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Rovner, Sykes, Tinder
| 2011-01-13 | false |
leitgen-v-franciscan-skemp-healthcare-inc
| null |
Leitgen v. Franciscan Skemp Healthcare, Inc.
|
Christine LEITGEN, Plaintiff-Appellant, v. FRANCISCAN SKEMP HEALTHCARE, INC., Defendant-Appellee
|
Randall B. Gold, Attorney, Fox & Fox, Monona, WI, Michael Rachlis (argued), Attorney, Rachlis, Durham, Duff & Adler, Chicago, IL, for Plaintiff-Appellant., Saul C. Glazer, Michael J. Modi (argued), Attorneys, Axley Brynelson, Madison, WI, for Defendant-Appellee.
| null | null | null | null | null | null | null |
Argued Sept. 17, 2009.
| null | null | 0 |
Published
| null |
<parties id="b656-7">
Christine LEITGEN, Plaintiff-Appellant, v. FRANCISCAN SKEMP HEALTHCARE, INC., Defendant-Appellee.
</parties><br><docketnumber id="b656-10">
No. 09-1496.
</docketnumber><br><court id="b656-11">
United States Court of Appeals, Seventh Circuit.
</court><br><otherdate id="b656-12">
Argued Sept. 17, 2009.
</otherdate><br><decisiondate id="b656-13">
Decided Jan. 13, 2011.
</decisiondate><br><attorneys id="b657-9">
<span citation-index="1" class="star-pagination" label="669">
*669
</span>
Randall B. Gold, Attorney, Fox & Fox, Monona, WI, Michael Rachlis (argued), Attorney, Rachlis, Durham, Duff & Adler, Chicago, IL, for Plaintiff-Appellant.
</attorneys><br><attorneys id="b657-10">
Saul C. Glazer, Michael J. Modi (argued), Attorneys, Axley Brynelson, Madison, WI, for Defendant-Appellee.
</attorneys><br><judges id="b657-11">
Before ROVNER, SYKES, and TINDER, Circuit Judges.
</judges>
|
[
"630 F.3d 668"
] |
[
{
"author_str": "Rovner",
"per_curiam": false,
"type": "010combined",
"page_count": 19,
"download_url": "http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=09-1496_002.pdf",
"author_id": null,
"opinion_text": " In the\n\nUnited States Court of Appeals\n For the Seventh Circuit\n\nNo. 09-1496\n\nC HRISTINE L EITGEN,\n Plaintiff-Appellant,\n v.\n\nF RANCISCAN S KEMP H EALTHCARE, INC.,\n\n Defendant-Appellee.\n\n\n Appeal from the United States District Court\n for the Western District of Wisconsin.\n No. 08-cv-038-bbc—Barbara B. Crabb, Judge.\n\n\n\n A RGUED S EPTEMBER 17, 2009—D ECIDED JANUARY 13, 2011\n\n\n\n\n Before R OVNER, S YKES, and T INDER, Circuit Judges.\n R OVNER, Circuit Judge. Dr. Christine Leitgen sued\nher former employer, Franciscan Skemp Healthcare\n(“the Hospital”), under Title VII of the Civil Rights Act\nof 1964, claiming as relevant here that it retaliated\nagainst her by forcing her to resign after she com-\nplained that its compensation scheme unlawfully under-\npaid physicians based on gender. The Hospital pools\nrevenue received for childbirth deliveries and redistrib-\n\f2 No. 09-1496\n\nutes the receipts equally among all physicians in the\nobstetrics department, but Leitgen advocated for a\nsystem that would pay physicians on a per-delivery\nbasis. The district court granted summary judgment for\nthe Hospital. We affirm.\n\n\n I.\n Leitgen began working as a physician in the Hospital’s\nDepartment of Obstetrics and Gynecology in 1993.\nThe number of doctors in the group fluctuated with\ntime, but when Leitgen joined she became the fourth\nphysician and second woman in the group. Over the\nyears Leitgen developed her practice and became one of\nthe department’s most in-demand and highest paid\ndoctors, frequently performing more than 100 deliveries\nper year. In January 1999, the department appointed her\nto serve as chairperson, and in 2002 it reappointed her to\na second term. Leitgen stepped down before her second\nterm expired, however, to dedicate more time to her\nclinical practice, and after about a year of interim leader-\nship, the Hospital eventually hired Dr. Edward Sandy\nin August 2004 to serve as the department’s new chair.\n\n\n A.\n Throughout Leitgen’s employment, the Hospital billed\npregnant women for a package of services that included\nboth prenatal care and delivery. And although the\nHospital compensated the patient’s primary physician\ndirectly for providing prenatal services, it pooled the\n\fNo. 09-1496 3\n\nrevenue generated from the delivery and redistributed\nit equally among the physicians in the group. Because\nof this policy of sharing delivery revenue, the doctors\nwho performed the most deliveries—regardless of\ngender—received less payment than they would under\na system where each doctor was paid purely for\nservices rendered.