the last step being the rejection by the Toronto Consulate in May 1952, note 2, supra. In no sense was either application a pending unresolved open matter. United States er rel. Zacharias v. Shaughnessy, 2 Cir., 221 F.2d 578. All that had been sought had been denied. The decision was known in each case before December 24, 1952, and no steps had been taken by either toward staying the effect of any such denial or seeking the benefit of reconsideration or rehearing. Shintaro Miyagi v. Brownell, 97 U.S.App.D.C. 18, 227 F.2d 33. Nor was the benefit of the Seventh Proviso that type of right which might be characterized as a continuing inchoate one, the mere existence of which might keep it alive. Cf. United States v. Menasche, 348 U.S. 528, 75 S. Ct. 513, 99 L. Ed. 615 and Shomberg v. United States, 348 U.S. 540, 75 S. Ct. 509, 99 L. Ed. 624; In re Pauschert's Petition, D.C.N.Y., 140 F. Supp. 485; Petitions of F____ G____ and E____ E____ G____, D.C.N.Y., 137 F. Supp. 782; Aure v. United States, 9 Cir., 225 F.2d 88; Applications of Tano, D.C.Cal., 139 F. Supp. 797, 799, affirmed 9 Cir., 237 F.2d 916. The Seventh Proviso, if effective, was not the means by which to protect or preserve anything. At best, it was the means by which certain prescribed persons were afforded an opportunity to have the Attorney General consider why the inexorable effect of the law ought not to operate with respect to their cases. It was couched in conditional and permissive terms. As a piece of legislative grace, it conveyed no rights, it conferred no status.\n \n \n 16\n The District Court was correct in determining that in neither case was the alien entitled to Seventh Proviso relief in a post-1952 Act deportation proceeding.\n \n \n 17\n Affirmed.\n \n \n \n Notes:\n \n \n 1\n Section 403(a) Immigration and Nationality Act of December 24, 1952, 66 Stat. 279:\n \"The following Acts and all amendments thereto and parts of Acts and all amendments thereto are repealed: * * * (13) Act of February 5, 1917 (39 Stat. 874).\"\n \n \n 2\n Cadby entered the United States first in 1929 from Canada. Shortly prior to that time and while a resident and citizen of Canada he pleaded guilty and was sentenced for five separate acts of stealing and breaking and entering and stealing. His residence in the United States was continuous from 1943 to 1952. In 1952, without previous consultation with the Immigration Service, he voluntarily went to Canada with a purpose of legalizing his status. While there, he made an application for an Immigration visa to the United States Consulate, Toronto, disclosing fully his criminal record. On May 16, 1952, he received a letter from the United States Consulate, Toronto, stating that he was ineligible to receive an immigration visa because he was a person who had been convicted of crimes involving moral turpitude. A month later, in June 1952, he made the illegal entry\n \n \n 3\n Brunt's first entry from Canada was September 28, 1929, when he was lawfully admitted for permanent residence in possession of a nonquota immigration visa. In 1933, in New York, he pleaded guilty to two charges of endangering the health and morals of a child, and in 1942 he pleaded guilty to the crime of assault, second degree, with intent to commit rape, all of which are conceded to be felonies or crimes involving moral turpitude. This resulted in his being deported in 1944. On November 28, 1949, he applied to the Attorney General for permission to return to the United States, but this was denied. On at least four occasions subsequent to 1944, the last being the entry of October 1951, he reentered the United States\n \n \n 4\n \"That the following classes of aliens shall be excluded from admission into the United States: * * * all * * * persons who have been convicted of or admit having committed a felony or other crime or misdemeanor involving moral turpitude: * * *.\"\n \n \n 5\n E.g., Section 241(d), 8 U.S.C.A. § 1251 (d):\n \"Except as otherwise specifically provided in this section, the provisions of this section shall be applicable to all aliens belonging to any of the classes enumerated in subsection (a), notwithstanding (1) that any such alien entered the United States prior to [the date of enactment of this Act], or (2) that the facts, by reason of which any such alien belongs to any of the classes enumerated in subsection (a), occurred prior to [the date of enactment of this Act].\"\n \n \n 6\n Section 405(a): \"Nothing contained in this Act, unless otherwise specifically provided therein, shall be construed to affect the validity of any declaration of intention, petition for naturalization, certificate of naturalization, certificate of citizenship, warrant of arrest, order or warrant of deportation, order of exclusion, or other document or proceeding which shall be valid at the time this Act shall take effect; or to affect any prosecution, suit, action, or proceedings, civil or criminal, brought, or any status, condition, right in process of acquisition, act, thing, liability, obligation, or matter, civil or criminal, done or existing, at the time this Act shall take effect; but as to all such prosecutions, suits, actions, proceedings, statutes, conditions, rights, acts, things, liabilities, obligations, or matters the statutes or parts of statutes repealed by this Act are, unless otherwise specifically provided therein, hereby continued in force and effect. * * * An application for suspension of deportation under section 19 of the Immigration Act of 1917, as amended, or for adjustment of status under section 4 of the Displaced Persons Act of 1948, as amended, which is pending on the date of enactment of this Act, shall be regarded as a proceeding within the meaning of this subsection.\" Historical Note to 8 U.S.C.A. § 1101\n \n \n 7\n The legislative history reveals that Congress was dissatisfied with the administrative operation of the Seventh Proviso of the 1917 Act and the abuses which arose from the pre-examination and momentary departure procedure, and especially the way in which administrative interpretation seemed to discriminate in favor of those whose entry and conduct was unlawful. See S.Rep. 1137, 82nd Cong., 2d Sess., p. 12; H.Rep. 1365, 82nd Cong., 2d Sess., p. 51; \"The Immigration and Naturalization Systems in the United States,\" S.Rep. 1515, 81st Cong., 2d Sess., p. 381-384\n \n \n ",
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| Fifth Circuit | Court of Appeals for the Fifth Circuit | F | USA, Federal |
122,404 | null | 2002-10-07 | false | fata-aluminum-inc-v-vulcan-engineering-co-inc | null | Fata Aluminum, Inc. v. Vulcan Engineering Co., Inc | null | null | null | null | null | null | null | null | null | null | null | null | 0 | Published | null | null | [
"537 U.S. 814"
]
| [
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"opinion_text": "537 U.S. 814\n FATA ALUMINUM, INC., ET AL.v.VULCAN ENGINEERING CO., INC.\n No. 01-1791.\n Supreme Court of United States.\n October 7, 2002.\n \n 1\n CERTIORARI TO THE COURT OF APPEALS FOR THE FEDERAL CIRCUIT.\n \n \n 2\n C. A. Fed. Cir. Certiorari denied. Reported below: 278 F. 3d 1366.\n \n ",
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| Supreme Court | Supreme Court of the United States | F | USA, Federal |
1,071,521 | null | 1999-07-20 | false | bobby-dean-ritchie-v-commonwealth-of-virginia | null | Bobby Dean Ritchie v. Commonwealth of Virginia | null | null | null | null | null | null | null | null | null | null | null | null | 0 | Unpublished | null | null | null | [
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"opinion_text": " COURT OF APPEALS OF VIRGINIA\n\n\nPresent: Judges Benton, Willis and Senior Judge Cole\nArgued at Richmond, Virginia\n\n\nBOBBY DEAN RITCHIE\n MEMORANDUM OPINION * BY\nv. Record No. 1251-98-4 JUDGE JERE M. H. WILLIS, JR.\n JULY 20, 1999\nCOMMONWEALTH OF VIRGINIA\n\n\n FROM THE CIRCUIT COURT OF FAIRFAX COUNTY\n Leslie M. Alden, Judge\n\n Mark Bodner for appellant.\n\n Steven A. Witmer, Assistant Attorney General\n (Mark L. Earley, Attorney General, on brief),\n for appellee.\n\n\n On appeal from his jury trial convictions of possession of\n\na controlled drug with the intent to distribute and distribution\n\nof a controlled drug, in violation of Code § 18.2-248, Bobby\n\nDean Ritchie contends that the trial court erred in sustaining\n\nthe Commonwealth's peremptory strike of the only\n\nAfrican-American venireman without receiving a particularized\n\nand racially neutral explanation. We find no error and affirm\n\nthe judgment of the trial court.\n\n Ritchie is African-American. The Commonwealth exercised\n\none of its peremptory strikes to remove from the jury Tricia\n\nJefferson, the only African-American member of the venire.\n\n\n * Pursuant to Code § 17.1-413, recodifying Code\n§ 17-116.010, this opinion is not designated for publication.\n\fDefense counsel objected to the strike, arguing that a\n\nprospective juror may not be removed by peremptory strike solely\n\non the basis of race. See Batson v. Kentucky, 476 U.S. 79, 89\n\n(1976). The Commonwealth's attorney explained that he struck\n\nJefferson because she was not a landowner and that he would have\n\nstruck a white venireman who also was not a landowner, had\n\ndefense counsel not previously struck him.\n\n Where a race-based strike is alleged,\n\n [a] defendant must first establish a prima\n facie showing that the peremptory strike was\n made on the basis of race. At that point,\n the burden shifts to the prosecution to\n produce explanations for striking the juror\n which are race-neutral. Even if\n race-neutral, the reasons may be challenged\n by the defendant as pretextual. Finally,\n the trial court must decide whether the\n defendant has carried his burden of proving\n purposeful discrimination by the prosecutor\n in selecting the jury panel. On appeal, the\n trial court's findings will be reversed only\n if they are clearly erroneous.\n\nBuck v. Commonwealth, 247 Va. 449, 450-51, 443 S.E.2d 414, 415\n\n(1994) (citations omitted).\n\n The Commonwealth's attorney's explanation that he struck\n\nJefferson because she was not a landowner in the county is\n\nfacially race-neutral. No evidence suggested that this\n\nexplanation was a pretext for removing her because of race. The\n\nCommonwealth's attorney further explained that he wanted to\n\nstrike a white male non-landowner, and would have, had the\n\ndefense not struck him first. \"'Unless a discriminatory intent\n\n - 2 -\n\fis inherent in the prosecutor's explanation, the reason offered\n\nwill be deemed race neutral.'\" Purkett v. Elem, 514 U.S. 765,\n\n768 (1995) (citation omitted). The trial court's finding that\n\nthe Commonwealth's race-neutral explanation was bona fide is\n\nentitled to great deference, as the trial court is in the unique\n\nposition \"to observe and evaluate 'the prosecutor's state of\n\nmind based on demeanor and credibility' in the context of the\n\ncase then before the court.\" Robertson v. Commonwealth, 18 Va.\n\nApp. 635, 639, 445 S.E.2d 713, 715 (1994) (citation omitted).\n\n We affirm the judgment of the trial court.\n\n Affirmed.\n\n\n\n\n - 3 -\n\fBenton, J., dissenting.\n\n On voir dire, Jefferson was one of several venire persons\n\nwho indicated that a family member had been the victim of a\n\ncrime. In response to defense counsel's questioning, Jefferson\n\nsaid \"[her] mom had her purse stolen from her office . . . three\n\nor four years ago.\" The parties asked no other questions of\n\nher. The prosecutor used his peremptory challenge to remove\n\nJefferson, the only African-American person on the venire, and\n\nlater justified removing her by stating she was not \"a\n\nlandowner\" in the county. When asked by the judge, \"[w]hat does\n\nthat have to do with it?,\" the prosecutor suggested that\n\nJefferson's non-landowner status concerned her \"interest in what\n\ngoes on in Fairfax County.\"\n\n Because the prosecutor's exercise of peremptory challenges\n\nis subject to the command of the Fourteenth Amendment, the\n\nSupreme Court has clearly stated that \"[t]he prosecutor . . .\n\n[, when called upon to explain this challenge,] must articulate\n\na neutral explanation related to the particular case to be\n\ntried.\" Batson v. Kentucky, 476 U.S. 79, 98 (1986) (footnote\n\nomitted) (emphasis added). See also Jackson v. Commonwealth, 8\n\nVa. App. 176, 185, 380 S.E.2d 1, 3, aff'd on reh'g en banc, 9\n\nVa. App. 169, 384 S.E.2d 343 (1989). The reason stated by the\n\nprosecutor for removing Jefferson had no bearing on the case to\n\nbe tried, but it has profound implications for systemically\n\nexcluding Jefferson and other racial minorities.\n - 4 -\n\f When any large and identifiable segment of\n the community is excluded from jury service,\n the effect is to remove from the jury room\n qualities of human nature and varieties of\n human experience, the range of which is\n unknown and perhaps unknowable. It is not\n necessary to assume that the excluded group\n will consistently vote as a class in order\n to conclude, as we do, that its exclusion\n deprives the jury of a perspective on human\n events that may have unsuspected importance\n in any case that may be presented.\n\nPeters v. Kiff, 407 U.S. 493, 503-04 (1972) (footnote omitted).\n\n \"The Equal Protection Clause guarantees the defendant that\n\nthe State will not exclude members of his race from the jury\n\nvenire on account of race, or on the false assumption that\n\nmembers of his race as a group are not qualified to serve as\n\njurors.\" Batson, 476 U.S. at 86 (citation omitted) (footnote\n\nomitted). By accepting the reason stated by the prosecutor in\n\nthis case, \"[t]his Court again sends the message that in\n\nVirginia any reason will suffice to remove African-Americans\n\nfrom juries so long as the prosecutor does not admit on the\n\nrecord race as the reason and the trial judge blindly accepts\n\nthe prosecutor's assertion that race was not the reason.\" Buck\n\nv. Commonwealth, 16 Va. App. 551, 561, 432 S.E.2d 180, 186\n\n(1993) (en banc) (Benton, J., dissenting), aff'd, 247 Va. 449,\n\n443 S.E.2d 414 (1994). I again dissent.\n\n\n\n\n - 5 -\n\f",
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| Court of Appeals of Virginia | Court of Appeals of Virginia | SA | Virginia, VA |
1,437,066 | Moylan, Menchine and Lowe | 1976-01-30 | false | state-v-fearing | Fearing | State v. Fearing | State of Maryland v. William Fearing, Albert Herrmann, Stephen Lai, John Duer Moores, Jonas Cohen, Humberto Certeza and Melvin F. Polek | Albert Gallatin Warfield, III, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Milton B. Allen, State’s Attorney for Baltimore City, and Richard Cremin, Assistant State’s Attorney for Baltimore City on the brief, for appellant., Alan I. Baron for appellee Jonas Cohen. Read K. McCaffrey, with whom were George D. Solter and Whiteford, Taylor, Preston, Trimble & Johnson on the brief, for appellee John Duer Moores. Russell Smouse for appellee Stephen Lai. Submitted on brief by Edwin M. Henry, Jr. and Preston A. Pairo, Jr., for appellee William Fearing. George J. Helinski for appellee Melvin F. Polek. Peter G. Angelos for appellee Humberto Certeza. Alvin Solomon and Victor W. Fuentealba for appellee Albert Herrmann. | null | null | null | null | null | null | null | null | null | null | 4 | Published | null | <parties data-order="0" data-type="parties" id="b156-4">
STATE OF MARYLAND
<em>
v.
</em>
WILLIAM FEARING, ALBERT HERRMANN, STEPHEN LAI, JOHN DUER MOORES, JONAS COHEN, HUMBERTO CERTEZA and MELVIN F. POLEK
</parties><br><docketnumber data-order="1" data-type="docketnumber" id="b156-5">
[No. 121,
</docketnumber><p data-order="2" data-type="misc" id="ATis">
September Term, 1975.]
</p><br><decisiondate data-order="3" data-type="decisiondate" id="b156-6">
<em>
Decided January 30, 1976.
</em>
</decisiondate><br><p data-order="4" data-type="judges" id="b157-10">
<span citation-index="1" class="star-pagination" label="135">
*135
</span>
The cause was argued before Moylan, Menchine ana Lowe, JJ.
</p><br><attorneys data-order="5" data-type="attorneys" id="b157-11">
<em>
Albert Gallatin Warfield, III, Assistant Attorney General,
</em>
with whom were
<em>
Francis B. Burch, Attorney General, Milton B. Allen, State’s Attorney for Baltimore City,
</em>
and
<em>
Richard Cremin, Assistant State’s Attorney for Baltimore City
</em>
on the brief, for appellant.
</attorneys><br><attorneys data-order="6" data-type="attorneys" id="b157-12">
<em>
Alan I. Baron
</em>
for appellee Jonas Cohen.
<em>
Read K. McCaffrey,
</em>
with whom were
<em>
George D. Solter
</em>
and
<em>
Whiteford, Taylor, Preston, Trimble & Johnson
</em>
on the brief, for appellee John Duer Moores.
<em>
Russell Smouse
</em>
for appellee
<span citation-index="1" class="star-pagination" label="136">
*136
</span>
Stephen Lai. Submitted on brief by
<em>
Edwin M. Henry, Jr.
</em>
and
<em>
Preston A. Pairo, Jr.,
</em>
for appellee William Fearing.
<em>
George J. Helinski
</em>
for appellee Melvin F. Polek.
<em>
Peter G. Angelos
</em>
for appellee Humberto Certeza.
<em>
Alvin Solomon
</em>
and
<em>
Victor W. Fuentealba
</em>
for appellee Albert Herrmann.
</attorneys> | [
"351 A.2d 896",
"30 Md. App. 134"
]
| [
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"opinion_text": "\n30 Md. App. 134 (1976)\n351 A.2d 896\nSTATE OF MARYLAND\nv.\nWILLIAM FEARING, ALBERT HERRMANN, STEPHEN LAI, JOHN DUER MOORES, JONAS COHEN, HUMBERTO CERTEZA AND MELVIN F. POLEK.\nNo. 121, September Term, 1975.\nCourt of Special Appeals of Maryland.\nDecided January 30, 1976.\nThe cause was argued before MOYLAN, MENCHINE and LOWE, JJ.\nAlbert Gallatin Warfield, III, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Milton B. Allen, State's Attorney for Baltimore City, and Richard Cremin, Assistant State's Attorney for Baltimore City on the brief, for appellant.\nAlan I. Baron for appellee Jonas Cohen. Read K. McCaffrey, with whom were George D. Solter and Whiteford, Taylor, Preston, Trimble & Johnson on the brief, for appellee John Duer Moores. Russell Smouse for appellee *136 Stephen Lai. Submitted on brief by Edwin M. Henry, Jr. and Preston A. Pairo, Jr., for appellee William Fearing. George J. Helinski for appellee Melvin F. Polek. Peter G. Angelos for appellee Humberto Certeza. Alvin Solomon and Victor W. Fuentealba for appellee Albert Herrmann.\nMOYLAN, J., delivered the opinion of the Court.\nThis case involves an interpretation of the Controlled Dangerous Substances Act, which was modeled on and taken virtually verbatim from the proposed draft of the Federal Controlled Substances Act[1] and made a part of Maryland law by virtue of Chapter 403 of the Acts of 1970, which became effective on July 1, 1970. The appellees William Fearing, Albert Herrmann, Stephen Lai, John Duer Moores, Jonas Cohen, Humberto Certeza and Melvin F. Polek, are all medical doctors licensed to practice in the State of Maryland. On July 26, 1974, the Grand Jury of Baltimore City returned numerous multi-count indictments against the appellees charging them with violations of the Controlled Dangerous Substances Act. All of the appellees moved to have the indictments dismissed and, after full hearings on the motions on December 3, 1974, the indictments were dismissed in the Criminal Court of Baltimore on December 27, 1974.\nPursuant to Courts and Judicial Proceedings Article, § 12-302 (c), and State v. James, 203 Md. 113, 100 A.2d 12, the State has taken a timely appeal.\n\nI.\nOf the 35 indictments involved in the dismissal hearing, five were single-count indictments charging the appellees Moores, Fearing, Cohen, Herrmann and Certeza with conspiracy to violate § 286 (a) (1). Each of the remaining 30 indictments was in seven counts, with the first, second, fifth and sixth counts charging substantive violations of § 286 (a) (1). All of these substantive counts, as well as all of the *137 conspiracy indictments, were dismissed because of the hearing judge's conclusion that § 286 (a) (1) does not apply to medical practitioners.\nSection 286 (a) (1) provides:\n\"(a) Except as authorized by this subheading, it shall be unlawful for any person:\n(1) To manufacture, distribute, or dispense, or to possess a controlled dangerous substance in sufficient quantity to reasonably indicate under all circumstances an intent to manufacture, distribute, or dispense, a controlled dangerous substance;\"\nThe thrust of the judge's ruling and of the appellees' argument both here and below was that since § 288 dealt with \"certain unlawful acts particularly applicable to registrants\" (that is, licensed medical practitioners), that section preempted the field so far as medical practitioners were concerned. That argument took the position that practitioners are exempt from the provisions of § 286, which apply to ordinary laymen, and may be proceeded against only under § 288. The contrary argument of the State is that § 286 applies to all who violate its general provisions, laymen and practitioners alike, and that § 288 applies additional proscriptions against medical practitioners.\nThe opinion of the hearing judge and the arguments of the appellees before us relied heavily upon the majority opinion of Chief Judge Bazelon in United States v. Moore, 505 F.2d 426 (D.C. Cir.1974). Interpreting counterpart provisions of the Federal Controlled Substances Act, the United States Court of Appeals ruled that a licensed physician could be proceeded against only under the specific provision of that Act dealing with licensed physicians. The State, both at the hearing below and before us, relied persuasively upon the dissenting opinion of Judge MacKinnon which argued vigorously that when physicians knowingly and unlawfully violate the general provisions of the criminal law, they are not exempted from the coverage of that law by virtue of their occupational status.\n*138 Since the decision of the hearing judge below and, indeed, since oral argument before us, the Supreme Court has stepped in and removed all ambiguity. In United States v. Moore, 18 Cr. L. 3025, decided on December 9, 1975 (the very case relied on below), a unanimous Supreme Court, speaking through Justice Powell, reversed the United States Court of Appeals for the District of Columbia and agreed with the dissenting opinion of Judge MacKinnon. The holding was very precise:\n\"The United States Court of Appeals for the District of Columbia reversed the conviction of respondent, a licensed physician registered under the Act, on the ground that he was exempted from prosecution under § 841 [the counterpart provision to our § 286 (a) (1)] by virtue of his status as a registrant. We reverse and hold that registered physicians can be prosecuted under § 841 when their activities fall outside the usual course of professional practice.\"\nAfter considering the argument in that case, which was framed in terms indistinguishable from the argument before us, the Supreme Court concluded:\n\"But we think it immaterial whether Dr. Moore also could have been prosecuted for his violation of statutory provisions relating to dispensing procedures. There is nothing in the statutory scheme or the legislative history that justifies a conclusion that a registrant who may be prosecuted for the relatively minor offense of violating § 829 [the counterpart provision to our § 288] is thereby exempted from prosecution under § 841 for the significantly greater offense of acting as a drug `pusher'.\"\nWe hold that the hearing judge was in error in dismissing the indictments and the counts charging conspiracy to violate and substantive violations of § 286 (a) (1).\n\n\n*139 II.\nThe hearing judge dismissed the fourth and seventh counts of each of the multi-count indictments for a different reason. These counts dealt with the conduct of the physicians as physicians, charged violations of § 288 (c) dealing, inter alia, with unlawful prescribing of controlled dangerous substances, and were subject to the provisions of § 288 (b):\n\"(b) Any person described hereinabove who violates this section is punishable by a civil fine of not more than Fifty Thousand Dollars ($50,000). Provided, that if the violation is prosecuted by an information or indictment which alleges that the violation was committed knowingly or intentionally, and the trier of facts specifically finds that the violation was committed knowingly or intentionally, such person shall be deemed guilty of a misdemeanor and punished by imprisonment, upon conviction, for not more than two (2) years or a fine of not more than One Hundred Thousand Dollars ($100,000) or both.\"\nThese counts did not allege that the violations were committed \"knowingly or intentionally.\" By virtue of that fact and the clear direction of the statute, an adjudicated violator would not \"be deemed guilty of a misdemeanor and punished by imprisonment ... for not more than two (2) years or a fine of not more than One Hundred Thousand Dollars ($100,000) or both\" but would be subject only to \"a civil fine of not more than Fifty Thousand Dollars ($50,000).\" (Emphasis supplied) The judge's ruling went further and concluded that in the absence of the allegation that the violations were committed \"knowingly or intentionally,\" the violation was not even criminal in nature and should not have been a subject for grand jury indictment.\nThe Maryland law is singularly unenlightening and the phrase \"a civil fine\" would be annoyingly cryptic if we did not have the parent provisions of the Federal Act for *140 guidance. The Maryland Controlled Dangerous Substances Act does not spell out for us what is meant by the enigmatic reference to \"a civil fine\" sandwiched between criminal provisions; it does not make it clear whether one proceeds by the normal criminal processes but is simply limited to the lesser penalty; it gives no guidance as to the machinery for assessing or collecting such \"a civil fine.\" Since the phrase \"a civil fine\" is taken from the Federal Act, however, we conclude that the Maryland Legislature meant the phrase to have whatever meaning it had in the parent Federal Act. We look, therefore, to 21 U.S.C., § 842, which makes explicit (in subsection (3)) that which in the Maryland law is hardly even implicit. Section 842 provides, in pertinent part:\n\"(c) (1) Except as provided in paragraph (2), any person who violates this section shall, with respect to any such violation, be subject to a civil penalty of not more than $25,000. The district courts of the United States ... shall have jurisdiction in accordance with section 1355 of Title 28 to enforce this paragraph.\n(2) (A) If a violation of this section is prosecuted by an information or indictment which alleges that the violation was committed knowingly and the trier of fact specifically finds that the violation was so committed, such person shall, except as otherwise provided in subparagraph (B) of this paragraph, be sentenced to imprisonment of not more than one year or a fine of not more than $25,000, or both.\n...\n(3) Except under the conditions specified in paragraph (2) of this subsection, a violation of this section does not constitute a crime, and a judgment for the United States and imposition of a civil penalty pursuant to paragraph (1) shall not give rise to any disability or legal disadvantage based on conviction for a criminal offense.\" (Emphasis supplied)\n*141 For further guidance as to how \"a civil penalty\" is treated under the Federal Act, we look to § 1355 of Title 28, referred to in § 842 above. That § 1355 provides, in pertinent part:\n\"The district courts shall have original jurisdiction ... of any action or proceeding for the recovery or enforcement of any fine, penalty, or forfeiture, pecuniary or otherwise, incurred under any Act of Congress.\"\nThe Reviser's Note to this section points out that the word \"fine\" was inserted into this section dealing with civil provisions, despite its criminal connotations, because of \"the many provisions in the United States Code for fines which are essentially civil.\" The Reviser's Note then makes further reference to § 2461, which provides, in pertinent part:\n\"(a) Whenever a civil fine, penalty or pecuniary forfeiture is prescribed for the violation of an Act of Congress without specifying the mode of recovery or enforcement thereof, it may be recovered in a civil action.\"\nWe conclude that proceeding by way of criminal indictment or information is appropriate under § 288 only when the violator is charged with having perpetrated the unlawful act \"knowingly or intentionally\" as provided by subsection (b). Other violations under § 288 without that necessary mens rea are not criminal in nature. The fourth and seventh counts of the multi-count indictments were, therefore, properly dismissed.[2]\n\n\n*142 III.\nThere remains but to consider the dismissals of the third counts of the multi-count indictments. Those counts charged violations of § 288 (c), which provides, in pertinent part:\n\"It is unlawful for any practitioner to prescribe, administer, manufacture, distribute, dispense, or possess any controlled dangerous substance or controlled paraphernalia except in the course of his regular professional duties, and in conformance with both the provisions of this subtitle and the standards of his particular profession relating to any such controlled dangerous substance or controlled paraphernalia.\"\nThe third counts do contain the necessary words \"knowingly or intentionally\" so as to charge a criminal offense. The appellees claimed below as they do now, and the hearing judge ruled, that a material element of the offense was not charged because of the failure of the third counts to allege that each of the appellees was a \"practitioner.\" It would undoubtedly have been preferable if the word \"practitioner\" had been included in the indictment. It was apparently left out inadvertently. It is for us to consider whether that omission is fatal to the charge. We are guided in this regard by the law set out in Baker v. State, 6 Md. App. 148, 156-157, 250 A.2d 677:\n\"The general rule is that an indictment charging an offense denounced and defined by statute should be as fully descriptive of the offense as is the language of the statute and should allege every substantial element of the offense as defined by the statute without material diversion or departure from the fair intendment of the terms of the *143 statute, and with reasonable particularity of time, place and circumstances.\n`It is not necessary that an indictment contain all the language of the statute on the subject; all that must be alleged is that which is requisite to charge the offense, or that which constitutes the essential ingredients of the offense as denounced by the statute. Words may be omitted if they are necessarily implied from those contained in the charge. * * * An indictment or information for such an offense is sufficient if it follows the language of the statute substantially or charges the offense in equivalent words or others of the same import if the defendant is thereby fully informed of the particular offense charged, and the court is enabled to see therefrom on what statute the charge is founded. * * * The statutory offense should be laid with the certainty of the statutory terms but should not be prolix, involved and obscure.' 4 Whartons's Criminal Procedure, § 1794, pp. 618-619 and § 1796, pp. 622-624.\"\nThe third counts in question did contain the following predicates:\n\"... did unlawfully, knowingly and intentionally prescribe a Controlled Dangerous Substance of Schedule II, to wit: Dilaudid, which is a narcotic drug not in the course of his regular professional duty, not in conformance with the standards of the Medical Profession, and not in conformance with the provisions of the Maryland Controlled Dangerous Substances Act...\"\nWe hold that the phrases \"not in the course of his regular professional duty\" and \"not in conformance with the standards of the Medical Profession\" necessarily implied the missing term \"practitioner\" and did serve to put the appellees on notice of the offense with which they were charged.\n*144 The appellee Moores raises an additional ground for dismissing the indictments against him. The appellee was summoned to appear before the Baltimore City Grand Jury on May 21, 1974, \"to testify concerning certain matters now under investigation by the Grand Jury.\" Pursuant to that summons, he appeared and testified concerning the matters for which he was later indicted. In the appellee's motion to dismiss below, he contended, inter alia, that he was a \"compelled witness\" before the grand jury that indicted him and that he is, therefore, exempt from prosecution under the instant indictments pursuant to Article 27, § 298 (c), which provides:\n\"Witnesses' immunity. No person shall, upon pain of contempt of court, refuse to testify concerning any violations of the provisions of this subheading [Controlled Dangerous Substances] because his testimony might tend to incriminate him or implicate him in such violations and every such person shall be a competent witness and compelled to testify against any person who may have committed any of the offenses set forth under this subheading, provided that any person so compelled to testify on behalf of the State in any such case shall be exempt from prosecution, trial and punishment for any and all such crimes and offenses about which such person was so compelled to testify.\"\nHe maintains further that he did not waive that immunity from prosecution.\nAfter dismissing the indictments on the grounds previously discussed in this opinion, the hearing judge stated:\n\"I would also like to state for the record that had the issue been reached, I would have found defendant John Duer Moores a compelled witness under Article 27, section 298 (c), and thus exempt from prosecution on all crimes which he testified about before the Grand Jury.\"\n*145 The appellee urges us to apply Md. Rule 1085 and to consider this issue. Md. Rule 1085 provides in pertinent part:\n\"This Court will not ordinarily decide any point or question which does not plainly appear by the record to have been tried and decided by the lower court; but where a point or question of law was presented to the lower court and a decision of such point or question of law by this Court is necessary or desirable for the guidance of the lower court or to avoid the expense and delay of another appeal to this Court, such point or question of law may be decided by this Court even though not decided by the lower court.\"\nBecause this point was fully argued by both the State and the appellee Moores at the hearing on the motion to dismiss, we deem it advisable in the interest of justice and to conserve time and expense to consider it at this time.\nWe believe the appellee Moores was \"compelled\" to testify before the grand jury within the meaning of Article 27, § 298 (c). State v. Panagoulis, 3 Md. App. 330, affirmed in 253 Md. 699, which dealt with a similar immunity provision in the laws relating to bribery offenses, is dispositive of this question:\n\"[W]ith regard to the question of a witness being compelled to testify, it is immaterial how he got before the grand jury. Once he is there, is sworn and testifies, he has been compelled to testify within the meaning of the statute.\" 3 Md. App. at 336-337.\nThe State, however, argued at the hearing on the motion to dismiss that the appellee Moores waived any immunity from prosecution. The following is a transcript of the pertinent parts of the grand jury proceedings, read into the record at the hearing:\n\"ASSISTANT STATE'S ATTORNEY: This Grand Jury has been empaneled to investigate certain alleged improprieties with respect to illegal dispensing and prescribing of narcotic drugs.\n\n*146 You have been summoned before the Grand Jury not as a mere innocent witness, but as a possible suspect and potential defendant in connection with the crimes which I have just mentioned. Because of your respectable position in the community, the Grand Jury has withheld any action upon indictments in order to give you an opportunity to appear here today and explain, if you can, the apparent irregularities which the evidence discloses. Do you understand what I have said thus far?\nDR. MOORES: Yes.\nASSISTANT STATE'S ATTORNEY: I want to make it clear to you that just because you are here under compulsory process, the summons which you received, you should not assume that you thereby gain immunity from prosecution in connection with the crimes which I have mentioned or any other crimes that I have not mentioned. You should clearly understand that you are not going to be compelled to testify and that you do not have immunity from prosecution. For this reason, you should consider your answers very carefully, and because of the fact that you are under suspicion and have not been granted immunity, it becomes my duty at this point to outline the rights which you have as a potential defendant.\nFirst of all, you have an absolute right under the Constitution of the United States and the laws of the State of Maryland to refuse to answer any questions which you think may tend to incriminate you. In other words, you have an absolute right to remain silent. Do you understand that?\"\nThe Assistant State's Attorney then continued:\n\"Finally, I don't want to lull you into a false sense of security so I remind you that you have not been granted immunity and that you will not be compelled to answer but that any answer which *147 proves incriminating will be used against you in both criminal and administrative proceedings. You should consider your answers carefully. If you choose to answer, you do so at your peril.\"\nThe State's position was that the appellee was advised of his rights, advised that he was appearing as a potential defendant, and advised that he would not be granted immunity from any narcotics violation which was under investigation because he would not be compelled to testify. The State argued, therefore, that since the appellee knew that he would not be compelled to testify, that he at least implicitly waived any immunity conferred by the statute when he so testified.\nThe Court of Appeals in State v. Comes, 237 Md. 271, rejected precisely such an argument. In referring to Comes, this Court in State v. Panagoulis, supra, stated:\n\"Comes held that under the statute here involved it was not necessary that a witness claim his privilege against self-incrimination in order to obtain the exemption afforded by the statute. We think it obvious that as the statute takes away the privilege, the witness cannot lose the immunity granted by the statute by failing to assert a privilege not available to him.\" 3 Md. App. at 338.\nNor was there any express waiver of immunity by the appellee. The appellee was not informed by the Assistant State's Attorney at the grand jury proceedings of the provisions of Article 27, § 298 (c). No written waiver of immunity was ever obtained. Nor was there any waiver of immunity by conduct, referred to in State v. Comes, 237 Md. at 282, as where a witness appears before a Grand Jury \"by subterfuge ..., collusion or otherwise.\" This Court in Panagoulis stated:\n\"We also think that there were no other circumstances shown sufficient to establish that the appellee otherwise waived immunity by his conduct. That he may have hoped to convince the grand jury that he was in no way culpable and so *148 prevent an indictment from being returned against him or that, in the words of the lower court, `his hope in going before the grand jury was to help himself,' are not sufficient to constitute a constructive waiver of immunity. Nor may he be denied the immunity because he in fact knew or was presumed to know the law and was thus aware that if he testified under the circumstances here present, he would be exempt from prosecution. The grand jury and the prosecuting authorities are also presumed to know the law, and when the appellee was permitted to testify without an express waiver of immunity by him, he was then, under the circumstances existing, in the absence of conduct on his part sufficient to constitute a waiver, exempt from prosecution, trial and punishment.\" 3 Md. App. at 339-340.\nAccordingly, we affirm the judgment of the court below in dismissing the indictments as to the appellee John Duer Moores.\nOrder dismissing indictments 17401237, 17401238, 17401239, 17401240, 17401241, 17401242 and 17401243, as to the appellee Moores, affirmed; order dismissing indictments 17401215, 17401231, 17401244 and 17401254 vacated; order dismissing first, second, third, fifth and sixth counts of all other indictments vacated; order dismissing fourth and seventh counts of all other indictments affirmed; case remanded for further proceedings; costs to be paid by the appellees Fearing, Herrmann, Lai, Cohen, Certeza and Polek.\nNOTES\n[1] Ultimately enacted on October 27, 1970.\n[2] We are not unaware of Article 38, § 1, which provides, in pertinent part:\n\n\"When any fine or penalty is imposed by any act of Assembly of this State ... for the doing of any act forbidden to be done by such act of Assembly ... the doing of such act ... shall be deemed to be a criminal offense. Any such offense may be prosecuted by the arrest of the offender for such offense and by holding him to appear in or committing him for trial in the court which has jurisdiction in the said cases and shall proceed to try or dispose of the same in the same manner as other criminal cases may be tried or proceeded with or disposed of, or such offenses may be prosecuted by indictment in such court.\"\nThe 1972 amendment to this Act simply made formal changes of wording to accommodate the language to the creation of the District Court of Maryland. For an application of this section, see Williams v. State, 4 Md. App. 342, 345-347, 242 A.2d 813.\nNotwithstanding the existence of Article 38, § 1, we are persuaded that when the Legislature adopted the Controlled Dangerous Substances Act in 1970 and in doing so incorporated bodily the provisions of the proposed draft of the Federal Controlled Substances Act, it intended the words and phrases under Maryland law to have the meaning which they had under the parent federal law.\n\n",
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| Court of Special Appeals of Maryland | Court of Special Appeals of Maryland | SA | Maryland, MD |
245,572 | null | 1958-06-23 | false | columbia-pictures-corporation-v-sheldon-m-grengs-twentieth-century-fox | null | null | Columbia Pictures Corporation v. Sheldon M. Grengs, Twentieth Century-Fox Film Corporation v. Sheldon M. Grengs, Warner Bros. Pictures Distributing Corp. v. Sheldon M. Grengs, Rko Teleradio Pictures, Inc. v. Sheldon M. Grengs, Universal Film Exchanges, Inc. v. Sheldon M. Grengs, Loew's Incorporated v. Sheldon M. Grengs | null | null | null | null | null | null | null | null | null | null | null | 3 | Published | null | null | [
"257 F.2d 45"
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"opinion_text": "257 F.2d 45\n COLUMBIA PICTURES CORPORATION, Plaintiff-Appellant,v.Sheldon M. GRENGS et al., Defendants-Appellees.TWENTIETH CENTURY-FOX FILM CORPORATION, Plaintiff-Appellant,v.Sheldon M. GRENGS et al., Defendants-Appellees.WARNER BROS. PICTURES DISTRIBUTING CORP., Plaintiff-Appellant,v.Sheldon M. GRENGS et al., Defendants-Appellees.RKO TELERADIO PICTURES, Inc., Plaintiff-Appellant,v.Sheldon M. GRENGS et al., Defendants-Appellees.UNIVERSAL FILM EXCHANGES, Inc., Plaintiff-Appellant,v.Sheldon M. GRENGS et al., Defendants-Appellees.LOEW'S INCORPORATED, Plaintiff-Appellant,v.Sheldon M. GRENGS et al., Defendants-Appellees.\n Nos. 12210-12215.\n United States Court of Appeals Seventh Circuit.\n June 23, 1958.\n \n Philip Neville, and Neville, Johnson & Thompson, Minneapolis, Minn., R. A. Crawford, and Crawford, Crawford & Cirilli, Superior, Wis., John F. Whicher, New York City, and Sargoy & Stein, New York City, for plaintiffs-appellants.\n Louis B. Schwartz, Samuel P. Halpern, Minneapolis, Minn., for appellees.\n Before FINNEGAN, SCHNACKENBERG, and PARKINSON, Circuit Judges.\n FINNEGAN, Circuit Judge.\n \n \n 1\n Each of the six motion picture distributors, involved in this appeal, commenced these diversity of citizenship cases against defendant motion picture exhibitors to recover actual and punitive damages claimed to have been occasioned by a conspiracy to defraud each plaintiff, respectively, in which the defendants named in each case were charged with having participated. The bare bones of plaintiff's allegations can be reported beginning with the statement that during the period March 1, 1947 to April 16, 1954, plaintiff had licensed the exhibition of numerous motion pictures at defendants' theaters, under its copyrights. A number of such motion pictures were licensed for fees and the amount of which was measured, in whole or in part, by a specified percentage of the box-office receipts from sales of admissions to each respective motion picture exhibition thus licensed. Defendants, pursuant to a fraudulent scheme initiated at the Hollywood Theater and expanded to the other controlled theaters as they were opened, falsely and fraudulently underreported to plaintiffs the box-office receipts of its percentage pictures exhibited at defendants' theaters. Plaintiffs claim that it relied on such false reports to its damage by billing defendants for, and accepting from them payments of, lower exhibition license fees, or \"film rentals,\" on the percentage pictures thus falsely underreported by defendants. The underreporting is claimed to have been carried out deliberately, with wanton disregard of plaintiffs' rights, and with intent to deceive, justifying assessment of punitive damages.\n \n \n 2\n While actual and punitive damages in excess of the jurisdictional minimum amount were twice alleged, in the original complaint, to be recoverable, plaintiffs pleaded inability to compute the exact amount of its actual damages, declaring that:\n \n \n 3\n \"The exact total amount of gross box office receipts actually derived from the exhibition of each of said pictures is at this time not known to the plaintiff and is peculiarly within the knowledge of defendants. Plaintiff is therefore unable at this time to state the exact amount of damages which it sustained as alleged * * *\"\n \n \n 4\n Allegations were made in the initial complaints to the effect \"that the damages to which plaintiff is entitled * * * are in excess of $3000.00 exclusive of interest and costs.\" After some preliminary skirmishing by counsel, and a flurry of affidavits concerning an audit undertaken by and for plaintiffs and partially completed of defendants' records, the district judge denied a defense motion to dismiss the complaints based on challenges to the jurisdictional amounts. Subsequently, and after several affidavits pertaining to the jurisdictional amount were filed, the district court sustained defendant's motions and the complaints were dismissed, without opinion, on the ground that the amount in controversy is less than the required amount, and plaintiff distributors appealed. The matters in dispute are separate and distinct as to each plaintiff and they do not rely on aggregating their claims to reach the statutory figure. All six actions are substantially the same; this jurisdictional question is common to all, and the causes were consolidated for trial below and we authorized the filing of consolidated briefs and appendices.\n \n \n 5\n We think this record shows the essential requisites of jurisdiction of the district court because \"the matter in controversy exceeds the sum or value of $3000 exclusive of interest and costs, and is between: (1) Citizens of different States * * *\" 28 U.S.C. § 1332(a). There is ample support, by way of affidavits among other things, for plaintiffs' allegations as to the jurisdictional amount. \"In a diversity litigation the value of the `matter in controversy' is measured not by the monetary result of determining the principle involved, but by its pecuniary consequence to those involved in the litigation * * *\" Thomson v. Gaskill, 1942, 315 U.S. 442, 447, 62 S. Ct. 673, 675, 86 L. Ed. 951. Obviously sham allegations and mere pretense should be penetrated when challenged, but the plaintiff need not twice establish his proof of value — once before trial on the merits and later on the merits when issues are joined under complaint and answer. Mere pretense of the disputed amount is one extreme in contrast with a jurisdictional claim appearing to be made in good faith. Bowman v. Chicago & Northwestern Railway Co., 1885, 115 U.S. 611, 6 S. Ct. 192, 29 L. Ed. 502. This means that there is a difference between creating jurisdiction and showing existence of jurisdiction. Though written in a removal case, the opinion by Mr. Justice Roberts, reported as St. Paul Mercury Indemnity Co. v. Red Cab Co., 1938, 303 U.S. 283, 288, 289, 58 S. Ct. 586, 590, 82 L. Ed. 845 contains several relevant benchmarks: \"The rule governing dismissal for want of jurisdiction in cases brought in the federal court is that, unless the law gives a different rule, the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal. The inability of plaintiff to recover an amount adequate to give the court jurisdiction does not show his bad faith or oust the jurisdiction. Nor does the fact that the complaint discloses the existence of a valid defense to the claim. But if, from the face of the pleadings, it is apparent, to a legal certainty, that the plaintiff cannot recover the amount claimed or if, from the proofs, the court is satisfied to a like certainty that the plaintiff never was entitled to recover that amount, and that his claim was therefore colorable for the purpose of conferring jurisdiction, the suit will be dismissed. Events occurring subsequent to the institution of suit which reduce the amount recoverable below the statutory limit do not oust jurisdiction.\" (Footnote of the court omitted.)\n \n \n 6\n There is nothing persuasive in this record reflecting upon the plaintiff's good faith in bringing these actions. Smithers v. Smith, 1907, 204 U.S. 632, 27 S. Ct. 297, 51 L. Ed. 656. See also Columbia Pictures Corporation v. Rogers, D.C. W.Va.1949, 81 F. Supp. 580. That punitive damages under Wisconsin law is apparently a debatable question fails in cutting ground from under plaintiffs' pleadings. Calhoun v. Kentucky-West Virginia Gas Co., 6 Cir., 1948, 166 F.2d 530.\n \n \n 7\n Defendants' arguments are singularly unimpressive and none of the points presented require extended refutation for it cannot be said, on this record, that plaintiffs' jurisdictional claims are \"plainly unsubstantial.\" There was enough of a showing made before the district judge the first time he denied the jurisdictional motion, manifesting merit in plaintiffs' position and, it continued, despite the view insisted upon by defendants. There simply is an inadequacy of evidence indicative of bad faith in plaintiffs' jurisdictional claim.\n \n \n 8\n Some language wrested from context, and outside the facts, reported in our opinion as Seslar v. Union Local 901, Inc., 7 Cir., 1950, 186 F.2d 403, 30 A.L.R. 2d 593, is unavailing to defendant.\n \n \n 9\n These appealed judgments are reversed and Causes Nos. 12210, 12211, 12212, 12213, 12214 and 12215 are remanded to the district court for trial on the merits.\n \n \n 10\n Reversed and remanded.\n \n \n 11\n SCHNACKENBERG, Circuit Judge.\n \n \n 12\n I concur in the result reached in Judge FINNEGAN'S opinion, but not with all that is said therein. See Seagram-Distillers Corp. v. New Cut Rate Liquors, 7 Cir., 245 F.2d 453, 455; Calvert Distillers Co. v. Wish, 7 Cir., 259 F.2d 323; McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S. Ct. 780, 80 L. Ed. 1135, and KVOS, Inc., v. Associated Press, 299 U.S. 269, 57 S. Ct. 197, 81 L. Ed. 183.\n \n ",
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| Seventh Circuit | Court of Appeals for the Seventh Circuit | F | USA, Federal |
1,810,253 | Beatty | 1979-05-25 | false | ex-parte-nix | null | Ex Parte Nix | null | null | null | null | null | null | null | null | null | null | null | null | 49 | Published | null | null | [
"370 So. 2d 1119"
]
| [
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"opinion_text": "\n370 So. 2d 1119 (1979)\nEx parte Charles Ray NIX.\n78-508.\nSupreme Court of Alabama.\nMay 25, 1979.\nBEATTY, Justice.\nWrit denied.\nTORBERT, C. J., and MADDOX, JONES and SHORES, JJ., concur.\n",
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| Supreme Court of Alabama | Supreme Court of Alabama | S | Alabama, AL |
27,756 | null | 2002-05-13 | false | in-re-martin | In Re: Martin | In Re: Martin | null | null | null | null | null | null | null | null | null | null | null | null | 0 | Unpublished | null | null | null | [
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"opinion_text": " UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n\n\n No. 02-30467\n No. 02-30469\n\n\n IN RE: LESLIE DALE MARTIN,\n\n Movant.\n\n_________________________________________________________________\n\n Motion for Stay of Execution and for Authorization to File a\n Successive Habeas Corpus Petition in the United States District\n Court for the Western District of Louisiana\n_________________________________________________________________\n May 10, 2002\n\n LESLIE DALE MARTIN,\n\n Petitioner-Appellant,\n\n versus\n\n BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,\n\n Respondent-Appellee.\n\n_________________________________________________________________\n\n Motion for Stay of Execution\n Appeal from the United States District Court for the Middle\n District of Louisiana\n (02-CV-453)\n_________________________________________________________________\n\n\nBefore KING, Chief Judge, and BARKSDALE and STEWART, Circuit\nJudges.\n\nPER CURIAM:*\n\n\n *\n Pursuant to 5TH CIR. R. 47.5, the court has determined that\nthis opinion should not be published and is not precedent except\nunder the limited circumstances set forth in 5TH CIR. R. 47.5.4.\n\f Leslie Dale Martin seeks a stay of his execution set for\n\ntoday, 10 May 2002; requests permission to file a successive 28\n\nU.S.C. § 2254 habeas application; and appeals the district court’s\n\n9 May 2002 dismissal and alternative transfer of his 28 U.S.C. §\n\n2241 habeas application (for us to consider whether to allow it to\n\nbe filed as a successive habeas application).\n\n Martin contends: Marlin Sweet, a key witness, perjured himself\n\nand Brady material was not disclosed concerning him; Martin’s trial\n\ncounsel was ineffective and represented him under a conflict of\n\ninterest; and Campbell v. Louisiana, 523 U.S. 392 (1998),\n\nconcerning discrimination in the selection of grand jury\n\nforepersons, should be retroactively applicable on collateral\n\nreview. MOTIONS DENIED and APPEAL DISMISSED.\n\n I.\n\n The following is stated in our 27 March 2001 affirmance of the\n\ndenial of Martin’s § 2254 habeas application.\n\n On 20 June 1991, Martin went to a bar in\n Lake Charles, Louisiana, where his companion,\n Roland, introduced him to the victim. Around\n 7:30 the next morning, Martin told his work\n supervisor that he had met a college student,\n left the bar with her, and woke up alone on\n Galveston Beach. The supervisor noticed\n scratches on Martin’s forehead, neck, and\n shoulder that had not been there the day\n before.\n\n When Martin returned to his aunt’s home\n (where he was residing), wearing different\n clothes from the previous night, and no shirt\n or shoes, his cousin observed scratches on his\n chest and back, a bite mark on his shoulder,\n\n 2\n\f and a tear under his tongue. Martin explained\n he had fought a “country boy” at the bar.\n\n That same morning, Martin related to\n another, Rushing, he thought he may have\n killed someone the previous night, and asked\n Rushing for an alibi. Although Rushing\n refused, Martin confided that the victim had\n threatened to report him for rape. Martin\n mentioned a shed in Iowa, Louisiana, and\n stated he had choked the victim with a rope,\n cut her throat, dug her eyes out, and jumped\n up and down on a wooden board placed on her\n neck. Subsequently, Rushing testified that\n Martin, who had served several years of a ten-\n year sentence for sexual battery, told him\n (Rushing) “he didn’t want to be turned in for\n rape again”.\n\n Rushing did not believe Martin’s story;\n but, nine days later, when he learned the\n victim had been missing since leaving the bar,\n he provided the information to police. During\n a search of sheds in the Iowa area,\n authorities discovered the victim’s\n decomposing body, with a rope around her neck,\n and a wooden board containing human blood\n nearby. There was little forensic evidence.\n A tampon taken from the body tested negative\n for seminal fluid; but, a forensic expert\n testified that, due to decomposition, the test\n could be a “false negative”.\n\n Under Louisiana law, first degree murder\n includes “killing ... a human being ... [w]hen\n the offender has specific intent to kill or to\n inflict great bodily harm and is engaged in\n the perpetration or attempted perpetration of\n ... aggravated rape....” LA. REV. STAT. ANN. §\n 14:30(A)(1) (emphasis added). Rape is\n aggravated “[w]hen the victim resists the act\n to the utmost, but whose resistance is\n overcome by force”. LA. REV. STAT. ANN. §\n 14:42(A)(1).\n\nMartin v. Cain, 246 F.3d 471, 473 (5th Cir. 2001) (emphasis in\n\noriginal), cert. denied, 122 S. Ct. 194 (2001).