\n At several points during Leitgen’s employment, she\nand other female physicians expressed concern that,\nbecause each woman in the practice had a larger patient\nbase and thus tended to perform more deliveries than\neach man, the Hospital’s policy of pooling delivery reve-\nnue meant that the women were unfairly compensated\nfor their birthing services. Between 1993 and 1999, even\nthough her salary was one of the highest in her group,\nLeitgen complained numerous times about the pay struc-\nture to the then-chair of the department. At one point\nthe chair raised the issue with the Hospital’s compensa-\ntion committee and learned that any change would\nhave to be made within the department. No change was\nmade after these initial inquiries.\n The female physicians again raised the issue during\nLeitgen’s tenure as chair. At that point it remained\nunclear whether a change required a unanimous vote of\nthe department, but regardless, Leitgen did not try to\nmodify the system because the female doctors in the\ngroup feared that a change would adversely affect the\ndepartment’s morale. In 2003, one of the department’s\nother female physicians, Dr. Karen Keil, complained again\nto Leitgen about the compensation setup, pointing out\n\f4 No. 09-1496\n\nthat because she and Leitgen currently performed more\ndeliveries than anyone else in the group, the system\nwas most detrimental to them. When Sandy became the\ndepartment chair, both Keil and Leitgen informed him\nthat they thought the compensation system was unfair\nto them, both as women and as high-volume physicians.\n(The parties dispute whether Leitgen and Keil framed\ntheir problem with the compensation system as im-\nplicating possible gender discrimination, but for pur-\nposes of summary judgment we resolve that dispute\nin Leitgen’s favor.)\n In light of these complaints, the department’s physi-\ncians discussed compensation schemes several times.\nWhen Sandy became chair, he put the issue on the\nagenda for multiple department meetings and distrib-\nuted scholarly work outlining different potential models\nof compensation. Sandy also expressed a concern that\npaying doctors based purely on their number of\ndeliveries would tempt them to schedule medically\nunnecessary inductions so that patients would give\nbirth during a particular shift. At no point during any\nof these discussions did Leitgen or any other doctor ask\nfor a vote on the issue, and the shared-revenue arrange-\nment remained in place.\n When Leitgen’s intra-departmental complaints proved\nunproductive, she took her concerns directly to Tom\nTiggelaar, who was the secretary of the Hospital’s com-\npensation committee, the Hospital’s vice president of\nfinance, and the chief financial officer. On August 14,\n2006, Leitgen emailed Tiggelaar requesting a meeting, and\n\fNo. 09-1496 5\n\nTiggelaar responded by speaking to Sandy about the\nissue and by reaching out to other employees to\nrequest statistics regarding Leitgen’s production as com-\npared to other members of the department. After\nreceiving delivery statistics, Tiggelaar met with Leitgen\non September 5, 2006, to discuss the matter. Leitgen\ncomplained that the compensation system adversely\naffected her pay and that she thought the pooling and\nsharing of delivery revenues was discriminatory to\nwomen. (The Hospital disputes that gender-based dis-\ncrimination was part of this conversation, but again, we\nassume for purposes of summary judgment that Leitgen\ncommunicated the potential discriminatory import of\nher concerns.) After the brief meeting, neither party\nfollowed through on promises to resume their conversa-\ntion. But, according to Tiggelaar, he reported “the essence”\nof the meeting to both Sandy and Diane Holmay (one\nof Leitgen’s supervisors) within a day or two. Leitgen\nherself also informed Sandy that the meeting had taken\nplace. According to Leitgen, Sandy was annoyed that\nshe had taken her concerns outside of the department,\nand their relationship suddenly soured after her meeting\nwith Tiggelaar.