\n\n 3\n\f In Martin’s prosecution for first degree murder, three inmates\n\n(including Sweet) “who had been incarcerated with Martin after his\n\narrest ... each testified, in varying detail, that: Martin told\n\nthem he had sexual relations with the victim; she accused him of\n\nrape; and he killed her, because he did not want to return to\n\nprison. But, [of the three inmates’ testimony,] only Sweet’s ...\n\nestablished aggravated rape”. Id. at 474 (emphasis in original).\n\nNevertheless,\n\n Sweet’s testimony, with the exception of that\n about the aggravated nature of the rape, was\n corroborated by a number of other witnesses\n and other evidence, and Sweet’s testimony\n concerning the aggravated nature of the rape\n was, to some extent, corroborated by Marin’s\n visible physical injuries shortly after the\n murder.\n\nId. at 481.\n\n In 1992, Martin was convicted of first degree murder and\n\nsentenced to death. Id. at 474. In 1994, the Louisiana Supreme\n\nCourt affirmed his conviction and death sentence; the Supreme Court\n\nof the United States denied certiorari in 1995, Martin v.\n\nLouisiana, 515 U.S. 1105 (1995); in 1997, the state district court\n\ndenied his application for post-conviction relief, Martin, 246 F.3d\n\nat 475; and in 1998, the Louisiana Supreme Court denied his writ\n\napplication. Martin v. Cain, 709 So. 2d 693 (La. 1998).\n\n In 1999, the district court denied Martin’s first federal\n\nhabeas application, but granted a certificate of appealability\n\n\n 4\n\f(COA) on two issues concerning ineffective assistance of counsel,\n\nand a Brady violation concerning Sweet. Martin, 246 F.3d at 475.\n\nWe affirmed the denial. Martin v. Cain, 206 F.3d 450, 461 (5th\n\nCir.), vacated, 531 U.S. 801 (2000). On remand from the Supreme\n\nCourt of the United States (concerning the standard of review), we\n\nagain affirmed the denial of habeas relief. Martin, 246 F.3d at\n\n473.\n\n On 7 January 2002, Martin’s execution was set for 8 February\n\n2002. On 4 February, four days prior to the execution date, Martin\n\nfiled an application for post-conviction relief in Louisiana state\n\ncourt. The trial court denied the application on 5 February; on\n\nthe same day, Martin filed in Louisiana state court a supplemental\n\napplication for post-conviction relief. The trial court denied\n\nthe supplemental application; and, on 8 February, the Louisiana\n\nSupreme Court denied Martin’s writ application.\n\n That same day, the Supreme Court of the United States stayed\n\nMartin’s execution pending a ruling on his petition for certiorari\n\nconcerning the state court rulings. On 25 March, the Supreme Court\n\ndenied certiorari, Martin v. Cain, 122 S. Ct. 1372 (2002);\n\nMartin’s petition for rehearing was denied yesterday, 9 May.\n\n The pending request to file a successive habeas application is\n\nnot Martin’s first request to do so. On the prior 8 February 2002\n\nexecution date, Martin requested that we grant such permission,\n\nclaiming: his counsel was ineffective due to a conflict of\n\n\n 5\n\finterest; and the State had not disclosed Brady material concerning\n\nSweet. We denied the request. In re Martin, No. 02-30157 (5th\n\nCir. 8 Feb. 2002) (unpublished). Martin filed a “petition for\n\nhabeas corpus relief” with the Supreme Court concerning this\n\ndecision; the petition was denied on 15 April 2002.\n\n On 8 April, Martin’s execution date was reset for today, 10\n\nMay. On 23 April, he filed in Louisiana state court a petition for\n\npost-conviction relief. The trial court denied the petition on 2\n\nMay, and the Louisiana Supreme Court denied Martin’s writ\n\napplication on 9 May. That same day, Martin filed in the United\n\nStates District Court for the Middle District of Louisiana a habeas\n\npetition under 28 U.S.C. § 2241.\n\n On 9 May, the district court construed the petition as an\n\naction under 42 U.S.C. § 1983 and dismissed it for lack of\n\njurisdiction. In the alternative, the district court transferred\n\nthe petition to this court pursuant to 28 U.S.C. § 1631 for us to\n\ndetermine whether Martin should be permitted to file it as a\n\nsuccessive habeas petition.\n\n Also on 9 May, Martin filed the pending motions with this\n\ncourt, seeking a stay of execution as well as permission to file a\n\nsuccessive habeas petition concerning issues completely independent\n\nfrom his most recent federal district court filing concerning his\n\nclaim of denial of access to clemency. Today, 10 May, Martin filed\n\na notice of appeal from the district court’s 9 May judgment\n\n\n 6\n\fconcerning his § 2241 habeas petition, as well as another stay-of-\n\nexecution motion.\n\n II.\n\n A.\n\n In the request to file a successive habeas application, Martin\n\npresents three claims: Sweet, a key witness, perjured himself and\n\nBrady material was not disclosed concerning Sweet; Martin’s trial\n\ncounsel was ineffective due to his taking prescription psychiatric\n\nmedication and representing Martin under a conflict of interest;\n\nand he is entitled to benefit from a “new rule of constitutional\n\nlaw” announced in Campbell v. Louisiana, 523 U.S. 392 (1998),\n\nconcerning discrimination in the selection of grand jury\n\nforeperson. In conjunction with this request, Martin seeks a stay\n\nof execution.\n\n The Antiterrorism and Effective Death Penalty Act (AEDPA)\n\nrequires that, before “a second or successive application ... [can\n\nbe] filed in the district court, the applicant shall move in the\n\nappropriate court of appeals for an order authorizing the district\n\ncourt to consider the application”. 28 U.S.C. § 2244(b)(3)(A). As\n\nstated in subpart (b)(3)(C), authorization is to be given “only if\n\n... the application makes a prima facie showing that the\n\napplication satisfies the requirements of” 28 U.S.C. § 2244(b), as\n\nquoted below.\n\n\n\n\n 7\n\f A “claim presented in a second or successive habeas corpus\n\napplication under section 2254 that was presented in a prior\n\napplication shall be dismissed”. 28 U.S.C. § 2244(b)(1).\n\n A claim presented in a successive habeas petition not\n\npresented in a prior petition shall be dismissed unless:\n\n (A) the applicant shows that the claim relies\n on a new rule of constitutional law, made\n retroactive to cases on collateral review by\n the Supreme Court, that was previously\n unavailable; or\n\n (B)(i) the factual predicate for the claim\n could not have been discovered previously\n through the exercise of due diligence; and\n (ii) the facts underlying the claim, if proven\n and viewed in light of the evidence as a\n whole, would be sufficient to establish by\n clear and convincing evidence that, but for\n constitutional error, no reasonable factfinder\n would have found the applicant guilty of the\n underlying offense.\n\n28 U.S.C. § 2244(b)(2)(B).\n\n 1.\n\n Martin’s contention that he is entitled to relief under\n\nCampbell has not been presented in a prior application. He must\n\nshow Campbell has been made retroactively applicable to cases on\n\ncollateral review by the Supreme Court. 28 U.S.C. § 2244(b)(2)(A).\n\n“[A] new rule is not ‘made retroactive to cases on collateral\n\nreview’ unless the Supreme Court holds it to be retroactive”.\n\nTyler v. Cain, 533 U.S. 656, 664 (2001) (concerning successive\n\nhabeas petition relying upon § 2244(b)(2)(A)).\n\n\n\n 8\n\f Martin contends that pending before our court in another\n\nappeal is whether Campbell has been made retroactively applicable.\n\nNevertheless, for successive habeas purposes, the Supreme Court has\n\nnot made Campbell retroactively applicable to cases on collateral\n\nreview.\n\n 2.\n\n a.\n\n Martin’s remaining claims, relating to Sweet and his trial\n\ncounsel, were presented in his first federal habeas petition. See\n\nMartin v. Cain, 246 F.3d 471 (5th Cir. 2001). He cannot do so\n\nagain. See 28 U.S.C. § 2244(b)(1).\n\n b.\n\n Even assuming arguendo these claims are raised for the first\n\ntime, Martin has not made the required prima facie showing that:\n\n(1) their factual predicate could not have been discovered\n\npreviously through the exercise of due diligence, see 28 U.S.C. §\n\n2244(b)(2)(B)(i); and (2) that these assertions, if true, “would be\n\nsufficient to establish by clear and convincing evidence that, but\n\nfor constitutional error, no reasonable factfinder would have\n\nfound” Martin guilty of the underlying offense, see id. at §\n\n2244(b)(2)(B)(ii).\n\n To the extent Martin relies on newly discovered evidence in\n\nsupport of these claims, this evidence is not sufficient to make\n\nthe requisite prima facie showing that “but for constitutional\n\n\n 9\n\ferror, no reasonable factfinder would have found [Martin] guilty of\n\nthe underlying offense.” Id. Although the new evidence regarding\n\nSweet further undermines his credibility and Sweet’s testimony was\n\nquite important to the state’s case for aggravated rape, we cannot\n\nconclude that the jury’s verdict would have been different in light\n\nof the other evidence presented at trial. Although the other\n\nindividuals who testified as to what Martin had told them about his\n\ncommission of the offense did not provide information, as Sweet\n\ndid, indicating that Martin had perpetrated aggravated rape, they\n\ndid testify that Martin had told them that he had killed the victim\n\nwhen she accused him of rape. Further, as noted supra, the\n\nevidence of the physical injuries that Martin incurred on the night\n\nof the offense corroborated Sweet’s testimony.\n\n The new evidence that Martin proffers in support of his claim\n\nthat he was denied the assistance of trial counsel indicates that\n\nhis trial counsel, Bobby Pitre, suffered from a “mental breakdown”\n\nshortly before Martin’s trial and was taking psychiatric medication\n\nduring the trial. However, Martin does not attempt to demonstrate\n\nhow Pitre’s condition affected Pitre’s performance at trial.\n\nRather, Martin argues that prejudice should be presumed,\n\nanalogizing Pitre to the counsel who slept during trial whose\n\nperformance was at issue in Burdine v. Johnson, 262 F.3d 336 (5th\n\nCir. 2001) (en banc). Although we do not here rule out the\n\npossibility that medication taken by counsel or counsel’s mental\n\n\n 10\n\fcondition during trial may warrant a presumption of prejudice in\n\nsome circumstances, Martin’s new evidence does not demonstrate that\n\nhis case involves such circumstances because there is no indication\n\nthat Pitre was impaired in any way as a result of his medication or\n\nmental condition during Martin’s trial.\n\n B.\n\n Martin also contends: that he has a “free standing claim of\n\nfactual innocence”; and that, as a result, AEDPA’s requirements do\n\nnot prevent consideration of this claim. Restated, for such\n\n“factual innocence”, Martin claims an exception to AEDPA’s\n\nconstraints on successive habeas applications.\n\n AEDPA prescribes our habeas jurisdiction; the claimed\n\nexception is neither recognized in, nor permitted by, it. Martin’s\n\nclaim to an exception to AEDPA’s constraints is without merit.\n\nMoreover, this “factual innocence” claim has been repeatedly\n\nreviewed within the scheme established by AEDPA and found wanting.\n\n C.\n\n Martin’s 9 May 2002 habeas petition pursuant to 28 U.S.C. §\n\n2241 maintained he has been denied access to Louisiana’s executive\n\nclemency system. (This claim was denied in state court in February\n\n2002 but not presented then to the district court or our court.)\n\nToday, 10 May, Martin filed a notice of appeal from the district\n\ncourt’s judgment (denial). In conjunction with his appeal, he\n\nseeks a stay of execution.\n\n 1.\n\n 11\n\f a.\n\n Before being allowed to proceed on appeal, a habeas petitioner\n\nmust obtain a COA from “the final order in a habeas corpus\n\nproceeding in which the detention complained of arises out of\n\nprocess issued by a State court”. 28 U.S.C. § 2253(c)(1)(A)\n\n(emphasis added). Although a prisoner in federal custody need not\n\nobtain a COA to appeal the denial of a § 2241 petition, a prisoner\n\nin state custody, such as Martin, must do so. See Stringer v.\n\nWilliams, 161 F.3d 259, 262 (5th Cir. 1998) (“§ 2253 clearly does\n\nnot encompass challenges to federal detention under § 2241. Just\n\nas clearly, however, § 2253 does encompass challenges to state\n\ndetention under § 2241”.).\n\n Martin has not sought a COA, much less satisfied the standards\n\nfor obtaining one, discussed below. Accordingly, we cannot review\n\nthe habeas denial.\n\n b.\n\n Alternatively, construing Martin’s notice of appeal as a COA\n\nrequest and his brief as seeking to satisfy the standards for\n\nobtaining a COA, he has not satisfied those standards: he has not\n\n“made a substantial showing of the denial of a constitutional\n\nright”. 28 U.S.C. § 2253(c)(2). To do so, he must show\n\n“reasonable jurists could debate whether (or, for that matter,\n\nagree that) the petition should have been resolved in a different\n\nmanner or that the issues presented were adequate to deserve\n\n\n 12\n\fencouragement to proceed further”. Slack v. McDaniel, 529 U.S.\n\n473, 484 (2000) (citation and internal quotation marks omitted).\n\n Reasonable jurists could not disagree that the petition should\n\nbe denied because Martin has not even applied for clemency.\n\nFurthermore, reasonable jurists could not disagree with the\n\ndistrict court’s construction of the claim as arising under 42\n\nU.S.C. § 1983 and its dismissal of the petition for lack of\n\njurisdiction. See Moody v. Rodriguez, 164 F.3d 893, 893 (5th Cir.\n\n1999) (“Federal courts lack jurisdiction to stay executions under\n\n§ 1983.”) (internal quotation marks omitted).\n\n 2.\n\n The district court, in the alternative, transferred the\n\npetition to our court for us to determine whether to authorize\n\nfiling a successive habeas petition. This clemency claim does not\n\nrely on a new rule of constitutional law made retroactive to cases\n\non collateral review by the Supreme Court. In addition, Martin has\n\nnot shown that the factual predicate of this claim was not\n\navailable previously through the exercise of due diligence and\n\nthat, but for the claimed constitutional error, no reasonable\n\nfactfinder would have found Martin guilty of the underlying\n\noffense. See 28 U.S.C. § 2244(b)(2)(B)(i)-(ii).\n\n\n\n\n 13\n\f3.\n\n\n\n\n14\n\f In the alternative, to the extent the appeal is from the\n\ndismissal of § 1983 relief, we lack jurisdiction, as held by the\n\ndistrict court. See Moody, 164 F.3d at 893.\n\n D.\n\n Concomitantly, Martin has failed to satisfy the standard for\n\nobtaining a stay of execution.\n\n III.\n\n For the foregoing reasons all motions are DENIED; a COA is\n\nDENIED; and the appeal is DISMISSED.\n\n MOTIONS and COA DENIED; APPEAL DISMISSED\n\n\n\n\n 15\n\f",
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1,670,087 | Dixon | 1989-12-13 | false | american-bank-v-saxena | Saxena | American Bank v. Saxena | null | null | null | null | null | null | null | null | null | null | null | null | 39 | Published | null | null | [
"553 So. 2d 836"
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"opinion_text": "\n553 So. 2d 836 (1989)\nAMERICAN BANK\nv.\nRam S. SAXENA.\nNo. 89-CC-0927.\nSupreme Court of Louisiana.\nDecember 11, 1989.\nConcurring Opinion December 13, 1989.\n*837 William E. Brown, Linda R. Gallagher, Stone, Pigman, Walther, Wittman & Hutchinson, New Orleans, for plaintiff-applicant.\nLanny R. Zatzkis, Karen D. McCarthy, Lawrence E. Mack, Rhonda M. Benedetto, Law Office of Lanny R. Zatzkis, New Orleans, for defendant-respondent.\nDIXON, Chief Justice[*].\nPlaintiff bank filed three suits, seeking to enforce five delinquent promissory notes. Respondent debtor filed an answer and a number of reconventional demands, asserting defenses to the bank's claims. Plaintiff's motion for summary judgment in one of the three suits was denied. Subsequently, the three suits were consolidated and a motion for summary judgment in the consolidated suit was also denied, the trial judge finding a material question of fact. The court of appeal denied petitioner's writ application, reasoning the defendant is entitled to trial on the merits to resolve the issues of fact presented in the pleadings. We granted the plaintiff's writ application and now reverse in part and affirm in part.\nThe five promissory notes, ranging in value from 464,000 to $2,367,069, were signed in conjunction with loans defendant Saxena obtained from American Bank. Three of these loans were undertaken in connection with real estate ventures in which Saxena was involved, the Garden Vue Square Condominium Hotel, Garden Vue Lounge, and Condo Inns, Inc. The other two loans were \"personal.\" All five of the notes matured on December 1, 1987, and the bank filed suit in January of 1988, alleging the notes were delinquent and seeking payment of the unpaid balances and accrued interest, plus attorney's fees for 257 of the principal and interest. In his answer, Saxena pleaded the affirmative defenses of compensation, set-off, estoppel, failure of consideration and error. He also made reconventional demands, alleging failure of consideration, misrepresentation, and duress, and sought $10,500,000 in damages for lost property value and other injuries.\nSometime prior to 1982, Saxena bought three condominiums in each of two different projects, the Bordeaux and the Futura, from Frank Gatlin, head of Gatlin Construction Company. According to Saxena, Gatlin was the kind of guy \"who would walk in your office every morning with a project.\" Gatlin also tried to impress Saxena with his position as a member of American Bank's advisory board. At some point after the two men had begun to do business with each other and on one of his visits to Saxena, Gatlin brought along the then-president of American Bank, Richard Hollan. Gatlin presented Saxena with documents showing projected costs and revenues *838 of a proposed development called the Garden Vue Square Condominium Hotel, a project to be built in Kenner with a purported preconstruction appraised value of $4,500,000. After a series of meetings between Gatlin and Saxena at which this project was discussed, Hollan agreed, on behalf of the bank, to provide construction financing and Saxena decided to invest in the project.\nSubsequently, Saxena and Gatlin formed RF Enterprises, a partnership owned 51% by Saxena and 49% by Gatlin. Saxena provided $200,000 in certificates of deposit as security for the loan, as well as money to buy the land for a building site. Meanwhile, Gatlin's contribution to the project was to make the construction decisions, hire the subcontractors and supervise the project. (Saxena apparently provided the wherewithal behind RF Enterprises. He claims he made Gatlin several loans, the largest being $10,000, none of which were repaid). Gatlin built the condominiums and, as he sold each of the units, paid off the construction loan. He and Saxena each bought five of the eighty units in the hotel; Saxena's five units were financed at a lending institution other than American Bank. Shortly thereafter, Saxena bought five more units from the roofing subcontractor, who had decided he no longer wanted them. This purchase apparently was also financed at an institution other than American Bank.\nIt was not until some five years after these events that, Saxena contends, he learned Hollan had made but failed to keep certain preconstruction commitments: that the bank would supervise Gatlin's construction, and that it would obtain a post-construction preclosing appraisal of the property. Saxena has not produced the letter which he claims memorialized these agreements, nor does the record show he made any investigation as to whether these alleged commitments had been fulfilled. In addition, Saxena admits he made no effort to ascertain the value of the condominiums, but instead claims he relied totally on Gatlin and Hollan. He has raised these allegations in answer to the bank's suit on notes unrelated to the initial construction loan.\nLong before these troubles, when everything still was, in his words, \"goody-goody,\" Saxena obtained a 1983 loan of $120,336 from American Bank, the purpose of which was to provide operating capital for Condo Inns, Inc., an organization created to manage the Garden Vue Square Hotel. Originally, there were three or four owners of Condo Inns, with Gatlin and a relative in charge of the hotel's day-to-day operation. Then, in part because the hotel was losing money, Gatlin decided to pursue other interests and in 1984 Saxena bought all of the stock in and assumed sole ownership of Condo Inns. In the meantime, the 1983 loan for operating capital has never been paid off and is one of the loans being sued upon.\nGatlin had apparently sold many of the condominiums in the Garden Vue Hotel to various individuals, including several of the subcontractors on the project, who later decided they did not want their units. As a result, Saxena alleges that in 1984 Gatlin and Hollan approached him and asked whether he wanted to buy an additional thirty-two units. Saxena, claiming he relied on assurances by Hollan that the property was worth what he was paying for it, agreed and consequently undertook the largest of the five loans involved in this suit, the one supported by a note for $2,367,069. Again, Saxena made no independent effort to determine the worth of these units but claims he merely relied on assurances by Hollan and Gatlin that the units, for which he was paying an average of $79,600 each, were worth that much or more. It was not until 1987, in connection with domestic proceedings, that Saxena obtained an independent appraisal of the property purportedly showing the thirty-two units have a total value of as little as $900,000.\nAround the same time in 1984 when he purchased these additional condominiums, Saxena also purchased the Garden Vue Lounge, because the person who owned it wanted to sell, and Saxena wanted to keep a lounge in the hotel. That purchase was financed by American Bank and the promissory note supporting the loan is *839 also one that the bank is trying to enforce. Saxena contends the individual from whom he bought the lounge misrepresented the amount of profits the lounge was making; however, the seller is not a party to this suit and any such allegations of fraud are irrelevant to enforcement of the note. The final two promissory notes supported personal loans.\nSaxena also asserts the bank acted without authority in pledging, cross-pledging, appropriating and applying to the disputed loans some of the nearly $1,300,000 he had invested in certificates of deposit at the bank. Saxena contends the bank has never rendered an adequate accounting of either the amount of CDs he had purchased, the amount of interest owed on the CDs, or the current status of the funds he had invested in CDs. Furthermore, he claims the bank has failed to furnish an accounting of outstanding amounts due on the loans showing credit for payments made on the notes.\nIn its memorandum supporting the consolidated motion for summary judgment, the bank argues Saxena does not deny that he made the loans, that he received the money, that he pledged some of the CDs as collateral for the loans, or that the loans are in default. The bank acknowledges having cashed two pledged CDs, in the total amount of $240,000, and applied them to the $2,367,069 delinquent loan in accord with provisions of the collateral pledge agreement signed by Saxena. The bank also asserts the total amount of Saxena's CDs was $1,266,052 rather than the $1,300,000 he claims. With the exception of the $240,000 of pledged funds, the bank claims the value of the CDs has been returned to Saxena. In support of this claim, the bank produced a number of canceled checks and a handwritten accounting of the purported disposition of these funds.\nAlso in support of its consolidated motion for summary judgment, American Bank produced the affidavit of its current president listing the amount of principal and interest due on each of the loans. The bank argues that Saxena's claims are unliquidated and cannot be interposed against its own liquidated claim for the delinquent amounts. Moreover, the bank argues Saxena's reconventional demands relate to merely one of the five loans involved in this suit and thus cannot be asserted as a defense to the other four loans. Furthermore, American Bank argues Saxena's claims concerning misrepresentation and duress have prescribed, since alleged wrongdoing on the part of the bank took place several years before suit on the reconventional demands was filed.\nThe trial judge referred the prescription question to the merits and denied the motion for summary judgment, finding that a material question of fact existed. The court of appeal denied the writ. We granted the bank's application for supervisory writs to examine the propriety of the lower court rulings.\n\nTHE PROMISSORY NOTES\nAll of the notes being sued upon were preexisting obligations, renewed on December 1, 1986, and all matured on December 1, 1987. Saxena admits the loans are delinquent. He claims, however, that he stopped making payments on them only after Darryl Chauvin, current president of the bank, promised to return the value of the disputed $240,000 CD but applied this money to the loans instead. The bank originally filed three suits involving five notes. One of the notes was for purchase of thirty-two condos in the Garden Vue Square Condominium Hotel, one for purchase of the lounge in the hotel, one for operating capital to Condo Inns, Inc. which manages the hotel, and the other two were for personal loans. All three suits were filed January 5, 1988. For purposes of clarity, we consider the suits as they were presented to the district court.\nSuit 356-233. Suit was on two promissory notes for two personal loans. The initial summary judgment motion was heard and denied in this suit alone.\n(a) Promissory note 12345 was in the principal face amount of $150,000. Saxena agreed to make eleven monthly payments of $1800 and a final installment (on December 1, 1987) of $142,596.94. Saxena claims he made payments on this note but has *840 produced no proof of such payments, arguing the bank's records would reflect the amount of payment. The bank, meanwhile, gave Saxena credit for some amount of payment since it sued for only $143,922.53 in delinquent principal, $7,753.55 in accrued interest, plus additional interest from November 9, 1987 until date of judgment. The bank contends its records show the loan was undertaken a year before Saxena purchased the additional thirty-two units and was for the purpose of a personal investment. The note was unsecured.\n(b) Note 12346 was in the principal face amount of $68,128.12. Saxena agreed to make eleven monthly payments of $1400 and a final installment on December 1, 1987 of $58,079.82. Saxena alleges he made an undetermined number of payments, which he again contends the bank's records would reflect. The bank apparently deducted some amount of payment, since it sued for the delinquent amount of only slightly more than the final payment, seeking $60,605.19 in principal, $3,274.14 in accrued interest and additional interest from November 9, 1987 until date of judgment. This note was also unsecured. Bank records indicate Saxena used the proceeds to pay off a loan at another bank and the bank thus argues the note is unrelated to investment in Garden Vue Square.\nIn its memorandum in support of summary judgment, the bank contends Saxena does not deny these two notes have matured and are in default, but instead merely asserts unliquidated \"lender liability\" claims which are all related to the $2,367,000 loan sued on in Suit # 356-234, infra, and which can therefore not be urged as defenses in this suit.\nIn response, Saxena argues the notes are all interrelated and claims all five of these notes were undertaken because he believed his initial investment in the condominiums was worth what the bank told him it was. Saxena contends his claims are liquidated, since ascertainable, because he made payments on these loans for which he contends he never received an accounting. He also contends the bank applied a $150,000 CD to these two loans, and that his payments and the applied CD should have substantially reduced the amount owed. The bank's accounting of Saxena's CDs does not show application of a $150,000 CD to any of the loans. Saxena has produced no evidence showing that he had a $150,000 CD at American Bank which might have been applied to the loan and his unsubstantiated assertion that such is the case does not entitle him to credit for that amount.\nSuit 356-234. This suit sought enforcement of two promissory notes, which the bank has called Note A and Note B. Note A supported the loan for purchase of the thirty-two additional condominium units and Note B supported the loan for purchase of the Garden Vue Lounge.