\n\n\n B.\n Although Leitgen generated substantial revenue on\nbehalf of the Hospital, her time with the OB/GYN depart-\nment was marred by conflicts with patients and staff.\nLeitgen takes issue with the way other staff members\nperceived her behavior during these conflicts, but she\n\f6 No. 09-1496\n\nacknowledges that patients and nurses complained about\nher communication style. Even though we construe the\nfacts in Leitgen’s favor, we need not ignore the undis-\nputed fact that these unflattering complaints were made\nby patients and staff. For example, in 2001 a nurse com-\nplained that Leitgen chastised her about her perfor-\nmance and stated that it was “typical of the poor nursing\ncare” in the department. The following year, a patient\nexperiencing an ectopic pregnancy reported that Leitgen\nrefused to treat her. Later in 2002, a different nurse con-\nfronted Leitgen, telling her that members of the sup-\nport staff found her demeanor condescending. In 2003,\nLeitgen met with members of the Hospital’s management\nto discuss her combative communication with other\nemployees, and after that meeting one of the managers\nrecommended to Holmay that Leitgen be fired because\nof her communication problems. But the Hospital\ndid not fire Leitgen at that time, and the following year\nshe and Holmay met with the same manager again to\ndiscuss similar issues of teamwork and collaboration.\nDuring that meeting Holmay confronted Leitgen about\nnew incidents involving conduct that Holmay con-\nsidered disruptive to patient safety and staff camaraderie.\n Even after these conversations with management\nabout respectful communication, nurses continued to\ntake issue with Leitgen’s behavior, and they reported\ntheir concerns to Bonnie Young, the director of the depart-\nment’s nursing staff. Here again, Leitgen disputes the\nway her behavior was perceived by the staff involved,\nbut admits that she received multiple oral warnings\nbetween 2004 and 2006 that her communication with the\n\fNo. 09-1496 7\n\nsupport staff was problematic. For example, Leitgen\nacknowledges that at least two nurses told Young that\nthey refused to continue working in the department\nbecause of the way Leitgen had treated them.\n Despite these continued communication problems, in\nher performance evaluation in March 2006, both Sandy\nand Holmay identified positive contributions that\nLeitgen made to the department. They told Leitgen that\nshe had shown some improvement in her interactions\nwith support staff and was an asset to the Hospital.\nSandy also asked Leitgen to serve on the recruiting com-\nmittee, and he invited her to represent the department\nat a conference at the end of the year. As of March 2006,\nboth Holmay and Sandy agreed that Leitgen faced no\nrisk of termination.\n But four months after this performance evaluation,\nnurses began to renew their complaints about Leitgen.\nIn July 2006, Young reported to Sandy that another\nnurse, Wendy Stone, had complained that Leitgen had\nhumiliated and verbally abused her in front of a patient.\n(Leitgen admits to having made comments that upset\nStone in front of a patient but contends that the com-\nments were justified by Stone’s performance.) The same\nday that Sandy learned of the incident he wrote the first\nof a number of emails to Holmay about the possibility\nof disciplining Leitgen. In this email, Sandy said that he\nhad tolerated Leitgen because she added value to the\ndepartment, but he also commented that her behavior\ncould not “go on forever.” After meeting with Stone to\ndiscuss the incident, Sandy sent another email to Holmay\n\f8 No. 09-1496\n\nstating that they needed to meet in person because, upon\nreflection, he believed that Leitgen’s interpersonal con-\nflicts were more serious than he had previously under-\nstood. Both Stone’s complaint and Sandy’s decision\nto explore discipline against Leitgen occurred more\nthan a month before Leitgen met with Tiggelaar in early\nSeptember 2006 to complain about the compensation\nsystem.