\n(a) Note A supported loan # 14944 made in 1984 for purchase of thirty-two Garden Vue Square Condominiums at an average cost of $79,600 each; the note has a face amount of $2,367,068.93. Contending the units are worth as little as $900,000, Saxena seeks damages of $1,500,000 in lost property value. The date of the original loan is not in the record. However, the promissory note was renewed on December 1, 1986 and called for eleven monthly payments of $20,542 and a final payment (due December 1, 1987) of $2,340,500.51. The bank recognizes some amount of payment or applied collateral since it sought $2,095,499.97 (an amount less than the amount of the final payment), plus accrued interest of $118,673.16 with additional interest from November 9, 1987 until date of judgment. This note was secured by two collateral pledge agreements (CPAs).\n(i) CPA 10115 is a demand collateral mortgage note dated May 31, 1984 in the amount of $3,000,000. The note is paraphed \"ne varietur\" for identification with an act of collateral mortgage on the thirty-two Garden Vue Square Condominiums.\n(ii) CPA 10112 pledged the disputed $240,000 in CDs which Saxena alleges the bank promised to release to him. The bank acknowledges it appropriated the CDs and applied them to this loan in accord with the terms of the pledge agreement, which provided for such action in the event of default. We find no merit to Saxena's contentions *841 that he was coerced into repledging the value of the CDs. The fact that the bank required the repledging of the CDs does not constitute coercion which would invalidate the pledge. Saxena further claims the bank placed the interest on these CDs into a separate account and that such interest has neither been paid to him nor accounted for. The bank, meanwhile, contends it has accounted for Saxena's CD funds by producing the handwritten record and copies of canceled checks issued to Saxena or to GEO, his geological consulting business.\nAlso of relevance to determination of the amount owed on this note is the bank's acknowledgment, in a post-argument brief submitted to this court, that between January 1988 and September 14, 1989, $207,681.78 in payments were received under a Keeper Order for the thirty-two condominiums. The bank admits that these payments apply to this loan and that they should be subtracted from the amount it sought in its summary judgment petition.\n(b) This suit also sought enforcement of Note B which supported loan # 14915, undertaken in connection with purchase of the Garden Vue Lounge. The principal face amount of the note is $64,090.69. Saxena agreed to make eleven monthly payments of $795.00 with a final payment, due on December 1, 1987, of $60,630.14. Saxena makes no specific allegations of payment on this loan. The bank apparently recognizes an undetermined amount of payment since its petition sought $60,166.91 (a little less than the amount of the final payment), accrued interest of $2,347 plus additional interest from November 9, 1987 until date of judgment.\nSecurity for this note was CPA 10117, a collateral mortgage note on the lounge in the amount of $100,000. Although the Keeper Order applies to the lounge as well as the condos, the bank says no payments on this loan have been received under that Order. Saxena contends he purchased the lounge based on misrepresentations concerning the amount of its profits. However, the seller of the lounge is not involved in this suit nor is he alleged to have had a connection to American Bank. Those allegations therefore provide no defense to the note.\nSuit 356-236. Suit was brought to enforce loan # 14927 which was made in 1983 to Condo Inns for operating capital. Originally, the bank brought suit only against Condo Inns, which is now in bankruptcy. The petition was later amended to include Saxena. As security for this note, Saxena signed a continuing guaranty dated June 1, 1983 in the amount of $101,000.\nThe face amount of the note was $120,335.58 and the payment agreement called for eleven monthly payments of $2,996.06 with a final payment, due December 1, 1987, of $96,925.59. In its petition, the bank sought $100,882.18 in principal balance, plus accrued interest of $3,943.47, and additional interest from November 9, 1987 until date of judgment. This is the only note for which the bank's ledger card is in the record. That document appears to show the most recent transaction involving this note was on October 6, 1987 when the outstanding balance was $103,848.24. As noted above, the bank's petition sought less than this amount. Saxena does not specifically allege payment on this note, but he contends the misrepresentation as to the value of the condos and his investment on that basis led to the necessity of undertaking this later loan. Bank records, on the other hand, show Saxena did not buy the additional thirty-two units until more than a year after this loan was made.\n\nANALYSIS\nAmerican Bank sought review of the orders of the trial court (1) denying its exception of prescription to the defendant's \"lender liability\" reconventional demands, and (2) denying its motion for summary judgment on the notes.\nThe bank contends the denial of its exception of prescription was in error because Saxena's deposition shows he had knowledge that the condominiums were worth less than he had paid six months to a year after he assumed management of the hotel in 1984. Saxena, on the other hand, contends he only learned of the property's *842 decreased value when he obtained the November 1987 appraisal. The trial judge referred the question of prescription to the merits, finding a material issue for trial because of the factual dispute as to when Saxena became aware of the alleged misrepresentations concerning the value of these properties.\n\"If the peremptory exception [of prescription] has been pleaded in the answer, or subsequently, but at or prior to the trial of the case, it shall be tried and disposed of either in advance of or on the trial of the case....\" C.C.P. 929(B).\nSince the exception was pleaded after the bank's answer to the reconventional demands, the trial judge's decision to hear the prescription issue at trial was appropriate. Whether Saxena's reconventional demands have prescribed can be decided upon the trial on the merits.\nIn order to determine whether the denial of the motion for summary judgment was proper, it must first be determined whether the bank is entitled to enforcement of the notes and, if it is, whether Saxena can defeat summary judgment of those notes by asserting unliquidated \"lender liability\" claims as set-off or compensation.\nUnder the Uniform Commercial Code, a \"holder\" is a person who is in possession of an instrument drawn or issued to him or his order. R.S. 10:1-201. A negotiable instrument must (a) be signed by the maker or drawer; and (b) contain an unconditional promise to pay a sum certain in money; and (c) be payable on demand or at a definite time; and (d) be payable to order or to bearer. R.S. 10:3-104. All five of these promissory notes were signed by Saxena as maker, contained an unconditional promise to pay sums certain in money, were payable on December 1, 1987, and were made to the order of American Bank. Therefore, the bank is a holder and, subject to claims of payment or satisfaction under R.S. 10:3-306, may enforce payment in its own name. R.S. 10:3-301.\nUnless specifically denied in the pleadings each signature on an instrument is admitted. R.S. 10:3-307(1). When signatures are admitted or established, production of the instrument entitles a holder to recover on it unless the defendant establishes a defense. R.S. 10:3-307(2).\n\"... Once signatures are proved or admitted, a holder makes out his case by mere production of the instrument, and is entitled to recover in the absence of any further evidence. The defendant has the burden of establishing any and all defenses, not only in the first instance but by a preponderance of the total evidence....\" R.S. 10:3-307, comment 2. (Emphasis added).\nSaxena has not denied his signatures on the instruments being sued upon and they are thus admitted. Saxena also does not deny that he made the loans, received the monies, or pledged collateral. Nor does he deny that the notes are in default. Thus, the bank has met its initial burden by producing the signed instruments and is entitled to recover unless Saxena establishes a defense by a preponderance of the evidence.\nThe payee may be a holder in due course, R.S. 10:3-302(2), if he takes an instrument for value, in good faith, and without notice of any defense or claim against it. R.S. 10:3-302(1). Against a holder in due course, the maker is limited to asserting \"real\" defenses, including fraud in the factum and duress, as provided in R.S. 10:3-305. Because Saxena has not established by a preponderance the available defenses allowed against a holder under R.S. 10:3-306, we need not consider the question of whether the bank's status is that of a holder in due course. Unless he has the rights of a holder in due course\n\"any person takes the instrument subject to\n. . . . .\n(b) all defenses of any party which would be available in an action on a simple contract; and\n(c) the defenses of want or failure of consideration, ...\" R.S. 10:3-306(b)(c).\nAmong other defenses, Saxena raises those of failure of consideration, duress, misrepresentation, and payment.\n*843 The arguments concerning failure of consideration and misrepresentation assert the thirty-two condominiums are not worth what Saxena paid for them. He alleges the bank misrepresented the value of the condominiums and that he purchased the units in reliance on that misrepresentation. Hence, he argues, the note supporting the loan made on those condominiums is unenforceable. The bank correctly asserts these defenses relate only to the $2,367,000 loan and not to the other four notes being sued upon. Even with respect to that loan, however, we find the arguments without merit.\nFundamentally, Saxena's argument is flawed because the only contracts between the bank and Saxena are the promissory notes themselves and his alleged defenses are unrelated to those contracts. Saxena, along with his partner in RF Enterprises, Frank Gatlin, developed this property. He claims not to have consulted an attorney, an accountant, or an appraiser either prior to his initial purchase of five units from RF Enterprises, or prior to the subsequent purchase of the thirty-two additional units. Instead he contends he decided to invest in the property in total reliance on what he alleges Gatlin and the bank told him. He charges Gatlin was the seller and, since he was a member of the bank's advisory board, was acting as an agent of the bank.\nThe record shows Saxena is not a novice real estate investor, that these condominiums were not Saxena's initial investments, and that he was involved with Gatlin before and after RF Enterprises developed Garden Vue Square. Moreover, Saxena apparently bought these thirty-two additional condominiums from neither the bank nor from Gatlin but from other unnamed individuals. The bank merely loaned Saxena the money he used to purchase the condominiums; the consideration for the promissory note was obviously the money loaned. In considering another case involving enforcement of a promissory note, we said, \"When the loan was made, defendant became impliedly bound to pay the indebtedness arising, and the note was given as evidence of his personal obligation to do so. It is therefore too clear for discussion that the note was given for a valuable consideration.\" Priest v. Wenzel, 168 La. 679, 680, 123 So. 121, 122 (1929). The defense of lack of consideration is without merit.\nSimilarly, Saxena has not shown misrepresentation by the bank. He has not claimed that he was induced by trickery or deceit to sign the notes, or that he was fooled as to the nature of what he was signing. Instead, Saxena claims the bank agreed to supervise Gatlin's construction and to obtain a preclosing, post-construction appraisal of the condominiums in 1982. First, these claims are not connected to any of the five notes which the bank seeks to enforce but involve alleged agreements made in connection with the initial construction of the condominiums and relate to a construction loan paid off in 1983. Second, aside from his bare allegation, Saxena has not produced any evidence which would support his claim that Hollan, as representative of the bank, made these alleged commitments. He also has not shown that Gatlin was an agent or employee of the bank or that his actions as a member of the bank's advisory board can be the basis of imputing liability to the bank. Although the record does show the bank might have discovered in 1986 that the condominiums might indeed have been worth less than Saxena paid for them, the record does not suggest Hollan or other bank officers knew at the time of the 1984 loan that the condominiums were worth less than what Saxena was paying. In fact, the bank appears to have relied, as did Saxena, on the $4,500,000 preconstruction appraisal.\nSimilarly, Saxena's claim of duress is without merit since he does not assert that he was coerced into buying the thirty-two condominium units or forced to undertake the other four loans. Instead he merely asserts that in 1985 he was forced to repledge CDs in order to obtain renewal of the loan on the condominiums. As we discussed above, such conditional renewal of a loan does not invalidate the pledge. Furthermore, the bank points out that subsequent to this \"forced\" repledge, Saxena voluntarily repledged the CD when he last *844 renewed the note in December of 1986. The claim is without merit.\nFinally, in an amended reconventional demand, Saxena alleged payment as a defense to the two personal loans. \"[P]ayment must be specifically pleaded and proved by the litigant asserting it.\" T. Hofman-Olsen, Inc. v. Northern Lumber Manufacturing Co., Inc., 160 La. 839, 846, 107 So. 593, 595 (1926). Although Saxena charges the bank's accounting of his CDs is inadequate, he has not provided any evidence in support of this claim. Saxena has not produced evidence of payment on any of the five loans but admits that he depends on the bank's records to establish the payments made, all the while contending he has not been credited for the full amount. \"The ... plea of payment is an affirmative defense, and the burden is upon the pleader to prove payment.\" Orleans Discount Co., Inc. v. Derbes, 170 La. 660, 662, 129 So. 121 (1930). Saxena seeks to place the burden of production on the bank and has, therefore, failed to meet the burden of proof.\nFor these reasons, we find Saxena has not met the burden of establishing that defenses to the notes exist. R.S. 10:3-306, comment 2. Saxena's theories of potential recovery do not relate to the contracts between him and the bank but rather involve allegations of wrongdoing and are grounded in tort.[1] However, Saxena further argues that even if his claims do not provide defenses to the notes, he should be allowed to use them as set-off or compensation against the amount he owes the bank. Thus, he argues, the interposition of these claims requires the summary judgment motion be denied. The doctrine of compensation is inapplicable.\nSet-off, or to use the codal term, compensation, takes place by operation of law when two persons owe to each other sums of money and these sums are liquidated and presently due. In such a case, compensation extinguishes both obligations to the extent of the lesser amount. C.C. 1893.\n\"The two debts must be equally liquid.... [A] liquid debt [is] one whose existence is certain and its quantity determined. A disputed debt is not liquid and cannot be admitted as susceptible of compensation unless the one who asserts compensation has in hand the proof of the existence of the disputed debt and is thus in a position to prove it promptly.\" 4 Aubry & Rau, Cours de Droit Civil Francais, s. 326 (6th ed. 1965).\nA claim is liquidated when the debt is for an amount capable of ascertainment by mere calculation in accordance with accepted legal standards. Sims v. Hays, 521 So. 2d 730, 733 (La.App. 2d Cir. 1988). Thus, a determination as to the liquidity of a claim is an essential prerequisite to deciding whether such a claim is a proper basis for a plea of compensation. Lack of sufficient liquidity and demandability will preclude such a plea. Hartley v. Hartley, 349 So. 2d 1258 (La. 1977) (husband's potential claim against community funds could not be used as compensation against wife's claim for past due alimony).\nCivil Code article 1893 must be read in conjunction with the rule providing that a party who asserts that an obligation is null, or that it has been modified or extinguished, must prove the facts or acts giving rise to the nullity, modification, or extinction. C.C. 1831. Under these rules, the burden of proof is placed on the proponent of the plea of compensation.\nHere Saxena's failure to deny that he made the loans, signed the notes or received the monies means he has admitted the debt. As for his claims against the bank, we find Saxena has not supported his factual allegations and has failed to establish *845 that a genuine issue concerning liability on the notes exists. Since Saxena has established no defenses to the notes, he is thus obligated to pay a sum of money that is liquidated and presently due.\n\"When a motion for summary judgment is made and supported ... [by affidavits, depositions and answers to interrogatories], an adverse party may not rest on the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.\" C.C.P. 967, par. 2.\nThus, on the showing made, summary judgment for the bank on the issue of liability is proper unless Saxena has been able to show that compensation is in order.\nHowever, we find no such showing has been made. Saxena's reconventional demands seek damages in tort, are heavily contested, and may or may not lead to recovery. Thus the debt defendant owes plaintiff has been admitted, while plaintiff denies liability for the debt claimed by defendant. Because the two obligations are clearly not equally liquidated and presently due, defendant has failed to meet the burden of proof and compensation is therefore not available.\nOur prior jurisprudence has barred the application of compensation to tort claims. Calvert Fire Insurance Company v. Lewis, 231 La. 859, 863, n. 1, 93 So. 2d 194, 195, n. 1 (1957); see also Franz v. Schiro, 136 La. 841, 67 So. 925 (1915). Our courts of appeal in similar cases have decided that an unliquidated claim for damages may not be off-set against a liquidated claim. See e.g., Gulf Federal Savings and Loan Association v. Nugent, 528 So. 2d 785 (La.App. 3d Cir.1988); Coburn v. Commercial National Bank, 453 So. 2d 597, 605 n. 2 (La.App. 2d Cir.1984).\nIn a case similar to the instant one, American Bank & Trust Company in Monroe v. Carson Homes, Inc., 344 So. 2d 456 (La.App. 2d Cir. 1977), writ denied, 346 So. 2d 221 (La.1977), the trial court granted summary judgment to plaintiffs seeking enforcement of a promissory note. The defendants appealed, arguing the grant of summary judgment was in error in light of their reconventional demand for damages for fraud, deceit, and misrepresentation. Those allegations were not urged as a defense to the demands of plaintiff, but were asserted as a separate cause of action for damages by reconventional demand. As is the case here, the allegations of fact made by defendants in their reconventional demand were not directed at any invalidity in the confection of the notes or mortgages sued on. Instead those claims related to damages suffered as the result of the bank's failure to carry out an alleged commitment to provide financing for defendants' construction project. The court of appeal correctly upheld the grant of summary judgment, finding that defendants' action for fraud was separate and distinct from the undisputed issues covered by the partial summary judgment. American Bank & Trust Company in Monroe v. Carson Homes, Inc., supra at 459.\nSummary judgment is designed to dispose of frivolous demands and defenses. It is appropriate only when there is no genuine issue of material fact and mover is entitled to judgment as a matter of law. C.C.P. 966; Schaefer v. Lynch, 406 So. 2d 185, 187 (La. 1981). The well settled rule is that a motion for summary judgment should be granted if, and only if, the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, show that there is no genuine issue as to material fact, and that mover is entitled to summary judgment as a matter of law. C.C.P. 966; Thornhill v. Black, Sivalls & Bryson, Inc., 394 So. 2d 1189, 1191 (La.1981). The burden is on the mover to show clearly that there is not a genuine issue of material fact in dispute, and any reasonable doubt as to the existence of a genuine issue of material fact must be resolved against the mover and in favor of trial on the merits. Industrial Sand and Abrasives, Inc. v. Louisville and Nashville Railroad Company, 427 So. 2d 1152, 1153 (La.1983). On the other hand, it is clear that the opposing party is not entitled to have the motion denied on the mere hope *846 that at trial he will be able to discredit movant's evidence; he must, at the hearing, be able to point out to the court something indicating the existence of a triable issue of material fact. 6-Pt. 2 Moore's Federal Practice s. 56.15[4].\nWe find there is no genuine issue of fact concerning liability on the five promissory notes. Saxena has established no defenses against enforcement of the notes. He has produced no testimony or other factual evidence supporting his claim that he did not get sufficient credit for reductions to the amounts owed on these five notes. The claims raised in his reconventional demands are separate and distinct from the question of liability and thus cannot be urged as set-off against the claims of the bank. We therefore hold the bank's motion for summary judgment was improperly denied and accordingly reverse the lower courts' rulings and order summary judgment for enforcement of the five notes. The trial court is ordered to compute the sum due the bank, taking into account the sum the bank has acknowledged receiving under the Keeper Order and interest due on the principal amount of the notes at 8.5% from November 8, 1987 through date of this judgment. The remaining issues, which include the claims raised in the reconventional demands, the question of prescription, and the question of whether and what amount of attorney fees the bank may be entitled to, are preserved for trial.\n\nDECREE\nThe judgment of the district court is reversed in part; summary judgment is rendered for the bank for enforcement of the promissory notes. The validity of the collateral pledge agreements and the collateral mortgages is recognized.[2] The trial judge's decision to refer the question of prescription to the merits is affirmed. The case is remanded to the district court for computation of principal and interest due on the notes and for further proceedings consistent with this opinion.\nCALOGERO, J., concurs for reasons assigned by LEMMON, J.\nLEMMON, J., concurs and assigns reasons.\nLEMMON, Justice, concurring.\nWhen there is a principal demand and a reconventional demand and either party moves for a summary judgment, the court generally may render judgment if there is no genuine issue of material fact and the mover is entitled thereto as a matter of law. La.C.C.P. art. 966B. If there are no triable issues of fact as to the principal demand but there are as to the reconventional demand, or vice versa, the court may render summary judgment as to the demand which does not involve a genuine factual issue. See Moore's Federal Practice ¶ 56.17[15] (1988). One reason for my voting to grant certiorari in the present case was to determine whether the court has the discretion to withhold granting a summary judgment as to the demand in which there is no genuine issue of fact (or stay the enforcement of the judgment on that demand) until the rendition of judgment on the other demand.\nLa.C.C.P. art. 1038 provides:\nThe court may order the separate trial of the principal and incidental actions, either on exceptions or on the merits; and after adjudicating the action first tried, shall retain jurisdiction for the adjudication of the other.\nWhen the principal and incidental actions are tried separately, the court may *847 render and sign separate judgments thereon. When in the interests of justice, the court may withhold the signing of the judgment on the action first tried until the signing of the judgment on the other, (emphasis added).\nArticle 1038 thus provides authority to the court, when the demands are tried separately and the interests of justice are served thereby, to withhold signing of the judgment on one demand until the signing of the judgment on the other. This authority is broad enough to authorize withholding signing of the judgment in a demand tried by summary judgment until the signing of the judgment on the other demand, if the interests of justice dictate the use of such discretion.[1] Therefore, although there may be no genuine issue of material fact on the principal demand in a particular case and the mover may be entitled to summary judgment as a matter of law, the trial court is not required to render judgment if the interests of justice dictate withholding signing of that judgment until the signing of the judgment on the reconventional demand. Of course, the court may abuse the discretion afforded by Article 1038, but each case must be decided on its own merits.\nIn the present case the trial judge did not exercise the option available under Article 1038 to grant the bank's motion for summary judgment and withhold signing the judgment. The judge simply denied the motion. This judgment is clearly correct as to four of the five notes.[2] Although the question of a summary judgment on the $2,367,069 note is closer, I cannot say the majority is in error.\nNOTES\n[*] Honorable Daniel W. LeBlanc, Judge, Court of Appeal, First Circuit, participated in this case in place of Associate Justice Jack Crozier Watson, recused.\n[1] In addition to the claims discussed above, Saxena's reconventional demands allege bad faith, negligence and breach of a fiduciary duty. We do not address the merit of those claims but do note Saxena has failed to support his claim that the bank owed a duty to obtain a post-construction appraisal or to supervise Gatlin's construction. In addition, claims concerning violations of the Louisiana Blue Sky Laws and Louisiana Condominium Law involve wrongs allegedly committed by Gatlin as agent for the bank; as noted above, this record before us does not support a finding of agency.\n[2] The notes sued upon in Suit 356-234 were both supported by collateral pledge agreements pledging collateral mortgages on the thirty-two additional condominiums and the Garden Vue Lounge. The loan for the condominiums was secured by collateral pledge agreement 10115 by which Saxena pledged a $3,000,000 collateral mortgage note paraphed \"ne varietur\" for identification with an act of collateral mortgage passed before Alvin A. LeBlanc, Jr., Notary Public, dated May 31, 1984, recorded in Jefferson Parish, Louisiana in MOB 920, Folio 921. The loan for the lounge was secured by collateral pledge agreement 10117 by which Saxena pledged a $100,000 demand collateral mortgage note paraphed \"ne varietur\" for identification with an act of collateral mortgage passed before Jerome M. Volk, Jr., Notary Public, dated May 16, 1984, recorded in Jefferson Parish, Louisiana in MOB 919, Folio 754.\n[1] Use of this discretion effectively does away with the necessity of trying one of the demands, but prevents execution of a judgment on that demand until the other demand is tried and adjudicated. See La.C.C.P. art. 1038, Official Revision Comment (b).\n[2] The one suit on five notes is a proper cumulation of five actions. See La.C.C.P. art. 462. Therefore, the court would have been authorized to render a partial final judgment dismissing four of the five cumulated actions. See La.C.C.P. art. 1914.\n\n",
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| Supreme Court of Louisiana | Supreme Court of Louisiana | S | Louisiana, LA |
1,059,455 | Kinser | 2001-06-08 | false | weitz-v-hudson | Weitz | Weitz v. Hudson | Benjamin B. Weitz v. Donald E. Hudson | Walter C. Jacob for appellant., Helen E. Marmoll for appellee. | null | null | null | null | null | null | null | null | null | null | 1 | Published | null | <parties id="b250-3">
Benjamin B. Weitz v. Donald E. Hudson
</parties><br><docketnumber id="b250-6">
Record No. 002073
</docketnumber><decisiondate id="A7q">
June 8, 2001
</decisiondate><judges id="ASn">
Present: All the Justices
</judges><br><attorneys id="b251-9">
<span citation-index="1" class="star-pagination" label="225">
*225
</span>
<em>
Walter C. Jacob
</em>
for appellant.