\n Leitgen’s deteriorating relationship with nursing\nstaff and patients continued throughout September. For\nexample, while Leitgen was in the middle of a delivery,\na nurse called asking for assistance with a non-urgent\nmatter. Leitgen could not take the call herself, but she\ntold the person relaying the message to “go hit” the\nnurse who had requested assistance. Leitgen later testi-\nfied that she had meant this comment facetiously, but\nshe admitted that some people in the room apparently\ndid not take it as a joke. That same month a patient com-\nplained that Leitgen had blamed her for the difficulties\nthat had arisen during her emergency Caesarean sec-\ntion. And around the same time, Young received two\nadditional complaints from staff members about Leitgen:\na nurse complained that she had been belittled, and a\nmidwife reported that she was unable to build a collabora-\ntive practice with Leitgen. Young did not notify Leitgen\nabout either of these incidents or complaints.\n During September (the exact date is uncertain), while\nshe was still serving on the recruiting committee, Leitgen\nalso made comments that members of the Hospital\nviewed as disloyal to its recruiting mission. Leitgen told\n\fNo. 09-1496 9\n\na doctor that the department was recruiting that she felt\nher ideas were not heard, that she had little respect for\nthe nursing staff, and that she felt unhappy at the Hospi-\ntal. In the course of that conversation, Leitgen told the\nrecruit that she would not have joined the Hospital\n“knowing what she knows now” and that she might\nbe gone by the time he arrived. After this conversation\nwith Leitgen, the recruit contacted Sandy and expressed\na concern about accepting a position with the Hospital\nbecause he feared that the physicians were unhappy.\n\n\n C.\n By early September 2006, having decided the previ-\nous month to discipline Leitgen for her abuse of staff,\nSandy and Holmay began preparing a recommendation\nthat Leitgen be terminated. They met with a member of\nthe management committee to determine what docu-\nments they would need, and shortly after this meeting,\nHolmay asked Young to prepare a timeline listing in-\nstances where nurses or patients had reported that\nLeitgen was either rude or disruptive. Young prepared a\nfirst draft of this timeline by September 8, 2006, based on\nunofficial, private notes that she kept regarding conflicts\nbetween staff members. Although Young memorialized\ncomplaints from nurses regarding interactions with\ndoctors and other staff in these notes, she did not, as a\ngeneral rule, investigate the incidents or take note of\nopposing viewpoints. Holmay and Sandy had been ex-\nchanging emails about disciplining Leitgen since at least\nJuly 2006, but before September 2006 no one had been\n\f10 No. 09-1496\n\ngathering documentation about Leitgen “for the pur-\nposes of termination.” In addition to requesting\nthe timeline, Sandy began excluding Leitgen from con-\nversations about recruiting and told her that she would\nno longer be representing the Hospital at the upcoming\nconference. Sandy did not inform Leitgen that she was\nin jeopardy of being fired.\n On October 31, 2006, Sandy formally recommended to\nthe Hospital’s executive committee that it terminate\nLeitgen. He supported his recommendation with the\nfollowing documentation: personal letters from both\nhim and Holmay, Young’s timeline, and a separate\ntimeline created by Holmay. Through these documents\nand their personal statements to the committee, both\nSandy and Holmay expressed their opinion that, although\nLeitgen was an amply qualified physician, her hostility\ntoward staff and patients was unacceptable. In addition\nto these concerns, one of the members of the executive\ncommittee emphasized that he was dissatisfied by the\nnegative comments Leitgen had made recently to the\nphysician the Hospital had been trying to recruit. After\nhearing recommendations from Sandy and Holmay, the\ncommittee voted to fire Leitgen.\n On November 14, 2006, Leitgen attended a “termination\nsession” where members of the executive committee\ntold her that she could either resign or be fired. Leitgen\nquit the following day. Holmay attended the meeting\nwith two other hospital administrators, but Sandy was\nabsent. At the meeting, the Hospital told Leitgen that\nit was terminating her because of the numerous com-\n\fNo. 09-1496 11\n\nplaints that nurses and patients had made against her\nover the years. In discharging Leitgen, the Hospital\nelected not to follow its policy recommending that it\nnotify employees in writing of potential disciplinary\nactions resulting from disruptive behavior.