</attorneys><br><attorneys id="b251-10">
<em>
Helen E. Marmoll
</em>
for appellee.
</attorneys> | [
"546 S.E.2d 732",
"262 Va. 224"
]
| [
{
"author_str": "Kinser",
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"type": "010combined",
"page_count": 9,
"download_url": "http://www.courts.state.va.us/opinions/opnscvwp/1002073.pdf",
"author_id": 5934,
"opinion_text": "\n546 S.E.2d 732 (2001)\n262 Va. 224\nBenjamin B. WEITZ\nv.\nDonald E. HUDSON.\nRecord No. 002073.\nSupreme Court of Virginia.\nJune 8, 2001.\n*733 Walter C. Jacobs, Sterling, for appellant.\nHelen E. Marmoll, Haymarket, for appellee.\nPresent: All the Justices.\nKINSER, Justice.\nPursuant to Code § 8.01-581.016, this case is an interlocutory appeal from an order denying an application to compel arbitration.[1] Because we conclude that the specific controversy alleged in a motion for judgment is covered by an arbitration clause in a limited partnership agreement, we will reverse the judgment of the circuit court.\n\nFACTS AND MATERIAL PROCEEDINGS\nThe appellee, Donald E. Hudson, and the appellant, Benjamin B. Weitz, were general partners in a limited partnership formed under the laws of the State of Maryland and known as Leesburg Manor Associates Limited Partnership (Leesburg Manor).[2] Weitz also served as the managing general partner.[3] The limited partnership agreement, entered into in April 1972, contained two provisions that are at issue in this appeal. The first provision, paragraph 20, addresses the arbitration of disputes:\nAny dispute or controversy arising under, out of, in connection with, or in relation to this Agreement, and any amendments or proposed amendments hereto, shall be determined and settled by arbitration in Baltimore, Maryland pursuant to the Rules of the American Arbitration Association then obtaining. Any award rendered therein shall be final and binding upon the parties hereto, and judgment may be entered thereon in any court of competent jurisdiction.\nThe second relevant paragraph, number 16(b), establishes the order of distributing proceeds from the liquidation of Leesburg Manor's assets. That paragraph provides that, after the payment of all debts and liabilities, such proceeds shall be applied\n[t]o the setting up of any reserves which the General Partners or special liquidator may deem reasonably necessary for any contingent or unforeseen liabilities or obligations of the Partnership or of the General Partners arising out of or in connection with the Partnership or its liquidation.\nIn February 1999, Leesburg Manor sold its principal asset, an apartment complex. A distribution of the proceeds from that sale indicated that Hudson was to receive the sum of $51,884. However, Weitz allegedly withheld Hudson's share of the proceeds and placed the money in an \"interest bearing escrow account,\" telling Hudson that he had done so to assure \"that [Hudson's] indemnification liability to [Weitz and another general partner] will be met in small part.\"\nHudson then filed a motion for judgment against Weitz, alleging wrongful conversion and misappropriation of Hudson's share of those sale proceeds. Hudson alleges that Weitz's decision to escrow those funds has nothing to do with Leesburg Manor. Instead, he claims that Weitz acted in retaliation against Hudson because of Hudson's cooperation with limited partners in other *734 partnerships in which both Hudson and Weitz were general partners. Therefore, Hudson contends that Weitz illegally converted the funds.\nPursuant to Code § 8.01-581.02(A), Weitz filed an application to compel arbitration.[4] At a subsequent hearing on Weitz's application, the court declined to receive any evidence, but heard argument of counsel. During that hearing, the court indicated that it would grant the application if Weitz agreed that he would not present any affirmative defenses to the arbitrator or explain why he escrowed the funds. The court stated:\n[If] Mr. Weitz will agree for purposes of this suit that his sole defense is he was acting within his authority under the agreement . . . then I'll send it to arbitration.\nBut if he wants to argue other things[,]... about six or seven ... affirmative defenses[,]... then the motion for arbitration is denied ..\nThe court opined that Weitz's assertion that he escrowed the funds because he was afraid that Hudson would move to Florida and leave Weitz solely responsible for the partnership's liabilities has nothing to do with the partnership agreement.[5]\nWeitz declined to limit his defense before the arbitrator. Accordingly, the court entered an order denying his application to compel arbitration. Weitz appeals from that order.\n\nANALYSIS\nThe dispositive question on appeal is whether the specific controversy alleged in Hudson's motion for judgment is subject to arbitration under paragraph 20 of the partnership agreement.[6] Hudson answers this question in the negative because he claims that this case is just about the conversion or misappropriation of funds and that the arbitration clause does not encompass intentional torts. According to Hudson, the dispute is not between two general partners. Instead, Hudson asserts that the controversy is between two individuals who were general partners in several partnerships, and involves an act of revenge or \"self-help personal financial protection\" by Weitz. Finally, Hudson argues that there is no provision of the partnership agreement to which the parties must refer in order to resolve the dispute alleged in the motion for judgment. We do not agree with Hudson's arguments.\nAs we have said previously, a party cannot be compelled to arbitrate a question that is not arbitrable under the agreement between the parties. Doyle & Russell, Inc. v. Roanoke Hosp., Assoc., 213 Va. 489, 494, 193 S.E.2d 662, 666 (1973). \"[T]he extent of the duty to arbitrate, just as the initial duty to arbitrate at all, arises from contractual undertakings.\" Id. Thus, we begin our analysis of the question before us by considering the language of the parties' contract, specifically paragraph 20 of the partnership agreement.\n*735 According to the terms of that paragraph, the parties agreed to arbitrate \"[a]ny dispute or controversy\" that arises either \"under, out of, in connection with\" or \"in relation to\" the partnership agreement. This Court has described language that is strikingly similar to, and perhaps even less expansive than, the terms of paragraph 20 as \"very broad in its coverage.\" Waterfront Marine Constr., Inc. v. North End 49ers Sandbridge Bulkhead Groups A, B and C, 251 Va. 417, 426, 468 S.E.2d 894, 899 (1996) (citing McMullin v. Union Land & Mgmt. Co., 242 Va. 337, 341, 410 S.E.2d 636, 639 (1991)). In McMullin, the contract language required arbitration of \"[a]ny claim or controversy arising out of or relating to\" the parties' agreement. 242 Va. at 340, 410 S.E.2d at 638. In discussing the arbitration clause in McMullin, we stated that \"`[b]road language of this nature covers contract-generated or contract-related disputes between the parties however labeled.'\" 242 Va. at 341, 410 S.E.2d at 639 (quoting Maldonado v. PPG Indus., Inc., 514 F.2d 614, 616 n. 6 (1st Cir.1975)). We further recognized that \"`[a]n arbitration clause covering claims \"relating to\" a contract is broader than a clause covering claims \"arising out of a contract.'\" 242 Va. at 341, 410 S.E.2d at 639 (quoting International Talent Group, Inc. v. Copyright Management, Inc., 629 F.Supp. 587, 592 (S.D.N.Y.1986)).\nBased on our prior cases and the terms employed in paragraph 20, we conclude that the specific controversy alleged in the motion for judgment is a dispute \"in relation to\" the partnership agreement. Hudson alleges that Weitz converted funds belonging to Hudson, but Weitz asserts that he had a right, as the managing general partner, to escrow those funds from the sale of Leesburg Manor's asset. Weitz relies on paragraph 16(b) as the source of his authority. That provision authorizes a reserve fund to be set up \"for any contingent or unforeseen liabilities or obligations of the Partnership or of the General Partners arising out of or in connection with the Partnership or its liquidation.\" Thus, to resolve the controversy, paragraph 16(b) will need to be construed or applied to determine whether Weitz converted the funds at issue or properly escrowed them. See McMullin, 242 Va. at 342, 410 S.E.2d at 639 (because parties had to refer to agreement to resolve controversy, dispute was one \"relating to\" agreement).\n\nCONCLUSION\nFor these reasons, we conclude that the circuit court erred in denying Weitz's application to compel arbitration. Accordingly, we will reverse the judgment of the circuit court and remand for further proceedings consistent with this opinion and in accordance with the Uniform Arbitration Act, Code §§ 8.01-581.01 through -581.016.[7] On remand, the circuit court must determine whether any new issues raised in the amended motion for judgment are subject to arbitration, and if not, whether they are severable or subject to the stay. See Code § 8.01-581.01 through -581.016.\nReversed and remanded.\nNOTES\n[1] In pertinent part, Code § 8.01-581.016 authorizes an appeal from \"[an] order denying an application to compel arbitration made under § 8.01-581.02.\"\n[2] Leesburg Manor originally had two other general partners.\n[3] Paragraph 9(i) of the partnership agreement states that \"[t]he General Partners may designate one General Partner as the Managing General Partner, who shall have and may exercise all of the powers of the General Partners, as if he were the sole General Partner.\"\n[4] Code § 8.01-581.02(A) provides that\n\n[o]n application of a party showing an agreement described in § 8.01-581.01, and the opposing party's refusal to arbitrate, the court shall order the parties to proceed with arbitration. However, if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue of the existence of an agreement and shall order arbitration only if found for the moving party.\n[5] Prior to the commencement of this action, both Hudson and Weitz, along with another general partner in Leesburg Manor and several other partnerships, were sued jointly and severally in Maryland. Hudson allegedly told Weitz that he was moving his permanent residence from West Virginia to Florida to insulate his personal and marital assets in the event that an adverse judgment should be entered against him in that case. Hudson allegedly stated that, under West Virginia law, spouses' jointly held assets are subject to the claims of either spouse's judgment creditors, whereas under Florida law, they are not. Hudson allegedly did move his legal residence to Florida.\n[6] After Weitz filed his notice of appeal to this Court, Hudson moved for leave to amend his motion for judgment. Although the circuit court granted that motion, the allegations with regard to additional sums of money withheld by Weitz were not before the court when it denied the application to compel arbitration. Consequently, we will not consider Hudson's allegations in his amended motion for judgment in the disposition of this appeal,\n[7] In light of our decision, we do not reach Weitz's remaining assignment of error.\n\n",
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| Supreme Court of Virginia | Supreme Court of Virginia | S | Virginia, VA |
1,426,563 | Fox | 1958-03-06 | false | sonleitner-v-superior-court | Sonleitner | Sonleitner v. Superior Court | JOHN P. SONLEITNER, Petitioner, v. SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; STATE BOARD OF EQUALIZATION, Real Party in Interest | Edward H. Blixt for Petitioner., No appearance for Respondent., Edmund G. Brown, Attorney General, James E. Sabine, Assistant Attorney General, Dan Kaufmann and James C. Maupin, Deputy Attorneys General, for Real Party in Interest. | null | null | null | null | null | null | null | null | null | null | 10 | Published | null | <docketnumber data-order="0" data-type="docketnumber" id="b276-3">
[Civ. No. 22927.
</docketnumber><court data-order="1" data-type="court" id="AnV">
Second Dist., Div. Two.
</court><decisiondate data-order="2" data-type="decisiondate" id="APA">
Mar. 6, 1958.]
</decisiondate><br><parties data-order="3" data-type="parties" id="b276-4">
JOHN P. SONLEITNER, Petitioner, v. SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; STATE BOARD OF EQUALIZATION, Real Party in Interest.
</parties><br><p data-order="4" data-type="attorneys" id="b277-5">
<span citation-index="1" class="star-pagination" label="259">
*259
</span>
Edward H. Blixt for Petitioner.
</p><br><p data-order="5" data-type="attorneys" id="b277-6">
No appearance for Respondent.
</p><br><p data-order="6" data-type="attorneys" id="b277-7">
Edmund G. Brown, Attorney General, James E. Sabine, Assistant Attorney General, Dan Kaufmann and James C. Maupin, Deputy Attorneys General, for Real Party in Interest.
</p> | [
"158 Cal. App. 2d 258"
]
| [
{
"author_str": "Fox",
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"opinion_text": "\n158 Cal. App. 2d 258 (1958)\nJOHN P. SONLEITNER, Petitioner,\nv.\nSUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; STATE BOARD OF EQUALIZATION, Real Party in Interest.\nCiv. No. 22927. \nCalifornia Court of Appeals. Second Dist., Div. Two. \nMar. 6, 1958.\n Edward H. Blixt for Petitioner.\n No appearance for Respondent.\n Edmund G. Brown, Attorney General, James E. Sabine, Assistant Attorney General, Dan Kaufmann and James C. Maupin, Deputy Attorneys General, for Real Party in Interest.\n FOX, P. J.\n Petitioner seeks a peremptory writ of prohibition to prevent respondent court from proceeding without a jury in the case of People v. Sonleitner (L.A. Superior Court Number 105648). The complaint in that case alleges that during the period from November 1, 1951, to July 31, 1955, petitioner made taxable distributions of motor vehicle fuel within the state without possessing a distributor's license, and that the Board of Equalization ascertained as best it could the amount of the unlicensed distribution and determined the tax due, adding interest and a penalty of 100 per cent of the amount of the tax, as prescribed by sections 7706 and 7727 of the Revenue and Taxation Code. The complaint further alleges that the determination of the board became final and was not paid, and the total amount (about $130,000), together with additional penalties and interest, is presently due and owing. Petitioner raised several questions of fact by his answer, which included a general denial and four affirmative defenses.\n Thereafter, the state filed a memorandum to set the matter for a nonjury trial. Defendant objected. The state then made a motion for trial without a jury; the court granted that motion and set the cause for trial.\n The purpose of the instant proceeding is the collection of motor vehicle fuel license taxes under part 2 of the Revenue and Taxation Code. [1] The right to trial by jury is guaranteed in section 7 of article I of the California Constitution. However, this guarantee extends only to those cases wherein the right to a jury trial existed at common law. (People v. One 1941 Chevrolet Coupe, 37 Cal. 2d 283, 286-287 [231 P.2d 832]; Phyle v. Duffy, 34 Cal. 2d 144, 148 [208 P.2d 668].) \"As thus presented, the question is an historical one. Although the common law forms of action are abolished and law and equity *260 are united in one forum, the problem of right to a jury trial must still be approached in the context of 1850 common law pleading.\" (Ripling v. Superior Court, 112 Cal. App. 2d 399, 402 [247 P.2d 117].) [2] It appears that the right to trial by jury has never been extended to cases involving the collection of taxes. In Hagar v. Board of Supervisors of Yolo County, 47 Cal. 222, 234, the court stated that \"the right of trial by jury, has no application to proceedings for the collection of taxes.\" Although no other California case has specifically dealt with this issue (cf. People v. Skinner, 18 Cal. 2d 349, 354-355 [115 P.2d 488, 149 A.L.R. 299]), it is well settled in other jurisdictions that there is no right under the general constitutional provisions to a jury trial in statutory or summary proceedings for the collection of taxes. [fn. *] The reasoning behind the denial of a jury trial in such proceedings is clear. [3] To construe the constitutional jury trial guarantee as entitling a person to have a trial by jury on every demand made upon him for taxes would cause interference and delay in tax collection. Since tax collection proceedings traditionally have been summary in nature, such a construction of so important a constitutional provision could not have been intended. (See 3 Cooley, Taxation 2616-2617 (4th ed.).) In *261 other words, \"to pursue every delinquent liable to pay taxes through the forms of process and a jury trial would materially impede, if not wholly obstruct, the collection of the revenue; and it is not believed that such a mode was contemplated by the Constitution.\" (Cowles v. Brittain, 9 N.C. 204, 207; see also Cooley, op. cit. supra at 2619.)\n The only case upon which petitioner relies is Grossblatt v. Wright, 108 Cal. App. 2d 475 [239 P.2d 19]. In that case a private person commenced an action against his landlord to recover treble damages, attorney's fees and costs under the United States Housing and Rent Act of 1947 because the latter demanded and accepted rent in amounts above the maximum prescribed rates. The court held that the action, though founded upon a statute which did not exist at common law, was essentially an action of debt, and the defendant was therefore entitled to a jury trial. The court observed (p. 486): \"A jury trial was a matter of right in the common-law action of debt, and consequently it exists in all civil actions under modern practice which formerly would have fallen within this form of action.\" It is thus clear that the very basis upon which the Grossblatt case was decided makes it distinguishable from the case at bar. The cause of action in the Grossblatt case was the equivalent of a common law action of debt. [4] But the cause of action here involved is not equivalent to an action of debt because taxes are not debts. (People v. Hochwender, 20 Cal. 2d 181, 183 [124 P.2d 823]; Southern Service Co. v. County of Los Angeles, 15 Cal. 2d 1, 11 [97 P.2d 963]; Perry v. Washburn, 20 Cal. 318, 350; Courtney v. Byram, 54 Cal. App. 2d 769, 771 [129 P.2d 721]; Spurrier v. Neumiller, 37 Cal. App. 683, 690 [174 P. 338].) In People v. Central Pacific R. R. Co., 105 Cal. 576, 588-589 [38 P. 905], the court stated: \"The collection of taxes is not, however, the mere collection of a debt, but is a sovereign act of the state to be exercised as may be prescribed by the Legislature. Whether the tax is collected by an action in court, or by summary sale by the tax collector, is immaterial. The state through its Legislature can avail itself of the judicial power as the means by which it will collect the tax, and in such proceedings it may prescribe such procedure as may best avail for that purpose, irrespective of the mode of procedure provided for the determination of controversies between individuals, just as it may avail itself of the executive branch of the government by authorizing the sheriff to sell the property upon which the taxes are delinquent, without requiring him *262 to pursue the same course as is required in sales upon judgments between individuals. Although the tax is an obligation from the citizen to the state, it is not of the same character of obligation as exists between citizens, and for the purposes of its collection the state is not limited to the same mode or to the same procedure which it prescribes for individuals in the collection of obligations between themselves.\" (See also People v. Skinner, supra.) Since an action to collect taxes is not of the same nature as the common law action of debt, the Grossblatt case is not applicable to the case at bar.\n [5] Petitioner points out that Revenue and Taxation Code, section 7729, authorizes the attorney general to prosecute \"an action at law\" to collect the license tax, penalty and interest determined against an unlicensed distributor. He argues from this that the present suit is an action at law and he is therefore entitled to a jury trial. However, the mere fact that a proceeding is denominated an action at law does not per se give rise to the right of trial by jury; the court is not bound by the form of the action but rather by the nature of the rights involved--the test is whether the gist of the action is legal in a common law context. (People v. One 1941 Chevrolet Coupe, supra, p. 299; Ripling v. Superior Court, supra, p. 402; Grossblatt v. Wright, supra, pp. 483-484.) At common law in this country and in England taxes were not collected by regular judicial proceedings. (Kelly v. Pittsburgh, 104 U.S. 78, 80 [26 L. Ed. 658]; People v. Skinner, supra, p. 358.) Since a judicial proceeding to collect taxes was not even a recognized form of action at common law, it follows that the designation by the Legislature of such a proceeding as an \"action at law\" does not carry with it the right to a trial by jury. A jury trial is thus not a matter of right in an action to collect taxes. The Legislature was free to prescribe such procedure as would best avail for the purpose of collecting motor vehicle fuel license taxes through a judicial action (see People v. Skinner, supra, p. 358; People v. Central Pac. R. R. Co., supra, p. 589), and it has done so. But no provision for a jury trial has been made. Under such circumstances Code of Civil Procedure, section 592, governs. The pertinent portions of that section provide: \"In actions for the recovery of specific, real, or personal property, with or without damages, or for money claimed as due upon contract, or as damages for breach of contract, or for injuries, an issue of fact must be tried by a jury. ... In other cases, issues of fact must be tried by the court, subject to its power to order any *263 such issue to be tried by a jury. ...\" The cause of action here involved clearly falls into the second category, and the case must be tried by the court.\n The fact that petitioner's answer raises several collateral factual issues does not alter this result. The gist of the instant action is the collection of taxes based upon a final determination of a state taxing agency, and under Code of Civil Procedure, section 592, a judge is expressly empowered to try any factual issues in cases where a jury trial is not mandatory.\n Furthermore, petitioner cannot bolster his claim by asserting that this is partially an action to collect a penalty. [6] It is well settled in this state that a penalty which is created by statute for failure to pay a tax assessment becomes part of the tax. (Weston Inv. Co. v. State, 31 Cal. 2d 390, 393 [189 P.2d 262]; Carpenter v. Peoples Mut. Life. Ins. Co., 10 Cal. 2d 299, 303-304 [74 P.2d 508]; County of Los Angeles v. Ballerino, 99 Cal. 593, 596 [32 P. 581, 34 P. 329]; Camden Fire Ins. Assn. v. Johnson, 42 Cal. App. 2d 528, 531 [109 P.2d 447].)\n The alternative writ is discharged.\n Ashburn, J., and Kincaid, J. pro tem., [fn. *] concurred.\nNOTES\n[fn. *] *. Wickwire v. Reinecke, 275 U.S. 101, 105-106 [48 S. Ct. 43, 72 L. Ed. 184]; Den ex dem. Murray v. Hoboken Land & Imp. Co., 18 How. (U.S.) 272, 281-284 [15 L. Ed. 372]; State v. Overby, 265 Ala. 39 [89 So. 2d 525, 528]; Campbell v. State, 242 Ala. 215 [5 So. 2d 466, 472]; State v. Bley, 162 Ala. 239 [50 So. 263, 264]; Drew County Timber Co. v. Board of Equalization of Cleveland County, 124 Ark. 569 [187 S.W. 942]; Hicks v. Stewart Oil Co., 182 Ga. 654 [186 S.E. 802, 803-804]; Harper v. Commrs. of Town of Elberton, 23 Ga. 566, 568; Hoffman v. Department of Finance, 374 Ill. 494 [30 N.E.2d 34, 36]; Mix v. People, 86 Ill. 312, 313; Johnston v. State, 212 Ind. 375 [10 N.E.2d 40, 41]; Davis v. City of Clinton, 55 Iowa 549 [8 N.W. 423, 424]; Thomas Forman Co. v. Owsley County Board of Supervisors, 267 Ky. 224 [101 S.W.2d 939, 941]; City of Covington v. Shinkle, 175 Ky. 530 [194 S.W. 766, 767]; Stearns Coal & Lumber Co. v. Commonwealth, 167 Ky. 51 [179 S.W. 1080, 1082]; Harris v. Wood, 22 Ky. 641, 643; City of New Orleans v. Cassidy, 27 La.Ann. 704; Board of Commrs. of Mille Lacs County v. Morrison, 22 Minn. 178, 181; Spitcaufsky v. Hatten, 353 Mo. 94 [182 S.W.2d 86, 95, 160 A.L.R. 990]; State ex rel. Ferguson v. Moss, 69 Mo. 495, 503; Boody v. Watson, 64 N.H. 162 [9 A. 794, 798]; Cocheco Mfg. Co. v. Strafford, 51 N.H. 455, 458-459; City of New Rochelle v. Echo Bay Waterfront Corp., 268 A.D. 182 [49 N.Y.S.2d 673, 681], aff'd, 294 N.Y. 678 [60 N.E.2d 838], cert. denied, 326 U.S. 720 [66 S. Ct. 24, 90 L. Ed. 426]; Unemployment Compensation Comm'n v. J. M. Willis Barber & Beauty Shop, 219 N.C. 709 [15 S.E.2d 4, 7]; Cowles v. Brittain, 9 N.C. 204, 207; Chickasha Cotton Oil Co. v. Grady County, 177 Okla. 240 [58 P.2d 590, 595]; Crandall v. James, 6 R.I. 144, 148; Cruikshanks v. City Council, 1 McCord (S.C.), 360; In re Hackett, 53 Vt. 354, 359-360; Dexter Horton Bldg. Co. v. King County, 10 Wash. 2d 186 [116 P.2d 507, 511].\n[fn. *] *. Assigned by Chairman of Judicial Council.\n\n",
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| California Court of Appeal | California Court of Appeal | SA | California, CA |
1,825,022 | Per Curiam | 1993-03-30 | false | te-james-construction-co-v-hartley | Hartley | TE JAMES CONSTRUCTION CO. v. Hartley | null | null | null | null | null | null | null | null | null | null | null | null | 1 | Published | null | null | [
"616 So. 2d 548"
]
| [
{
"author_str": null,
"per_curiam": true,
"type": "010combined",
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"author_id": null,
"opinion_text": "\n616 So.2d 548 (1993)\nT.E. JAMES CONSTRUCTION CO. and Executive Risk Consultants, Inc., Appellants,\nv.\nLyle HARTLEY, Appellee.\nNo. 92-752.\nDistrict Court of Appeal of Florida, First District.\nMarch 30, 1993.\nRehearing Denied April 21, 1993.\n*549 Theodore M. Johns of Cole, Stone, Whitaker & Stoudemire, P.A., Jacksonville, for appellants.\nL. Jack Gibney, Jacksonville, for appellee.\nPER CURIAM.\nT.E. James Construction Company and its servicing agent appeal a workers' compensation order by which the claimant was awarded temporary total disability benefits, payable by T.E. James as the statutory employer pursuant to section 440.10(1), Florida Statutes. We conclude that there was insufficient evidence to support the temporary total award, but that T.E. James was properly established as the statutory employer.\nThe claimant was injured while working for T.E. James' subcontractor on a construction project. The claimant gave timely notice of injury to the subcontractor, and the record does not substantiate T.E. James' assertion of a conspiracy to deprive it of actual notice. Because the subcontractor did not have workers' compensation coverage in effect when the claimant was injured, T.E. James became the claimant's statutory employer under section 440.10(1), Florida Statutes. The claimant's obligation to provide notice of injury in accordance with section 440.185(1), Florida Statutes, was satisfied by the notice to the subcontractor, from which legal notice may then be imputed to T.E. James as the statutory employer. See Jack Axelrod Construction Co. v. Holcomb, IRC Order 2-3220 (August 22, 1977).\nThe claimant admitted that he conducted no job search after he ceased working for T.E. James' subcontractor. Although there was evidence that a torn meniscus in the claimant's knee is causing problems, the medical evidence does not establish an inability to work. Temporary total disability benefits may not be awarded in the absence of such evidence or an adequate job search. See e.g., University of Florida v. Stone, 553 So.2d 359 (Fla. 1st DCA 1989); Tampa General Hospital v. Lawson, 547 So.2d 260 (Fla. 1st DCA 1989); Seibert v. Pierce Poole and Kent Co., 478 So.2d 500 (Fla. 1st DCA 1985).\nThe temporary total disability award is reversed, and the appealed order is otherwise affirmed.\nJOANOS, C.J., and ZEHMER and WEBSTER, JJ., concur.\n",
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| District Court of Appeal of Florida | District Court of Appeal of Florida | SA | Florida, FL |
246,004 | Cecil, Miller, Simons | 1958-08-20 | false | j-h-schaeffer-jr-and-opal-r-schaeffer-v-commissioner-of-internal | null | J. H. Schaeffer, Jr., and Opal R. Schaeffer v. Commissioner of Internal Revenue | J. H. SCHAEFFER, Jr., and Opal R. Schaeffer, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent | Leo L. Cole, Jr., and James F. Schaef-fer, Memphis, Tenn., for petitioners., Joseph F. Goetten, Washington, D. C., Charles K. Rice, Lee A. Jackson, Robert N. Anderson, Carolyn R. Just, Department of Justice, Washington, D. C., on brief, for respondent. | null | null | null | null | null | null | null | null | null | null | 16 | Published | null | <parties data-order="0" data-type="parties" id="b909-4">
J. H. SCHAEFFER, Jr., and Opal R. Schaeffer, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
</parties><br><docketnumber data-order="1" data-type="docketnumber" id="b909-7">
No. 13421.