\n The district court granted summary judgment for the\nHospital. It bypassed the question whether Leitgen’s\ncomplaints regarding the compensation system were\nprotected conduct and concluded that, even if they quali-\nfied, no reasonable jury could find a causal connection\nbetween Leitgen’s complaints and her forced resignation.\nThe court found it significant that Leitgen had been\ncomplaining about the compensation system for years,\nbut the Hospital did not force her to resign until after\na flurry of complaints from nurses regarding her conduct.\n\n\n II.\n On appeal, Leitgen relies exclusively on the direct\nmethod of proof to argue that genuine issues of material\nfact prevent summary judgment for the Hospital. To\nsurvive summary judgment on her retaliation claim\nunder the direct method, Leitgen needed to provide\nsufficient direct or circumstantial evidence to establish\n(1) that she engaged in protected conduct, (2) that she\nsuffered an adverse employment action, and (3) that there\nwas a causal connection between the two. See Jones v.\nRes-Care, Inc., 613 F.3d 665, 671 (7th Cir. 2010); Casna v. City\nof Loves Park, 574 F.3d 420, 426 (7th Cir. 2009). There is\nno dispute that Leitgen’s forced resignation constitutes\nan adverse employment action, so we are left with the\n\f12 No. 09-1496\n\nquestions whether Leitgen engaged in protected conduct\nand whether that conduct was causally connected to\nher forced resignation. The district court bypassed the\nissue of protected conduct, but because Leitgen focuses\non her conversation with Tiggelaar as the applicable\nprotected conduct and that conversation is relevant to\nthe question of causation, we begin our analysis there.\n\n\n A.\n For Leitgen to show that she engaged in protected\nconduct, she had to prove that she had a reasonable,\ngood-faith belief that the compensation system was\ndiscriminatory when she complained about it, but she\nneed not prove that the system was actually discrim-\ninatory such that she would have prevailed on a claim\nof intentional discrimination under Title VII. See Tate v.\nExec. Mgmt. Servs., Inc., 546 F.3d 528, 532 (7th Cir. 2008);\nFine v. Ryan Int’l Airlines, 305 F.3d 746, 752 (7th Cir. 2002).\nOur requirement that Leitgen have a reasonable, good-\nfaith belief that her complaint involved gender discrim-\nination is not onerous. See Mattson v. Caterpillar, Inc., 359\nF.3d 885, 892 (7th Cir. 2004). She simply had to show that\nher belief that she was complaining about unlawful\ndiscrimination was not “ ‘completely groundless.’ ” See\nFine, 305 F.3d at 752 (quoting McDonnell v. Cisneros, 84\nF.3d 256, 259 (7th Cir. 1996)).\n In her appellate brief, Leitgen acknowledges the Hospi-\ntal’s argument that she never engaged in protected\nconduct but responds that the Supreme Court’s decision\nin Crawford v. Metro. Gov’t of Nashville & Davidson Cnty.,\n\fNo. 09-1496 13\n\n129 S. Ct. 846 (2009), establishes that her complaints were\nprotected. Crawford addressed only whether cooperating\nwith an employer’s internal investigation of discrim-\nination was protected conduct, id. at 850-51, and is\nnot dispositive here. Instead, the question here is\nwhether Leitgen reasonably believed that her com-\nplaints about the compensation system amounted to\nmore than a gender-neutral accusation that the system\nunfairly penalized her as a high-volume physician and\ninstead charged gender discrimination.\n Title VII, of course, prohibits discriminatory compensa-\ntion based on gender, see 42 U.S.C. § 2000e-2(a)(1);\nGoodman v. Nat’l Sec. Agency, Inc., 621 F.3d 651, 656 (7th\nCir. 2010). The Hospital recognizes that a disparity\nin pay based on gender would violate Title VII, but\nargues that Leitgen lacked an objectively reasonable\nbelief that the Hospital’s pay system intentionally dis-\ncriminated against women. The Hospital supports its\nposition by pointing out that the compensation system\nhad remained the same throughout Leitgen’s employ-\nment, that Leitgen did not try to change the system\nduring her tenure as department chair, and that the\nHospital justified the pay scheme with the nondiscrim-\ninatory interest in discouraging elective inductions.\nBut these reasons do not undermine the sincerity or\nreasonableness of Leitgen’s complaint that she believed\nthe Hospital’s pay scheme to be discriminatory based\non gender. Throughout her opposition to summary judg-\nment, Leitgen has repeatedly pointed to evidence that\nshe has always framed her complaints as a potential\nissue of gender discrimination. Moreover, the ongoing\n\f14 No. 09-1496\n\nnature of her complaints during her tenure, and her\ntolerance of the system while she was chair, do not con-\nclusively show that her complaints about the pay\nsystem were unreasonable or insincere. Instead, these\nfacts suggest that the impediments to changing the com-\npensation system at the Hospital were significant and\nenduring. Thus, we credit Leitgen’s contention for pur-\nposes of summary judgment that her conversation\nwith Tiggelaar was protected conduct. We note, however,\nthat Leitgen’s focus on her conversation with Tiggelaar\nas the particular instance of protected conduct that\ncaused her termination is relevant to the issue of causal\nconnection.\n\n\n B.\n Leitgen next argues that she presented sufficient evi-\ndence that the Hospital’s decision to fire her was\nmotivated by her complaints about the compensation\nsystem, particularly her conversation with Tiggelaar. To\nestablish a causal connection between her allegedly\nprotected conduct and her forced resignation, Leitgen\nhad to show that her complaints were “a substantial or\nmotivating factor” in the Hospital’s decision to fire her.\nSee Gates v. Caterpillar, Inc., 513 F.3d 680, 686 (7th Cir.\n2008) (citation and quotation omitted). Leitgen points to\ncircumstantial evidence that, in her view, shows that the\nHospital based its decision, at least in part, on her com-\nplaints about the compensation system. We address her\nevidence and, like the district court, conclude that the\ninferences Leitgen attempts to draw from it are too at-\n\fNo. 09-1496 15\n\ntenuated to survive summary judgment when con-\nsidered individually or together.\n Leitgen relies most heavily on the temporal proximity\nbetween her conversation with Tiggelaar and her forced\nresignation. As we have often observed, suspicious\ntiming alone is almost always insufficient to survive\nsummary judgment. Leonard v. E. Ill. Univ., 606 F.3d 428,\n432-33 (7th Cir. 2010); Turner v. Saloon, Ltd., 595 F.3d 679,\n687 (7th Cir. 2010). Leitgen nonetheless contends that\nthis case is the exception because Sandy and Holmay\nbegan preparing for her termination just days after her\nmeeting with Tiggelaar. See Casna, 574 F.3d at 427 (finding\nthat suspicious timing created triable issue where em-\nployee was terminated one day after protected conduct);\nSpiegla v. Hull, 371 F.3d 928, 943 (7th Cir. 2004) (four days\nlater); McClendon v. Indiana Sugars, Inc., 108 F.3d 789, 796-\n97 (7th Cir. 1997) (two or three days later). After re-\nviewing the evidence, we find that Leitgen cannot over-\ncome the general rule that suspicious timing alone is\ninsufficient to support a claim of retaliation.\n First, Leitgen’s conversation with Tiggelaar was not the\nfirst time that she complained about the compensation\nsystem. To the contrary, she first pursued this issue\nwith the department years before the Hospital fired her.\nWhen an employee’s protected conduct is separated by\na significant period of time from the adverse employ-\nment action, the proximity of the incidents does not\nsupport a causal connection between them. See Leonard,\n606 F.3d at 432 (finding adverse employment action six\nmonths after protected conduct insufficient to establish\n\f16 No. 09-1496\n\nretaliation claim); Argyropoulos v. City of Alton, 539 F.3d\n724, 734 (7th Cir. 2008) (seven weeks between events).