</docketnumber><br><court data-order="2" data-type="court" id="b909-8">
United States Court of Appeals Sixth Circuit.
</court><br><decisiondate data-order="3" data-type="decisiondate" id="b909-9">
Aug. 20, 1958.
</decisiondate><br><attorneys data-order="4" data-type="attorneys" id="b909-24">
Leo L. Cole, Jr., and James F. Schaef-fer, Memphis, Tenn., for petitioners.
</attorneys><br><attorneys data-order="5" data-type="attorneys" id="b909-25">
Joseph F. Goetten, Washington, D. C., Charles K. Rice, Lee A. Jackson, Robert N. Anderson, Carolyn R. Just, Department of Justice, Washington, D. C., on brief, for respondent.
</attorneys><br><p data-order="6" data-type="judges" id="b909-26">
Before SIMONS, Chief Judge, MILLER, Circuit Judge, and CECIL, District Judge.
</p> | [
"258 F.2d 861"
]
| [
{
"author_str": "Miller",
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"type": "010combined",
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"download_url": "http://bulk.resource.org/courts.gov/c/F2/258/258.F2d.861.13421_1.html",
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"opinion_text": "258 F.2d 861\n J. H. SCHAEFFER, Jr., and Opal R. Schaeffer, Petitioners,v.COMMISSIONER OF INTERNAL REVENUE, Respondent.\n No. 13421.\n United States Court of Appeals Sixth Circuit.\n August 20, 1958.\n \n Leo L. Cole, Jr., and James F. Schaeffer, Memphis, Tenn., for petitioners.\n Joseph F. Goetten, Washington, D. C., Charles K. Rice, Lee A. Jackson, Robert N. Anderson, Carolyn R. Just, Department of Justice, Washington, D. C., on brief, for respondent.\n Before SIMONS, Chief Judge, MILLER, Circuit Judge, and CECIL, District Judge.\n SHACKELFORD MILLER, Jr., Circuit Judge.\n \n \n 1\n The petitioners filed this action in the United States Tax Court seeking a redetermination of deficiency income tax assessments for the years 1952 and 1953, resulting from the failure on the part of the petitioners to include in gross income certain credits in their favor on the books of a finance company, which the Commissioner ruled constituted accrued taxable income. The Tax Court upheld the assessments, which ruling is now before us on petition for review.\n \n \n 2\n The facts, which were for the most part stipulated, were found by the Tax Court as follows. Petitioners, who are husband and wife, are residents of Germantown, Tennessee. They filed joint Federal income tax returns for the years 1952 and 1953. J. H. Schaeffer, Jr., the husband, hereinafter referred to as \"petitioner\" operated a retail used automobile business as an individual proprietor during 1952 and 1953 under the trade name of J & S Motors. The books and accounts of the business were kept on an accrual basis. In the normal course of the operation of the business petitioner sold notes executed by purchasers of automobiles under conditional sale contracts to banks and finance companies. Certain notes executed by such purchasers were sold in 1952 and 1953 by petitioner without recourse on petitioner to Memphis Bank & Trust Company and Guardian Discount Company, both of Memphis, Tennessee. These were closely related corporations in organization, operation and business practices, having the same principal place of business, and for the purposes of this opinion will be referred to collectively as the \"Finance Company.\"\n \n \n 3\n During 1952 and 1953 whenever notes, executed by purchasers of automobiles from J & S Motors and secured by conditional sales contracts on such automobiles, were purchased from J & S Motors by the Finance Company certain payments were made to J & S Motors and certain reserves were withheld and credited to two separate and distinct reserve accounts on the books of the Finance Company. These reserves were identified on such books as \"Loss Reserve\" accounts and \"Special Reserve\" or \"Rebate\" accounts. Whether the amounts credited by the Finance Company to the Loss Reserve accounts constituted taxable income for the years 1952 and 1953 is the question presented. Contrary to their original contention, petitioners now concede that the amounts credited to the Special Reserve or Rebate accounts constituted taxable income, and no issue is presented on the present review with respect thereto.\n \n \n 4\n Under the agreement between petitioner and the Finance Company, the amounts withheld and credited to the Loss Reserve accounts were usually 2 per cent of the notes. However, the percentage withheld varied in amount with the model of the car, and a larger percentage was withheld on older models. The creation and operation of the Loss Reserve accounts is shown by the following typical transaction. J & S Motors, in selling an automobile to a customer, would first obtain from the customer a credit statement which it submitted to the Finance Company. If the purchaser's credit was satisfactory J & S Motors made out a bill of sale indicating who held the lien on the automobile and informing the purchaser where payments were to be made. The purchaser would sign a conditional sale contract and make a down payment, consisting of a trade-in or cash or both. The following is an example of such a sale made July 26, 1952.\n \n \n 5\n Cash Price ......................... $833.00\n Net trade-in allowance ............. 228.00\n Cash on delivery ................... 60.00\n Total down payment ................. 288.00\n To finance ......................... 545.00\n Sales tax .......................... 6.90*\n Insurance costs .................... 100.07\n Finance charges .................... 195.53\n Total time balance ................. 840.60\n \n \n 6\n Upon completion of a sale J & S Motors would take the conditional sale contract to the Finance Company and receive from it a check for the balance of the purchase price. In the sale of July 26, 1952, referred to above, the Finance Company reflected the purchase of the conditional sale contract as follows.\n \n \n 7\n Notes Receivable ................... $840.60\n Cash, payment to J & S Motors ...... 545.00\n Cash, payment of insurance\n premium ........................... 100.07\n Loss reserve, J & S Motors ......... 24.23\n Special rebate, J & S Motors ....... 113.33\n Income ............................. 57.97\n Total .............................. $840.60\n \n \n 8\n The books of J & S Motors did not reflect the reserves as income. The only amount recorded as income from the sale of an automobile was the price of the car, as if cash had been paid. By agreement between petitioner and the Finance Company, the Loss Reserve accounts of petitioner were chargeable with any and all losses and costs incurred by the Finance Company in connection with or related to notes purchased from the petitioner. In addition, there was a verbal agreement between petitioner and the Finance Company that J & S Motors would further guarantee the company against loss by repurchasing repossessed cars from it at a fair retail price.\n \n \n 9\n No amounts were payable to petitioner out of such Loss Reserve accounts until the balance of such accounts exceeded 4 per cent of the total value of outstanding and unpaid balances on all notes purchased from petitioner. No payment was to be made out of such accounts as long as any debt owed by petitioner to the Finance Company was due and unpaid. During all of 1952 and 1953 amounts credited to the Loss Reserve accounts on the books of the Finance Company were held as security against losses on notes purchased from J & S Motors. The balances on Loss Reserve accounts did not at any time during 1952 or 1953 exceed 4 per cent of the outstanding value of or amount payable on notes purchased from J & S Motors by the Finance Company. During 1952 and 1953 the petitioner did not receive any of the Loss Reserves credited on the books of the Finance Company. However, if all of the purchasers of automobiles whose notes were held by the Finance Company had met their payments on time, J & S Motors was entitled to receive the entire balances in the accumulated Loss Reserve accounts.\n \n \n 10\n None of the amounts added to the Loss Reserve accounts were treated or reported as income by the petitioners. The deficiency assessments herein involved resulted from the Commissioner's ruling that petitioner's net income for the years in question should be increased by the amount of the net increases during 1952 and 1953 in the Loss Reserve accounts. Such net increases were $4,064.29 and $8,481.95, respectively, with the net balance increasing from $2,268.74 on December 31, 1951, to $14,814.98 on December 31, 1953. The Commissioner did not include in taxable income all of the amounts added to the Loss Reserve accounts in a particular year, but included only the net increases in such accounts, after allowing for actual losses arising out of defaults occurring in each of the taxable years.\n \n \n 11\n Since petitioner was on an accrual basis for income tax purposes, the amounts in question constituted taxable income if they accrued to the petitioner during the taxable year, even though he did not actually receive them during the year. \"Keeping accounts and making returns on the accrual basis, as distinguished from the cash basis, import that it is the right to receive and not the actual receipt that determines the inclusion of the amount in gross income. When the right to receive an amount becomes fixed, the right accrues.\" Spring City Foundry Co. v. Commissioner, 292 U.S. 182, 184-185, 54 S. Ct. 644, 645, 78 L. Ed. 1200; North American Oil Consolidated v. Burnet, 286 U.S. 417, 423, 52 S. Ct. 613, 76 L. Ed. 1197. The application of this well settled rule to cases involving factual situations similar to the present one has been the subject of considerable litigation. The petitioners' contention that the credits did not accrue as income in 1952 and 1953 finds support in Johnson v. Commissioner, 4 Cir., 233 F.2d 952; Texas Trailercoach, Inc., v. Commissioner, 5 Cir., 251 F.2d 395; and Glover v. Commissioner, 8 Cir., 253 F.2d 735. See also: Commissioner of Internal Revenue v. Cleveland Trinidad Paving Co., 6 Cir., 62 F.2d 85; Keasbey & Mattison Co. v. United States, 3 Cir., 141 F.2d 163. The Commissioner's contention is supported by numerous tax court decisions, including Shoemaker-Nash, Inc., v. Commissioner, 41 B.T.A. 417; Brodsky v. Commissioner, 27 T.C. 216; and Kilborn v. Commissioner, 29 T.C. 102 and by Baird v. Commissioner, 7 Cir., 256 F.2d 918. Three of the cases relied upon by petitioners, Johnson v. Commissioner, supra, Texas Trailer-coach, Inc., v. Commissioner, supra, and Glover v. Commissioner, supra, are reversals of Tax Court decisions which also upheld the Commissioner's contention. The opinions in the cases above referred to contain a review of the authorities and a thorough discussion of the question, which it is unnecessary to repeat in this opinion. Basically, the cases sustaining the petitioners take the position that the amounts credited to the Reserve Loss accounts were payable to the petitioner only upon various conditions precedent, which were contingencies which might bar indefinitely the dealer's receipt of the payments or the right to receive any payments at all from the account, thus constituting them contingent credits, rather than accrued income. The cases supporting the Commissioner's contention express the view that the amounts credited by the Finance Company to the Reserve Loss accounts were carried by the Finance Company and recognized by it as a liability in favor of the petitioner, that petitioner's legal right to them was undisputed, and that only the time of payment was deferred. Franklin County Distilling Co., Inc., v. Commissioner, 6 Cir., 125 F.2d 800. The fact that the exact amount to be paid is not determined until a later year is not material. Continental Tie & Lumber Co. v. United States, 286 U.S. 290, 295, 52 S. Ct. 529, 76 L. Ed. 1111.\n \n \n 12\n We agree with the Commissioner that there was nothing contingent about petitioner's legal right to the amounts so credited. The only contingency which existed was how much of these amounts would not be paid to the petitioner but would be applied by the Finance Company to the payment of petitioner's legal obligations. The contingency was in the amount of the offset, not in the amount of the accrued income. Brown v. Helvering, 291 U.S. 193, 200-201, 54 S. Ct. 356, 78 L. Ed. 725. For income tax purposes, the amount of accrued income was fixed and did not vary. Although the amount of the credit on the books of the Finance Company might be later reduced, such reduction would be the result of the Finance Company using a portion of the credit to discharge petitioner's legal obligations, which automatically offset any reduction in the credit. The payment of a legal obligation of a taxpayer is income to the taxpayer even though such income is not actually received by him. Old Colony Trust Co. v. Commissioner, 279 U.S. 716, 729, 49 S. Ct. 499, 73 L. Ed. 918; Tressler v. Commissioner, 9 Cir., 228 F.2d 356, 359, Note 6; Northern Trust Co. of Chicago v. United States, 7 Cir., 193 F.2d 127. The immediate payment of the amounts so credited was prevented only because petitioner pledged these amounts to secure other possible obligations of his own that might later arise.\n \n \n 13\n The liabilities, the payment of which was secured by the Loss Reserve accounts, were contingent liabilities of the petitioner, such as might result from probable default on the part of the obligors in making the required payments. Bernstein v. United States, 5 Cir., 234 F.2d 475, 481. The tax on income received in one year can not be withheld because losses may thereafter occur in a later year or because the ultimate result of a particular transaction may be a loss instead of a profit. Heiner v. Mellon, 304 U.S. 271, 276, 58 S. Ct. 926, 82 L. Ed. 1337; Burnet v. Sanford & Brooks Co., 282 U.S. 359, 364, 51 S. Ct. 150, 75 L. Ed. 383. Such obligations can be taken as income tax deductions only in the year in which they become actual liabilities. Brown v. Helvering, supra, 291 U.S. 193, 200-201, 54 S. Ct. 356, 78 L. Ed. 725; E. H. Sheldon & Co. v. Commissioner, 6 Cir., 214 F.2d 655, 656; Franklin County Distilling Co., Inc., v. Commissioner, supra, 6 Cir., 125 F.2d 800, 804. When a taxpayer is on the accrual basis losses are handled separately from income even though they relate to an item of gross income which has accrued in the same year. Spring City Foundry Co. v. Commissioner, supra, 292 U.S. 182, 185, 54 S. Ct. 644, 78 L. Ed. 1200. Under the ruling in Brown v. Helvering, supra, 291 U.S. 193, 54 S. Ct. 356, 78 L. Ed. 725, and Heiner v. Mellon, supra, 304 U.S. 271, 276, 58 S. Ct. 926, 82 L. Ed. 1337, the Commissioner's position must be sustained.\n \n \n 14\n The foregoing analysis of the question considers the transaction only as one between the petitioner and the Finance Company. Before that transaction was entered into, the petitioner concluded a prior transaction with the purchaser of the automobile which, we believe, is the controlling factor in the case. Petitioner in selling a car to a purchaser and in taking the purchaser's note and conditional sale contract acquired an asset in the nature of an account receivable, with respect to which there was no contingency whatsoever. As between petitioner and the purchaser of the automobile, the entire amount of the contract obligation accrued to the petitioner. If such account receivable became uncollectible in whole or in part, the question was one of taking a deduction under the applicable statute. Spring City Foundry Co. v. Commissioner, supra, 292 U.S. 182, 185, 54 S. Ct. 644, 78 L. Ed. 1200. There was no obligation on the part of the petitioner to sell this account receivable to the Finance Company. Actually, in a number of instances the petitioner did not sell such an account receivable and the amount called for by his contract was treated by him as taxable income. We see no reason why the completed transaction with the purchaser should not be treated in the same way in other instances where the petitioner without any legal obligation on his part to do so sells the account receivable to a finance company. The income has accrued to the petitioner before the transfer is made to the Finance Company, and such subsequent transfer does not change the legal effect of the prior completed transaction. Baird v. Commissioner, supra, 7 Cir., 256 F.2d 918. See: Chamberlin v. Commissioner, 6 Cir., 207 F.2d 462, 469, certiorari denied, 347 U.S. 918, 74 S. Ct. 516, 98 L. Ed. 1073.\n \n \n 15\n The decision of the Tax Court is affirmed.\n \n \n \n Notes:\n \n \n *\n This item was apparently not included in computing the total\n \n \n ",
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| Sixth Circuit | Court of Appeals for the Sixth Circuit | F | USA, Federal |
122,612 | null | 2002-10-07 | false | johnson-v-mississippi | null | Johnson v. Mississippi | null | null | null | null | null | null | null | null | null | null | null | null | 0 | Published | null | null | [
"537 U.S. 830"
]
| [
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": "http://bulk.resource.org/courts.gov/c/US/537/537.US.830.01-9963.html",
"author_id": null,
"opinion_text": "537 U.S. 830\n JOHNSONv.MISSISSIPPI.\n No. 01-9963.\n Supreme Court of United States.\n October 7, 2002.\n \n 1\n CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.\n \n \n 2\n C. A. 5th Cir. Certiorari denied.\n \n ",
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| Supreme Court | Supreme Court of the United States | F | USA, Federal |
1,074,947 | null | 1999-06-08 | false | harman-mining-corporation-v-thacker | Thacker | Harman Mining Corporation v. Thacker | null | null | null | null | null | null | null | null | null | null | null | null | 0 | Unpublished | null | null | null | [
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": 4,
"download_url": "http://www.courts.state.va.us/opinions/opncavwp/0267994.pdf",
"author_id": null,
"opinion_text": " COURT OF APPEALS OF VIRGINIA\n\n\nPresent: Judges Benton, Coleman and Willis\n\n\nHARMAN MINING CORPORATION AND\n SECURITY INSURANCE COMPANY\n OF HARTFORD\n MEMORANDUM OPINION*\nv. Record No. 0267-99-4 PER CURIAM\n JUNE 8, 1999\nJOHN THACKER\n\n\n FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION\n\n (Thornton L. Newlon; Blandford & Newlon, on\n briefs), for appellants.\n\n (Daniel Sachs, on brief), for appellee.\n\n\n Harman Mining Corporation and its insurer (hereinafter\n\nreferred to as \"employer\") contend that the Workers' Compensation\n\nCommission (1) incorrectly applied the test set forth by this\n\nCourt in Clinchfield Coal Co. v. Parrot, 22 Va. App. 443, 470\n\nS.E.2d 597 (1996), with respect to whether an injured employee is\n\nable to return to pre-injury employment; and (2) erred in finding\n\nthat employer failed to prove that John Thacker was able to return\n\nto his pre-injury work as of February 9, 1998. Upon reviewing the\n\nrecord and the briefs of the parties, we conclude that this appeal\n\nis without merit. Accordingly, we summarily affirm the\n\ncommission's decision. See Rule 5A:27.\n\n\n\n *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,\nthis opinion is not designated for publication.\n\f On appeal, we view the evidence in the light most favorable\n\nto the prevailing party below. See R.G. Moore Bldg. Corp. v.\n\nMullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).\n\n\"General principles of workman's compensation law provide that\n\n'[i]n an application for review of any award on the ground of\n\nchange in condition, the burden is on the party alleging such\n\nchange to prove his allegations by a preponderance of the\n\nevidence.'\" Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459,\n\n464, 359 S.E.2d 98, 101 (1987) (quoting Pilot Freight Carriers,\n\nInc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d 570, 572\n\n(1986)). Unless we can say as a matter of law that employer's\n\nevidence sustained its burden of proof, the commission’s findings\n\nare binding and conclusive upon us. See Tomko v. Michael’s\n\nPlastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).\n\n In denying employer's change-in-condition application and\n\nin finding that employer failed to prove that Thacker was able\n\nto fully perform his pre-injury work, the commission found as\n\nfollows:\n\n [T]he \"clean\" weight of the miner cable is\n 4.8 pounds per foot, resulting in an\n approximate total weight of between 48 and 72\n pounds. Although a miner helper was assigned\n to assist [Thacker] in his pre-injury work,\n including lifting the miner cable, it is\n uncontroverted that sometimes a miner helper\n was absent or not available. Whether such\n occurrence was frequent or infrequent is of\n no consequence, because [Thacker] was\n restricted from even occasionally lifting in\n excess of 70 pounds.\n\n\n - 2 -\n\f . . . [C]laimant's pre-injury job\n required occasional lifting of the miner\n cable without assistance. In the July 17,\n 1998, Opinion, the deputy commissioner stated\n that lifting 15 feet of miner cable was\n within [Thacker's] job description, based on\n a per-foot weight of 4.5 pounds. As noted\n above, however, the evidence establishes that\n the cable weighed 4.8 pounds per foot.\n Moreover, this weight does not take into\n account any debris on the cable, the weight\n of the water line, and the effect of the\n equipment carried by [Thacker] while\n performing his duties. As for Dr. [Clinton]\n Sutherland's release of [Thacker], it is\n based on the job description provided by the\n employer, which does not account for\n occasional lifting of the miner cable without\n assistance.\n\n(Footnote omitted.)\n\n The commission's findings that Dr. Sutherland's release was\n\nbased upon an incomplete and/or inaccurate job description and\n\nthat the manner in which claimant actually performed his job\n\nfell outside of Dr. Sutherland's restrictions are supported by\n\nThacker's testimony. As fact finder, the commission was\n\nentitled to accept Thacker's testimony regarding his job duties\n\nand to reject any contrary testimony.\n\n Thus, we cannot say as a matter of law that employer's\n\nevidence sustained its burden of proving by a preponderance of\n\nthe evidence that Thacker was capable of performing all of the\n\nduties of his pre-injury employment as of February 9, 1998.\n\n Contrary to employer's argument, the commission's holding\n\nin this case was not inconsistent with our holding in Parrott.\n\nIn Parrott, we reaffirmed the principle that \"'[i]n determining\n\n - 3 -\n\fwhether an injured employee can return to his or her pre-injury\n\nemployment duties the Commission does not look at how the duties\n\ncould ideally be performed, but rather, how the duties were\n\nactually performed.'\" 22 Va. App. at 447, 470 S.E.2d at 598-99\n\n(citation omitted). Here, Thacker's testimony, which the\n\ncommission was entitled to accept, established \"how the duties\n\nwere actually performed,\" or in other words, the \"normal and\n\ncustomary manner in which the pre-injury work was performed.\"\n\nId. at 447, 470 S.E.2d at 599.\n\n For the reasons stated, we affirm the commission's\n\ndecision.\n\n Affirmed.\n\n\n\n\n - 4 -\n\f",
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| Court of Appeals of Virginia | Court of Appeals of Virginia | SA | Virginia, VA |