\n Leitgen responds that her complaints were ongoing\nup until September 2006, and therefore a large time gap\ndoes not separate her protected conduct from her dis-\ncharge. But this response misses the point. Because she\nhad been complaining to hospital executives about the\npay system for years, she must offer a valid reason why\nher conversation with Tiggelaar would suddenly trigger\nretaliation. She proposes one reason: It was the first\ntime she raised her concern to anyone outside the de-\npartment. But this assertion is incorrect. Leitgen testified\nthat, with the help of the then-chair of the department,\nshe raised these concerns with the compensation com-\nmittee (who are people outside the department) sometime\nbefore she herself became chair in 1999. Even though\nthese extra-departmental complaints occurred before\nSandy came to the Hospital, Leitgen admitted that both\nSandy and Holmay—the executives who recommended\nher termination—knew of her concerns about the com-\npensation system years before the Hospital forced her\nto resign. A claim of retaliation based on suspicious\ntiming depends on what the relevant decision-makers\nknew and when, see Salas v. Wis. Dep’t of Corr., 493 F.3d 913,\n925 (7th Cir. 2007); Tomanovich v. City of Indianapolis, 457\nF.3d 656, 668 (7th Cir. 2006), and here the evidence\nshows that the relevant decision-makers knew of\nLeitgen’s belief that the compensation system was dis-\ncriminatory long before they decided to terminate her.\n Leitgen’s reliance on her conversation with Tiggelaar\nas the protected conduct that caused her termination is\n\fNo. 09-1496 17\n\nalso flawed because Sandy and Holmay had begun dis-\ncussing ways to discipline Leitgen before that meeting\never took place. Sandy and Holmay exchanged emails\nabout how best to discipline Leitgen after she belittled\nNurse Stone in front of a patient in July 2006, weeks\nbefore Leitgen wrote to Tiggelaar to request a meeting\nand more than a month before that meeting occurred.\nWhen a retaliation claim is based on suspicious timing,\n“the order of events is even more important than the\ntime between them; the theory doesn’t work if the re-\ntaliatory act precedes the protected activity.” Leonard, 606\nF.3d at 432. Here, although Leitgen asserts that there is\na dispute of fact, the evidence is conclusive that Sandy\nand Holmay had decided to consider various disciplinary\nresponses to Leitgen’s disruptive behavior well before\nshe engaged in the allegedly protected conduct of talking\nto Tiggelaar. And Holmay’s admission that no one had\nbegun gathering documentation to support the recom-\nmendation for Leitgen’s termination until Septem-\nber 2006 does not refute the undisputed evidence that\nSandy and Holmay had already decided to pursue some\ntype of discipline against Leitgen well before she ever\nmet with Tiggelaar.\n Leitgen next argues that the Hospital’s sudden creation\nof a timeline of her “unacceptable behavior” just three\ndays after her meeting with Tiggelaar is suspicious\nenough to overcome summary judgment. Although a\nretaliation claim can be supported by evidence of “sudden\ndissatisfaction with an employee’s performance,” particu-\nlarly when an employee has a generally good record,\nCulver v. Gorman & Co., 416 F.3d 540, 546 (7th Cir. 2005),\n\f18 No. 09-1496\n\nthe evidence in this case belies that characterization.\nLeitgen refers us to her “outstanding” performance\nevaluation in March 2006, but in that evaluation, Sandy\nand Holmay told her that her interpersonal relationships\nhad merely “improved.” In any event, Sandy and Holmay\ndid not suddenly become dissatisfied with Leitgen’s\nbehavior after she met with Tiggelaar; the evidence\nshows that they both considered her behavior to be prob-\nlematic before the meeting, and they were already in\nthe midst of devising methods to respond when she\nrequested the meeting. The undisputed evidence also\nestablishes that Holmay had been dissatisfied with\nLeitgen’s interpersonal flaws for a long time, so much so\nthat she participated in meetings with administrators\nthree years earlier that had resulted in a recommenda-\ntion that Leitgen be fired.