90,562 | Woods, After Stating the Case | 1882-04-24 | false | warren-v-stoddart | Warren | Warren v. Stoddart | Warren v. Stoddart | Mr. Van H Higgins and Mr.- Isado JSf. Arnold for the plaintiff in error*, There was no opposing counsel. | null | null | null | <p>1. Where a party, entitled to the benefit of a contract, can, at a trifling expense and with reasonable exertions, save himself from a loss arising from’ a .broach of it, it is his duty to do so. and he can charge delinquents only with such damages as with reasonable endeavor he could not prevent.</p> <p>2. The contract between the parties (infra, p. 225) construed. Held, that W. having put an end "to it by canvassing on behalf of another party for a rival edition of the same work, and cancelling the orders he had obtained for S.’s reprint, S. was not bound thereafter to furnish him with copies of the.work on credit.</p> | Error to tbe Circuit Court of the United States for the Northern District of Illinois. Joseph M. Stoddart was a book publisher, carrying on business in the city of Philadelphia, under the name of J. M. Stoddart & Co. In 1878 he undertook to reprint and sell in the United States a new edition, consisting of twénty-one volumes, of the Encyclopaedia Britannica, which A. & C. Black, of Edinburgh, Scotland, were then bringing out. His plan was to sell the work by subscription only; the subscriptions were to be obtained by. .agents and canvassers, to whom ’certain territory was to be allotted.' It was expected that the work would be printed and published at the rate of about three volumes per year. Moses Warren was an. agent in the city of Chicago for the sale of subscription books; .that is, books sold only by subscription. On Feb. 24, 1877, he and Stoddart entered, into a contract in writing, which is as follows: — “ Philadelphia, Feb. 24,1877. “ Agreement entered into this day between J. M. Stoddart & Co., of Philadelphia, Pa., and Moses Warren, of Chicago, 111. “ The said J. M. Stoddart & Co. agree to give the said Moses Warren a general agency for the sale of the American reprint of the Encyclopaadia Britannica in the following territory.” Here follows a description of the territory, consisting of several States and parts of States, and a list of the prices at which Stoddart & Co. agreed to furnish Warren with the boobs in various styles of binding. The contract then, proceeds: — “ Said J. M. Stoddart & Co. also agree to give to said Moses Warren the exclusive right to sell the Encyclopaedia Britannica within the above-named territory, during such time as said Warren shall faithfully perform his part of the agreement as hereinafter stated. “1st, Said Warren' agrees to use his best endeavors to promote the sale of the Britannica in the above-assigned field. “ 2d, To send to J. M. Stoddart & Co, a weekly report of the number of orders taken the week previous. “ 3d, To fill no orders outside of his assigned field. “4th, To leave no volumes- with booksellers to sell or display in their stores. “ 5th, To furnish no volumes at less than the regular retail price. “ 6th, To remit on the 7th day of the month one-half the amount of monthly statement for previous month, and to remit on the 26th day of the month the remaining one-half of said monthly statement. “ Witness our hi nds and seals on the day and date above mentioned. “J. M- Stoddart'& Co. [seal.] “Moses Warren.” [seal.] Warren at once entered upon the performance of this contract, and by April 20, 1878, had obtained and reported to Stoddart subscriptions for 1,733 sets of the work, and had delivered to subscribers a portion of tbe volumes of tbe work which had been issued up to that time; on an average less than four volumes to each subscriber. In the latter part of the year 1877 or early in 1878 the' Scotch publishers of the Encyclopaedia and the house of Scrib.ner & Armstrong, of New York, formed a plan to issue in this country an edition, of the Encyclopaedia, to compete with the reprint of Stoddart, by striking off sheets from the original stereotype plates and engravings of the Scotch edition and. sending them to this country to be bound and sold by subscription, on substantially the same plan as that which had been adopted by Stoddart to put his reprint into circulation. Sometime in May, 1878, Scribner & Armstrong commenced negotiations with Warren, which - resulted in a contract between them, dated.May 14, 1878, by which they constituted him their agent, with the exclusive right to sell, until its publication was completed, their edition of the Encyclopaedia within the same territory substantially as that mentioned in the contract between Stoddart and Warren, and agreed to furnish him with copies of the ■ Encyclopaedia, at prices therein named. He stipulated on his part that from and after the date of the contract he would not canvass for any other ■ Encyclopaedia, or any other edition of any Encyclopaedia, but that he “ should have the privilege of completing orders already taken for the reprint edition of Stoddart. to all subscribers therefor.” After the making of this contract Warren'refused to canvass further for Stoddart’s reprint edition; Whereupon Stoddart refused to furnish him, except for cash on delivery, the books with which to fill the orders which he had obtained- for Stoddart’s reprint edition. ' Upon this'point the evidence was as follows:- On June 5, 1878, Warren sent an order to Stoddart requesting him to forward a certain number .of books to be furnished subscribers, to which Stoddart replied by letter, dated June 6, 1878, that “ as to all' future orders, for the present they will be filled when cash accompanies the orders.” On June 10, 1878, Warren .wrote to Stoddart as follows: “ I am desirous of delivering reprint fast as possible ón my orders heretofore taken for same. If my-orders for stock are' filled they, shall be paid for according to contract. Do you intend to fill my orders on that basis ? ” To this letter Stoddart replied by telegraph as follows: “ Will fill order when cash is received in accordance with our letter of June 6.” There is no evidence that Stoddart ever refused to fill a cash order; nor was it pretended that Warren, after that date, ever sent an order to Stoddart with the cash to pay for the books ordered. After the refusal of Stoddart to supply Warren with the books except for cash,' the latter induced 1,253 of the subscribers to Stoddart’s reprint edition to exchange the subscription to the reprint for a subscription to the Scotch edition, and he claimed that he expended in'obt'áining their exchange an average of four dollars for each subscription, making a total of $5,012. He also claimed that the .Stoddart reprint volumes taken back from said subscribers were worth $12,206 less than the amount paid by him to Stoddart for them, and less than what he could sell them for in the market. Warren also claimed that he lost his profits on four hundred and eighty orders which were not exchanged, amounting to the sum of $20,073. This suit was brought by Stoddart to recover of Warren the sum of $2,976.53 for books furnished him to supply his subscribers. It was not disputed by Warren that the amount sued for was due and owing from him to Stoddart. But Warren, by way of set-off, averred the making of the contract with Stoddart above set forth, and claimed that he had been damaged by the refusal of Stoddart to perfc un the contract, in the sum of $30,000. ' Upon the trial of the case, the judge instructed the jury that the defendant’s claim for damages could not be allowed as against the plaintiff’s claim in the suit, and that the plaintiff was entitled to a verdict for the full amount sued for by him and admitted to be due; ¿namely, $2,976.53. The jury returned a verdict accordingly, on which judgment was entered.. This writ of error is prosecuted by Warren to reverse that judgment. | null | null | null | null | null | 34 | Published | null | <parties id="b252-7">
Warren
<em>
v.
</em>
Stoddart.
</parties><br><headnotes id="b252-8">
1. Where a party, entitled to the benefit of a contract, can, at a trifling expense and with reasonable exertions, save himself from a loss arising from’ a .broach of it, it is his duty to do so. and he can charge delinquents only with such damages as with reasonable endeavor he could not prevent.
</headnotes><br><headnotes id="b252-10">
2. The contract between the parties
<em>
(infra,
</em>
p. 225) construed.
<em>
Held,
</em>
that W. having put an end "to it by canvassing on behalf of another party for a rival edition of the same work, and cancelling the orders he had obtained for S.’s reprint, S. was not bound thereafter to furnish him with copies of the.work on credit.
</headnotes><br><summary id="b252-12">
Error to tbe Circuit Court of the United States for the Northern District of Illinois.
</summary><br><summary id="b252-13">
Joseph M. Stoddart was a book publisher, carrying on business in the city of Philadelphia, under the name of J. M. Stoddart & Co. In 1878 he undertook to reprint and sell in the United States a new edition, consisting of twénty-one volumes, of the Encyclopaedia Britannica, which A. & C. Black, of Edinburgh, Scotland, were then bringing out.
</summary><br><summary id="b252-14">
His plan was to sell the work by subscription only; the subscriptions were to be obtained by. .agents and canvassers, to whom ’certain territory was to be allotted.' It was expected
<span citation-index="1" class="star-pagination" label="225">
*225
</span>
that the work would be printed and published at the rate of about three volumes per year.
</summary><br><summary id="b253-5">
Moses Warren was an. agent in the city of Chicago for the sale of subscription books; .that is, books sold only by subscription. On Feb. 24, 1877, he and Stoddart entered, into a contract in writing, which is as follows: —
</summary><br><summary id="b253-6">
“ Philadelphia, Feb. 24,1877.
</summary><br><summary id="b253-7">
“ Agreement entered into this day between J. M. Stoddart
<em>
&
</em>
Co., of Philadelphia, Pa., and Moses Warren, of Chicago, 111.
</summary><br><summary id="b253-8">
“ The said J. M. Stoddart & Co. agree to give the said Moses Warren a general agency for the sale of the American reprint of the Encyclopaadia Britannica in the following territory.”
</summary><br><summary id="b253-9">
Here follows a description of the territory, consisting of several States and parts of States, and a list of the prices at which Stoddart & Co. agreed to furnish Warren with the boobs in various styles of binding. The contract then, proceeds: —
</summary><br><summary id="b253-10">
“ Said J. M. Stoddart & Co. also agree to give to said Moses Warren the exclusive right to sell the Encyclopaedia Britannica within the above-named territory, during such time as said Warren shall faithfully perform his part of the agreement as hereinafter stated.
</summary><br><summary id="b253-11">
“1st, Said Warren' agrees to use his best endeavors to promote the sale of the Britannica in the above-assigned field.
</summary><br><summary id="b253-12">
“ 2d, To send to J. M. Stoddart
<em>
&
</em>
Co, a weekly report of the number of orders taken the week previous.
</summary><br><summary id="b253-13">
“ 3d, To fill no orders outside of his assigned field.
</summary><br><summary id="b253-14">
“4th, To leave no volumes- with booksellers to sell or display in their stores.
</summary><br><summary id="b253-15">
“ 5th, To furnish no volumes at less than the regular retail price.
</summary><br><summary id="b253-16">
“ 6th, To remit on the 7th day of the month one-half the amount of monthly statement for previous month, and to remit on the 26th day of the month the remaining one-half of said monthly statement.
</summary><br><summary id="b253-17">
“ Witness our hi nds and seals on the day and date above mentioned.
</summary><br><summary id="b253-18">
“J. M-
<em>
Stoddart'&
</em>
Co. [seal.]
</summary><summary id="Aty2">
“Moses Warren.” [seal.]
</summary><br><summary id="b253-19">
Warren at once entered upon the performance of this contract, and by April 20, 1878, had obtained and reported to Stoddart subscriptions for 1,733 sets of the work, and had de
<span citation-index="1" class="star-pagination" label="226">
*226
</span>
livered to subscribers a portion of tbe volumes of tbe work which had been issued up to that time; on an average less than four volumes to each subscriber.
</summary><br><summary id="b254-5">
In the latter part of the year 1877 or early in 1878 the' Scotch publishers of the Encyclopaedia and the house of Scrib.ner & Armstrong, of New York, formed a plan to issue in this country an edition, of the Encyclopaedia, to compete with the reprint of Stoddart, by striking off sheets from the original stereotype plates and engravings of the Scotch edition and. sending them to this country to be bound and sold by subscription, on substantially the same plan as that which had been adopted by Stoddart to put his reprint into circulation.
</summary><br><summary id="b254-6">
Sometime in May, 1878, Scribner
<em>
&
</em>
Armstrong commenced negotiations with Warren, which - resulted in a contract between them, dated.May 14, 1878, by which they constituted him their agent, with the exclusive right to sell, until its publication was completed, their edition of the Encyclopaedia within the same territory substantially as that mentioned in the contract between Stoddart and Warren, and agreed to furnish him with copies of the ■ Encyclopaedia, at prices therein named. He stipulated on his part that from and after the date of the contract he would not canvass for any other ■ Encyclopaedia, or any other edition of any Encyclopaedia, but that he “ should have the privilege of completing orders already taken for the reprint edition of Stoddart. to all subscribers therefor.”
</summary><br><summary id="b254-7">
After the making of this contract Warren'refused to canvass further for Stoddart’s reprint edition; Whereupon Stoddart refused to furnish him, except for cash on delivery, the books with which to fill the orders which he had obtained- for Stoddart’s reprint edition.
</summary><br><summary id="b254-8">
' Upon this'point the evidence was as follows:- On June 5, 1878, Warren sent an order to Stoddart requesting him to forward a certain number .of books to be furnished subscribers, to which Stoddart replied by letter, dated June 6, 1878, that “ as to all' future orders, for the present they will be filled when cash accompanies the orders.”
</summary><br><summary id="b254-9">
On June 10, 1878, Warren .wrote to Stoddart as follows: “ I am desirous of delivering reprint fast as possible ón my orders heretofore taken for same. If my-orders for stock are' filled
<span citation-index="1" class="star-pagination" label="227">
*227
</span>
they, shall be paid for according to contract. Do you intend to fill my orders on that basis ? ”
</summary><br><summary id="b255-5">
To this letter Stoddart replied by telegraph as follows: “ Will fill order when cash is received in accordance with our letter of June 6.” There is no evidence that Stoddart ever refused to fill a cash order; nor was it pretended that Warren, after that date, ever sent an order to Stoddart with the cash to pay for the books ordered.
</summary><br><summary id="b255-6">
After the refusal of Stoddart to supply Warren with the books except for cash,' the latter induced 1,253 of the subscribers to Stoddart’s reprint edition to exchange the subscription to the reprint for a subscription to the Scotch edition, and he claimed that he expended in'obt'áining their exchange an average of four dollars for each subscription, making a total of $5,012. He also claimed that the .Stoddart reprint volumes taken back from said subscribers were worth $12,206 less than the amount paid by him to Stoddart for them, and less than what he could sell them for in the market. Warren also claimed that he lost his profits on four hundred and eighty orders which were not exchanged, amounting to the sum of $20,073.
</summary><br><summary id="b255-7">
This suit was brought by Stoddart to recover of Warren the sum of $2,976.53 for books furnished him to supply his subscribers. It was not disputed by Warren that the amount sued for was due and owing from him to Stoddart. But Warren, by way of set-off, averred the making of the contract with Stoddart above set forth, and claimed that he had been damaged by the refusal of Stoddart to perfc un the contract, in the sum of $30,000.
</summary><br><summary id="b255-8">
' Upon the trial of the case, the judge instructed the jury that the defendant’s claim for damages could not be allowed as against the plaintiff’s claim in the suit, and that the plaintiff was entitled to a verdict for the full amount sued for by him and admitted to be due; ¿namely, $2,976.53. The jury returned a verdict accordingly, on which judgment was entered.. This writ of error is prosecuted by Warren to reverse that judgment.
</summary><br><attorneys id="b255-9">
<em>
Mr. Van H Higgins
</em>
and
<em>
Mr.- Isado JSf. Arnold
</em>
for the plaintiff in error*
</attorneys><br><attorneys id="b255-10">
There was no opposing counsel.
</attorneys> | [
"105 U.S. 224",
"26 L. Ed. 1117",
"1881 U.S. LEXIS 2108"
]
| [
{
"author_str": "Woods",
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": null,
"author_id": 3552,
"opinion_text": "\n105 U.S. 224 (____)\nWARREN\nv.\nSTODDART.\nSupreme Court of United States.\n\n*227 Mr. Van H. Higgins and Mr. Isaac N. Arnold for the plaintiff in error.\nThere was no opposing counsel.\n*228 MR. JUSTICE WOODS, after stating the case, delivered the opinion of the court.\nThe only question in the case is whether or not the instruction of the court to the jury, to the effect that, on the facts, the plaintiff in error was entitled to no damages, is correct. This will depend upon the construction which is to be put on the contract between Stoddart and Warren, of Feb. 24, 1877.\nThe contract is indefinite as to the time during which it was to continue in force. It is probable that the parties supposed the contract would continue until the twenty-one volumes were published, or at least until the territory named in the contract had been thoroughly canvassed. But no time was mentioned in the contract, nor did it make any provision with respect to the unfilled orders in case of its termination before the publication was completed, and we are left to construe it and settle the rights of the parties under it as they have made it.\nThe complaint of Warren is not that Stoddart refused to furnish him with the books necessary to fill the orders he had taken, nor that he refused to furnish the books at the price fixed by their contract. His sole complaint is that Stoddart refused to furnish the books on a credit of about thirty days, which Warren insists the contract provided for, and demanded the cash.\nHe claims that after he had stopped canvassing for the reprint of Stoddart, and had made a contract with and entered into the service of a rival publisher of the same work, and had begun in the interest of the rival publisher a canvass of the same territory which had been allotted to him exclusively by his contract with Stoddart, he had the right, upon the refusal of the latter to furnish the books on thirty days' credit, to obtain a cancellation of the orders he had taken for Stoddart's reprint, and substitute therefor orders for the rival edition, and charge the expense of the substitution to Stoddart.\nWe think it entirely clear that he had no such right. There was no express provision in the contract between Warren and Stoddart which required the latter to furnish the books on credit, and we think that the provision of the contract that *229 Warren should remit on the seventh day of the month one-half the amount of monthly statement for previous month, and on the twenty-sixth day the remaining half, was not continued in force after Warren had terminated the contract and abandoned the service of Stoddart under it.\nAlthough the contract fixed no time during which it was to continue in force, yet we think when either party terminated it, the other was no longer bound by its provisions. It gave Warren the exclusive right to sell the books within certain territory, and by it Stoddart agreed to furnish them to him at stipulated prices and on stipulated terms. On his part Warren agreed to use his best endeavors to promote the sale of the work in the field exclusively assigned to him. These clauses of the contract were reciprocal, and the performance of one was the consideration for the performance of the other. When Warren ceased to canvass for Stoddart's books, he had no right to demand the books at the prices or the terms mentioned in the contract.\nBut even conceding that the provision referred to remained in force after Warren had declined to go on under the contract, it does not follow that, upon the refusal of Stoddart to give Warren a credit of thirty days upon the books, the latter could obtain a cancellation of the orders he had taken for Stoddart's reprint and substitute orders for the Scotch edition, and charge the expense of so doing to Stoddart. The claim that upon a simple refusal of Stoddart to allow him a thirty days' credit upon the books as he ordered them, he could go on and substitute other orders for another book and charge Stoddart with the expense of substitution, amounting to $30,000, is, to say the least, a remarkable one. The damage sustained by Warren because he did not get the thirty days' credit which he thinks he was entitled to is not to be measured in that way.\nThe rule is, that where a party is entitled to the benefit of a contract, and can save himself from a loss arising from a breach of it at a trifling expense or with reasonable exertions, it is his duty to do it, and he can charge the delinquent with such damages only as with reasonable endeavors and expense he could not prevent. Wicker v. Hoppock, 6 Wall. 94; Miller v. Mariners' Church, 7 Me. 51; Russell v. Butterfield, 21 Wend. *230 (N.Y.) 300; United States v. Burnham, 1 Mason, 57; Taylor v. Read, 4 Paige (N.Y.), 561.\nThe course pursued by Warren was not necessary to his own protection. He might either have paid Stoddart cash for the books required to fill his orders, or have allowed Stoddart to fill the orders and divide the profits of the business between them, on equitable terms. The law required him to take that course by which he could secure himself with the least damage to the defendant in error. Instead of this he unnecessarily destroys a valuable interest of Stoddart in the business in which they were jointly engaged, and then seeks to charge him with the great expense and damage which he brought on himself in so doing.\nIf Stoddart violated his contract with Warren in refusing to fill his orders except for cash, the measure of Warren's damages would be the interest for thirty days on the amount of cash paid on his orders. As no proof was given to show that Warren had ever paid cash for any books ordered by him, he would only be entitled, in any view of the case, to nominal damages.\nBut, as we have already said, Stoddart was not bound by the contract to furnish the books on credit after Warren had gone over to a rival publisher and refused to go on under his contract. We think, therefore, that the court below was right in saying to the jury that Warren was entitled to no damages at all.\nJudgment affirmed.\n",
"ocr": false,
"opinion_id": 90562
}
]
| Supreme Court | Supreme Court of the United States | F | USA, Federal |
489,598 | Baldock, McWILLIAMS, Seymour | 1987-06-05 | false | frank-lee-v-town-of-estes-park-colorado-a-municipal-corporation-gregg | null | Frank Lee v. Town of Estes Park, Colorado, a Municipal Corporation Gregg Filsinger, Robert W. Ault Walter F. Kappely, Odd Lyngholm | Frank LEE, Plaintiff-Appellant, v. TOWN OF ESTES PARK, COLORADO, a Municipal Corporation; Gregg Filsinger, Robert W. Ault; Walter F. Kappely, Odd Lyngholm, Defendants-Appellees | Joseph P. Genchi, P.C., Estes Park, Colo., for plaintiff-appellant., Gretchen C. Rau (Frank R. Kennedy of Cooper & Kelley, with her on the brief), Denver, Colo., for the Town of Estes Park, Colo., Gregg Filsinger, Robert W. Ault, and Walter F. Kappely, defendants-appellees., Laurence A. Stanton of Chilson and Stanton, Loveland, Colo., for Odd Lyngholm, defendant-appellee. | null | null | null | null | null | null | null | null | null | null | 12 | Published | null | <parties id="b1186-6">
Frank LEE, Plaintiff-Appellant, v. TOWN OF ESTES PARK, COLORADO, a Municipal Corporation; Gregg Filsinger, Robert W. Ault; Walter F. Kappely, Odd Lyngholm, Defendants-Appellees.
</parties><docketnumber id="AU75">
No. 84-1833.
</docketnumber><court id="A_D">
United States Court of Appeals, Tenth Circuit.
</court><decisiondate id="AoiF">
June 5, 1987.
</decisiondate><br><attorneys id="b1187-9">
<span citation-index="1" class="star-pagination" label="1113">
*1113
</span>
Joseph P. Genchi, P.C., Estes Park, Colo., for plaintiff-appellant.
</attorneys><br><attorneys id="b1187-10">
Gretchen C. Rau (Frank R. Kennedy of Cooper & Kelley, with her on the brief), Denver, Colo., for the Town of Estes Park, Colo., Gregg Filsinger, Robert W. Ault, and Walter F. Kappely, defendants-appellees.
</attorneys><br><attorneys id="b1187-11">
Laurence A. Stanton of Chilson and Stanton, Loveland, Colo., for Odd Lyngholm, defendant-appellee.
</attorneys><br><judges id="b1187-13">
Before SEYMOUR, BALDOCK, and McWILLIAMS, Circuit Judges.
</judges> | [
"820 F.2d 1112"
]
| [
{
"author_str": "McWILLIAMS",
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": "http://bulk.resource.org/courts.gov/c/F2/820/820.F2d.1112.84-1833.html",
"author_id": null,
"opinion_text": "820 F.2d 1112\n Frank LEE, Plaintiff-Appellant,v.TOWN OF ESTES PARK, COLORADO, a Municipal Corporation;Gregg Filsinger, Robert W. Ault; Walter F.Kappely, Odd Lyngholm, Defendants-Appellees.\n No. 84-1833.\n United States Court of Appeals,Tenth Circuit.\n June 5, 1987.\n \n Joseph P. Genchi, P.C., Estes Park, Colo., for plaintiff-appellant.\n Gretchen C. Rau (Frank R. Kennedy of Cooper & Kelley, with her on the brief), Denver, Colo., for the Town of Estes Park, Colo., Gregg Filsinger, Robert W. Ault, and Walter F. Kappely, defendants-appellees.\n Laurence A. Stanton of Chilson and Stanton, Loveland, Colo., for Odd Lyngholm, defendant-appellee.\n Before SEYMOUR, BALDOCK, and McWILLIAMS, Circuit Judges.\n McWILLIAMS, Circuit Judge.\n \n \n 1\n Frank Lee filed an action under 42 U.S.C. Sec. 1983 against the Town of Estes Park, a Colorado municipality, and three of its policeman, namely, Chief of Police Robert W. Ault, Sergeant Walter F. Kappely, and Officer Gregg Filsinger. Also joined as a party defendant was Odd Lyngholm, the operator of a Standard Oil gas station in Estes Park. See also asserted pendant claims against Lyngholm, Filsinger, and Estes Park based on false arrest and false imprisonment.\n \n \n 2\n The district court granted summary judgment on Lee's Sec. 1983 claim in favor of Estes Park, Chief Ault, Sergeant Kappely, and Odd Lyngholm, the service station operator, and also dismissed without prejudice the pendant state claims against Lyngholm and Estes Park. Lee now appeals from that order as it relates to his Sec. 1983 claim. At oral argument, Lee's counsel stated that he was abandoning any challenge to the court's dismissal without prejudice of the pendant state claims. Apparently those claims, or some of them, have since been pursued to conclusion in the state court.1\n \n \n 3\n Lee's Sec. 1983 and pendant claims against Officer Filsinger were tried to a jury, which returned a verdict in favor of Filsinger. Lee also appeals from the judgment entered on that verdict, claiming trial error by the district court.\n \n \n 4\n The genesis of this dispute is the Estes Park flood in 1982. The Lawn Lake Dam broke and flooded Estes Park, causing considerable destruction of property. Mrs. Imogene Scott Cooper's mobile home was carried off by the floodwaters and part of it ended up on or adjacent to the Standard Oil gas station leased and operated by Odd Lyngholm.\n \n \n 5\n When her mobile home was carried away by the flood, Mrs. Cooper lost a metal box which contained items of some value to her. In an effort to assist Mrs. Cooper in locating the box, Frank Lee, the plaintiff, and his friend, Earl Hunter, went to the area where part of the mobile home had been found, which, as stated, was on or adjacent to the Lyngholm service station, and were using metal detectors in an effort to locate the metal box when Odd Lyngholm arrived on the scene. Lee and Hunter admittedly went behind a yellow plastic ribbon carrying the words, \"Police Line--Do Not Cross.\"\n \n \n 6\n Apparently Lyngholm believed that Lee and his friend were looters and an argument ensued which culminated in Lyngholm making, according to Lee, a citizen's arrest of Lee and taking him in Lyngholm's vehicle to police headquarters in Estes Park. At the scene of the arrest, Lyngholm accused Lee and his friend of trespassing on his property. Lee tried to explain his presence, but Lyngholm was not impressed. One word lead to another and, in this setting, Lyngholm made a \"citizen's arrest,\" using those very words, according to Lee, and Lyngholm then proceeded to escort Lee to the town's police station.2\n \n \n 7\n At police headquarters, Lyngholm and Lee were met by Officer Filsinger, who arrived at the station at about the same time. Filsinger separated Lyngholm and Lee, and led Lee to a back room, where he left Lee alone for about 10 or 15 minutes, while he questioned Lyngholm. After talking with Lyngholm, Officer Filsinger decided to charge Lee with disorderly conduct, Lyngholm signing the summons as the \"complainant.\" Lyngholm thereafter left the station. Filsinger then served the summons on Lee, and Lee, too, left the station house. Lee was neither fingerprinted nor photographed. The disorderly conduct charge was later dismissed on recommendation of the city attorney. Based on this sequence of events, Lee brought the present action in the United States District Court for the District of Colorado.\n \n Lyngholm\n \n 8\n The district court granted summary judgment in favor of Lyngholm on Lee's Sec. 1983 claim on the ground that Lyngholm's actions in making a \"citizen's arrest\" and transporting Lee to the police station were the actions of a private citizen and that there was no showing that Lyngholm acted in concert with the police or otherwise acted under color of law within the meaning of Sec. 1983. We agree.\n \n \n 9\n If we understand Lee's argument, he does not contend that the events which transpired at the service station give rise to a Sec. 1983 action. He recognizes that Warren v. Cummings, 303 F.Supp. 803 (D.Colo.1969) is at odds with such an argument. Rather, Lee contends that what subsequently happened at the police station involving Lyngholm and Officer Filsinger gives rise to his Sec. 1983 claim. We disagree.\n \n \n 10\n Although the color of state law requirement of Sec. 1983 is perhaps typically met by action on the part of a state official, it is nonetheless well established that private individuals, in a proper case, can also be held liable under Sec. 1983. See Dennis v. Sparks, 449 U.S. 24, 27-28, 101 S.Ct. 183, 186, 66 L.Ed.2d 185 (1980). However, in order to hold a private individual liable under Sec. 1983, it must be shown that the private person was jointly engaged with state officials in the challenged action, or has obtained significant aid from state officials, or that the private individual's conduct is in some other way chargeable to the State. Application of this general rule to the instant case would mean, according to Lee, that Lyngholm and Filsinger were jointly engaged in the alleged constitutional deprivation, and that therefore both were acting under the color of state law. In thus arguing, Lee relies on Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982).\n \n \n 11\n In Lugar, the Edmondson Oil Company sought, and obtained, under Virginia law, prejudgment attachment of property belonging to an alleged debtor of the company. The attachment was later dismissed when Edmondson failed to establish the statutory grounds for attachment. The alleged debtor then brought a Sec. 1983 action against Edmondson and its president alleging that in attaching his property they acted \"jointly\" with the State to deprive him of his property without due process of law. The district court and the Fourth Circuit Court of Appeals held that the action of Edmondson and its representative did not constitute state action as required by the Fourteenth Amendment and that the complaint therefore did not state a claim under Sec. 1983.\n \n \n 12\n The Supreme Court reversed the Court of Appeals in Lugar, and in so doing laid down a \"two-part approach\" to determine whether conduct allegedly depriving a party of his federal rights may be \"fairly attributable\" to a state and in this connection spoke at page 937, 102 S.Ct. at 2753-54 as follows:\n \n \n 13\n First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible. ... Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor. This may be because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State. Without a limit such as this, private parties could face constitutional litigation whenever they seek to rely on some state rule governing their interactions with the community surrounding them.\n \n \n 14\n We do not believe that Lugar supports Lee's position. Lugar was concerned with prejudgment attachment obtained by a private party availing himself of state law and jointly acting with state officials. We are disinclined to apply Lugar to a fact situation where a private party is simply reporting suspected criminal activity to state officials who then take whatever action they believe the facts warrant. The Court in Lugar in footnote 21 on page 939, 102 S.Ct. at 2755 commented, in this regard, as follows:\n \n \n 15\n Contrary to the suggestion of JUSTICE POWELL's dissent, we do not hold today that \"a private party's mere invocation of state legal procedures constitutes 'joint participation' or 'conspiracy' with state officials satisfying the Sec. 1983 requirement of action under color of law.\" Post, at 951 [102 S.Ct. at 2761]. The holding today, as the above analysis makes clear, is limited to the particular context of prejudgment attachment (emphasis ours).\n \n \n 16\n As indicated above, judgment was entered in favor of Lyngholm on Lee's Sec. 1983 claim on motion for summary judgment, and not on a motion to dismiss under Fed.R.Civ.P. 12(b)(6). Pretrial discovery, which included depositions of all participants, indicated that there was no genuine issue of material fact. And, in our view, those undisputed facts established that Lyngholm really did nothing more than report what he deemed to be criminal activity to the proper authorities. While he was perhaps \"insistent,\" Officer Filsinger made the decision as to whether Lee should be charged with any offense, and, if so, what offense should be charged. In this regard, Lyngholm wanted Lee charged with criminal trespass, but Filsinger rejected that suggestion and decided to file a lesser charge of disorderly conduct. There is no suggestion in the record before us that there was any prearrangement between Lyngholm and Filsinger, or that they were somehow acting as a team. As mentioned, Filsinger's motion for summary judgment on Lee's Sec. 1983 claim was denied, and that phase of the case was heard by a jury which found for Filsinger. However, the district court did not err in granting Lyngholm's motion for summary judgment, as the record clearly indicates that Lyngholm was not himself a state actor nor was he acting under color of state law.\n \n \n 17\n In support of our resolution of the matter, see Benavidez v. Gunnell, 722 F.2d 615 (10th Cir.1983), where we held that the mere furnishing of information to police officers who take action thereon does not constitute joint action under color of state law which renders a private actor liable under Sec. 1983. See also, Cruz v. Donnelly, 727 F.2d 79 (3d Cir.1984). In Cruz, a shopkeeper called police when he suspected a person of shoplifting in his store, and, when the police arrived, the shopkeeper asked that the suspect be searched. The police did so and found nothing. The suspect then brought a civil rights action against the shopkeeper. The district court granted summary judgment for the shopkeeper, and the Third Circuit affirmed. On appeal, it was argued that the shopkeeper and the police \"acted in concert\" and that therefore the shopkeeper, as well as the police, acted under color of state law. The Third Circuit rejected this argument. In so doing, the Third Circuit discussed Lugar, and concluded that it did not control. The Third Circuit held that even though the shopkeeper asked the police to search the suspect, the decision to search was the decision of the police, and that the actions of the shopkeeper, vis-a-vis the actions of the police, were not under the color of law.\n \n Estes Park, Ault, Kappely\n \n 18\n We find no error on the part of the district court in granting summary judgment in favor of Estes Park, Chief Ault, and Sergeant Kappely on Lee's Sec. 1983 claim. Neither Chief Ault nor Sergeant Kappely saw or conversed with Lee on the day in question. Officer Filsinger was the only officer involved with Lee and Lyngholm. Lee's Sec. 1983 claim against Kappely is based on the fact that the latter in a supervisory capacity read and initialed Officer Filsinger's \"incident report.\" We find no nexus between Kappely's action and Lee's claimed deprivation of federal rights.3\n \n \n 19\n Lee's Sec. 1983 claim against Estes Park and Chief Ault is premised on the allegedly inadequate training of Officer Filsinger, who, if he had been properly trained, would, under Lee's reasoning, have acted differently at the station house when Lyngholm brought Lee to the station house on a citizen's arrest. The connection between the allegedly inadequate training and the claimed injury is not apparent to us.4\n \n Filsinger\n \n 20\n As stated, Lee's Sec. 1983 claim and pendant claims for false arrest and false imprisonment against Officer Filsinger were tried to a jury, which found in favor of Filsinger. On appeal, Lee complains about instructions given the jury on \"good faith\" as a defense and the definition of \"trespass.\" At trial, there was a dispute as to whether Lee was, or was not, trespassing on Lyngholm's premises. We are not persuaded that either of the instructions here complained about is an incorrect statement of the law, and we perceive no reversible error.\n \n \n 21\n Lee also complains that he was forced to trial with only one defendant, Filsinger, and that he should have been allowed to proceed to trial against all defendants named in the complaint. However, as indicated, Estes Park, Ault, Kappely, and Lyngholm were properly dismissed from the case prior to trial.\n \n \n 22\n Judgment affirmed.\n \n \n \n 1\n We were advised at oral argument that in state court Lee not only lost his false arrest action against Lyngholm, but Lyngholm prevailed against Lee on a counterclaim\n \n \n 2\n In Lyngholm's account of the conversation, the words \"citizen's arrest\" were not used\n \n \n 3\n The plain language of Sec. 1983 requires that causation be established before liability can attach, 42 U.S.C. Sec. 1983, and it is a necessary element of any Sec. 1983 claim. City of Oklahoma City v. Tuttle, 471 U.S. 808, 818, 105 S.Ct. 2427, 2433-34, 85 L.Ed.2d 791 (1985). Here, whatever injury Lee may have suffered was complete by the time Filsinger's Incident Report reached Kappely\n \n \n 4\n Lee's inadequate training claim is based on this single incident. In order to hold Estes Park liable under Sec. 1983, Lee must establish the existence of a municipal policy that caused the alleged deprivation of federal rights. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). This municipal policy must be the result of \"a deliberate choice to follow a course of action ... made from among various alternatives....\" Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 1300, 89 L.Ed.2d 452 (1986). Here, Lee has made no showing of any policy whatever with respect to inadequately training police officers in handling citizens' arrests on the part of Chief Ault or Estes Park, beyond this single incident of allegedly unconstitutional conduct. The district court found that no such policy of inadequate training exists, and we see no reason to disturb this ruling. In support thereof, see Lusby v. T.G. & Y. Stores, Inc., 796 F.2d 1307, 1312 n. 5 (10th Cir.1986), where we observed that \"a single incident of unconstitutional conduct will not support a finding of a municipal policy.\" Finally, in the absence of any participation on Chief Ault's part in the events, in the absence of a \"policy,\" and in the absence of any showing of negligence, there is no basis for Sec. 1983 liability against Chief Ault\n \n \n ",
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| Tenth Circuit | Court of Appeals for the Tenth Circuit | F | USA, Federal |
2,616,169 | Doolin, Hargrave, Hodges, Kau-Ger, Lavender, Means, Opala, Reif, Simms, Summers, Wilson | 1986-07-25 | false | state-ex-rel-oklahoma-bar-assn-v-samara | Samara | State Ex Rel., Oklahoma Bar Ass'n v. Samara | STATE of Oklahoma, Ex Rel., OKLAHOMA BAR ASSOCIATION, Complainant, v. Carroll SAMARA, Respondent | K. Lynn Anderson, Gen. Counsel, Oklahoma Bar Ass’n, Oklahoma City, for complainant., Gomer Smith, Jr., Smith & Murdock, William A. Berry, Oklahoma City, for respondent. | null | null | null | null | null | null | null | Rehearing Denied Sept. 15, 1986. | null | null | 14 | Published | null | <parties id="b356-14">
STATE of Oklahoma, ex rel., OKLAHOMA BAR ASSOCIATION, Complainant, v. Carroll SAMARA, Respondent.
</parties><br><docketnumber id="b356-17">
SCBD No. 2830.
</docketnumber><br><docketnumber id="b356-18">
OBAD No. 563.
</docketnumber><br><court id="b356-19">
Supreme Court of Oklahoma.
</court><br><decisiondate id="b356-20">
July 25, 1986.
</decisiondate><br><otherdate id="b356-21">
Rehearing Denied Sept. 15, 1986.
</otherdate><br><attorneys id="b357-5">
<span citation-index="1" class="star-pagination" label="307">
*307
</span>
K. Lynn Anderson, Gen. Counsel, Oklahoma Bar Ass’n, Oklahoma City, for complainant.
</attorneys><br><attorneys id="b357-6">
Gomer Smith, Jr., Smith & Murdock, William A. Berry, Oklahoma City, for respondent.
</attorneys> | [
"725 P.2d 306"
]
| [
{
"author_str": "Doolin",
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": null,
"author_id": 5439,
"opinion_text": "\n725 P.2d 306 (1986)\nSTATE of Oklahoma, ex rel., OKLAHOMA BAR ASSOCIATION, Complainant,\nv.\nCarroll SAMARA, Respondent.\nSCBD No. 2830, OBAD No. 563.\nSupreme Court of Oklahoma.\nJuly 25, 1986.\nRehearing Denied September 15, 1986.\nK. Lynn Anderson, Gen. Counsel, Oklahoma Bar Ass'n, Oklahoma City, for complainant.\nGomer Smith, Jr., Smith & Murdock, William A. Berry, Oklahma City, for respondent.\n\n\n*307 MEMORANDUM OPINION\nDOOLIN, Vice Chief Justice.\nThis is the second application of the respondent, Carroll Samara for reinstatement to practice law. See, State ex rel. OBA v. Samara, 683 P.2d 979 (Okl.1984).\nRespondent was convicted on August 29, 1979 of a felony, making and subscribing a false tax return and attempting to evade and defeat income tax.[1] Under our Rule 7[2]§ 7.1, et seq., the respondent was suspended from practice of law on September 24, 1979. As a result of the required show cause provision of § 7.3 of the rules the suspension was modified on October 9, 1979 and respondent was allowed to:\n... continue his professional practice in all cases presently pending, where his name appears as attorney of record....\nOn October 28, 1980 respondent was completely and absolutely suspended from practice of law and the order of October 9, 1979 was withdrawn and vacated. Respondent commenced serving his sentence on the day following and on November 4, 1980 we entered our final order of discipline and the respondent was suspended from practice of law until October 27, 1984. The order of October 28, 1980 provided that in the event respondent be discharged by probation prior to October 27, 1984 and the proceedings in the Federal Court for the Western District of Oklahoma be terminated, the respondent may apply for reinstatement.\nThe respondent applied for reinstatement, and as set out in State ex rel OBA v. Samara,[3] supra, he was denied reinstatement on the ground that he had continued the practice of law during the period from October 9, 1979 to October 28, 1980.\nBefore going to the present application for reinstatement we deem it significant to point out that in the order of November 4, 1982 taking final disciplinary action against respondent that he was admonished to:\n... comply with all rules and regulations regarding admissions and disciplinary proceedings. The respondent is particularly admonished not to practice law during his period of suspension.\nTurning to the second application at hand.\nAlthough the Trial Panel of the present Professional Responsibility Tribunal unamimously recommend reinstatement and finds the respondent, 1) possesses good moral character, 2) has not engaged in the practice of law, and 3) possesses competency and learning required for admission; we are unconvinced.\nWe quote from State ex rel. OBA v. Samara, supra, p. 983:\n\"An applicant for reinstatement must establish affirmatively that if re-admitted or if the suspension from practice is removed the appliacant's conduct will conform to the high standards required of a member of the bar. The severity of the original offense and the circumstances surrounding it shall be considered in evaluating an application for reinstatement. The burden of proof by clear and convincing evidence in all such reinstatment proceedings shall be on the applicant. An applicant seeking such reinstatement *308 will be required to present stronger proof of qualification than one seeking admission for the first time. The proof presented must be sufficient to overcome the Supreme Court's former judgment adverse to the applicant....\"\n[1] This rule specifically provides that all circumstances surrounding the original disciplinary proceedings are relevant and proper inquiries in a reinstatement proceeding. The primary purpose of disciplinary proceedings is not punishment but purificatior of the Bar. Every licensed lawyer is presented to the public as to his professional integrity and expertise. State ex rel. Okla. Bar Assn. v. Raskin, 642 P.2d 262 (Okl.1982). The purpose of the proceeding and the inquiries made therein are broad; that is to allow the applicant to demonstrate that he is worthy of the honored mantle of an officer of this Courtan attorney of the State of Oklahoma. Respect for the rule of law is a singularly important trait in an attorney, for it is this profession upon which falls the weight social duty of fostering respect for the laws of society and the rule of law over men. The bases of an attorney's duties to this Court and society in general are broad and require the unfailing devotion of the practitioner in his profession. It is in this spirit that the rules for reinstatement specifically require a wide basis of inquiry. Our cases have consistently refused to allow the more technical rules of practice to fetter this broad inquiry. We have previously held that this Court desires the entire record of an attorney's professional conduct before the Court in a disciplinary action, thereby refusing to allow what was termed an arbitrary statute of limitations to circumscribe the investigation made in such disciplinary hearing. State ex rel. Oklahoma Bar Assn. v. Warzyn, 624 P.2d 1068 (1981). Similarly, warnings given an attorney during dismissal of a prior complaint have been held to be relevant upon investigation and adjudication of later complaints. State ex rel. Okla. Bar Assn. v. Massad, 334 P.2d 787 (Okl.1959).\nAlthough the evidence in the record is contested and conflicting in part, we believe that it established the respondent had:\n1. Listed himself in the yellow and white pages of the telephone book as an attorney while under final suspension.\n2. Claimed attorney status or professional standing on Income Tax returns made to the I.R.S.\n3. Advised one Holcomb in a domestic matter.\n4. Engaged in much more than clerical work in his association with other licensed attorneys, including using letterhead bearing the notation of Carroll Samara Attorney at Law.\nThis Court under 5 O.S.1981, Ch. 1 App. 1-A, 6.15 may:\n(a) ... approve the Trial Panel's findings of fact or make its own independent findings, impose discipline, dismiss the proceedings or take such other action as it deems appropriate.\nThe Supreme Court in Kansas in State v. Schumacher, 519 P.2d 1116 (1974)[4] observed and we so hold:\n\n*309 \"Where an attorney under suspension continues to practice just as before, with the sole exception of making any formal appearance in court, such conduct when added to that leading to his original suspension requires that he be indefinitely suspended.\"\nLikewise our review of a Trial Panel's report is not limited to weighing of the evidence or sustaining on basis of substantial evidence from a record, for 5 O.S.1981, Ch. 1, App. 1-A, § 11.6 provides this Court \"... may take such action as it deems appropriate based upon the record and the Trial Panel's report....\"\nIn State ex rel OBA v. Samara, supra, we held:\nIn reinstatement proceedings the Supreme Court does not function as a reviewing tribunal but as a licensing court exercising its exclusive original jurisdiction. State ex rel OBA v. Raskin, supra.\n.....\nRecommendations made by the Trial Panel in reinstatement proceedings are advisary in character, for the ultimate decision rests with the Supreme Court.\nWe find it unnecessary to prolong or consider other points raised by the respondent for we find he has continued to practice law since his original suspension in October of 1979.\nREINSTATEMENT DENIED.\nSIMMS, C.J., HARGRAVE and KAUGER, JJ., and MEANS and REIF, Special Judges, concur.\nHODGES, LAVENDER and SUMMERS, JJ., dissent.\n[MEANS and REIF, Special Judges, appointed in place of OPALA and WILSON, JJ., who disqualified.]\nNOTES\n[1] Cause No. CR-79-150 (W.D. of Okl.), a violation of 26 U.S.C. § 7206(1) and § 7201.\n[2] 5 O.S.1981, Ch. 1, App. 1-A 7.\n[3] The opinion in State ex rel. OBA v. Samara catalogs and lists respondent's derelictions and examples of his continued practice of law. See, pp. 981-982 of that opinion.\n[4] In Schumacher, supra, that Court found that practicing law included among other things:\n\n1. Use of letterheads with the suspended attorney's name thereon, after suspension,\n2. Listing of suspended attorney's name in telephone directories.\n3. Consulting with parties to a lawsuit. See also, State ex rel. Patton, Atty. Gen v. Marron, 22 N.M. 632, 167 P. 9 (1917); In re Phillips, 64 Mont. 492, 210 P. 89 (Mont.1922); People v. Humbert, 86 Colo. 426, 282 P. 263 (Colo.1929); State ex rel. Nebraska State Bar v. Butterfield, 172 Neb. 645, 111 N.W.2d 543 (1961); In re Hawkins, 81 Wash.2d 504, 503 P.2d 95 (1972).\nWith reference to our category 4 in paragraph preceeding, particularly in reference to engaging in much more than clerical work while working for other licensed attorneys, see, Crawford v. State Bar of Calif., 54 Cal.2d 659, 7 Cal.Rptr. 746, 355 P.2d 490 (1960); In re Bodkin, 21 Ill.2d 458, 173 N.E.2d 440 (1961).\nSchumacher also points out that lack of intent to practice law by a suspended attorney is ordinarily no defense in a reinstatement matter. 17 CJS Contempt No. 42 summarizes the rule. Schumacher teaches us at page 1125:\nIt is also clear that some actions which may be taken with impropriety by persons who have never been admitted to the practice of law, will be found to be in contempt if undertaken by a suspended attorney, [emphasis ours].\n\n",
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| Supreme Court of Oklahoma | Supreme Court of Oklahoma | S | Oklahoma, OK |
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