\n Leitgen also faults the Hospital for creating and relying\non a timeline that was not based on pre-existing docu-\nments and for failing to comply with its policy recom-\nmending written warnings of unacceptable behavior. The\nHospital’s policy favors, but does not require, the\nwritten notice that Leitgen claims she never received. By\nLeitgen’s own admission, she learned of many of the\ncomplaints against her when she was orally warned\nabout her behavior. And she does not deny that she\nattended multiple meetings with Hospital administrators\nwhere they notified her of their problems with her\nattitude toward coworkers. Given that Leitgen admits\nthat she attended disciplinary meetings and received oral\nwarnings, the Hospital’s neglect to follow its recom-\nmended policy of documenting those discussions is not\nevidence of retaliation.\n\fNo. 09-1496 19\n\n Finally, Leitgen argues that the Hospital also retaliated\nagainst Keil, another female physician, by forcing her\nto quit after she complained that the pay system dis-\ncriminated against her as a woman. This treatment,\nLeitgen urges, further supports her claim of retaliation.\nAlthough the Hospital’s discrimination against other\nemployees who raised similar complaints would be\ncircumstantial evidence to support Leitgen’s retaliation\nclaim, see Hasan v. Foley & Lardner LLP, 552 F.3d 520, 527\n(7th Cir. 2008); Troupe v. May Dep’t Stores Co., 20 F.3d 734,\n737 (7th Cir. 1994), Leitgen’s reliance on Keil is\nunavailing because the record contains no evidence that\nthe Hospital did in fact discriminate against Keil.\n For the foregoing reasons, we therefore A FFIRM the\njudgment of the district court.\n\n\n\n\n 1-13-11\n\f",
"ocr": false,
"opinion_id": 182782
}
] |
Seventh Circuit
|
Court of Appeals for the Seventh Circuit
|
F
|
USA, Federal
|
2,711,270 | null | 2014-01-31 | false |
people-of-michigan-v-bernard-a-smith
| null |
People of Michigan v. Bernard a Smith
| 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/20140131_S147933_15_147933_2014-01-31_or.pdf",
"author_id": null,
"opinion_text": "Order Michigan Supreme Court\n Lansing, Michigan\n\n January 31, 2014 Robert P. Young, Jr.,\n Chief Justice\n\n 147933 Michael F. Cavanagh\n Stephen J. Markman\n Mary Beth Kelly\n Brian K. Zahra\n Bridget M. McCormack\n PEOPLE OF THE STATE OF MICHIGAN, David F. Viviano,\n Plaintiff-Appellee, Justices\n\n v SC: 147933\n COA: 313365\n Wayne CC: 12-002589-FC\n BERNARD A. SMITH,\n Defendant-Appellant.\n\n _________________________________________/\n\n On order of the Court, the application for leave to appeal the September 11, 2013\n order of the Court of Appeals is considered, and it is DENIED, because we are not\n persuaded that the question presented should be reviewed by this Court.\n\n\n\n\n I, Larry S. Royster, 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 January 31, 2014\n h0127\n Clerk\n\f",
"ocr": false,
"opinion_id": 2711270
}
] |
Michigan Supreme Court
|
Michigan Supreme Court
|
S
|
Michigan, MI
|
223,954 | null | 1949-11-09 | false |
marie-roberts-v-united-states-of-america
| null |
Marie Roberts v. United States of America
| null | null | null | null | null | null | null | null | null | null | null | null | 0 |
Published
| null | null |
[
"178 F.2d 663"
] |
[
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": "http://bulk.resource.org/courts.gov/c/F2/178/178.F2d.663.3898.html",
"author_id": null,
"opinion_text": "178 F.2d 663\n Marie ROBERTSv.UNITED STATES of America et al.\n No. 3898.\n United States Court of Appeals Tenth Circuit.\n November 9, 1949.\n \n Appeal from the United States District Court for the District of Kansas.\n Fred M. Roberts and Lawrence E. Goldman, Kansas City, Missouri, for appellant.\n Lester Luther, United States Attorney, V. J. Bowersock, Assistant United States Attorney, Topeka, Kan., Harry W. Colmery, Peter F. Caldwell, Topeka, Kan., Morris Dubiner, Kansas City, Mo., Benson & Miller, Kansas City, Kan., Temmey & Luby, Huron, South Dakota, and David H. Fisher, Topeka, Kan., for appellees.\n Before PHILLIPS, Chief Judge, and BRATTON and PICKETT, Circuit judges.\n PER CURIAM.\n \n \n 1\n Appeal dismissed November 9, 1949, pursuant to stipulation.\n \n ",
"ocr": false,
"opinion_id": 223954
}
] |
Tenth Circuit
|
Court of Appeals for the Tenth Circuit
|
F
|
USA, Federal
|
2,445,603 |
Stephenson
| 1967-06-01 | false |
fidelity-savings-loan-assn-of-port-arthur-v-baldwin
|
Baldwin
|
Fidelity Savings & Loan Ass'n of Port Arthur v. Baldwin
|
FIDELITY SAVINGS & LOAN ASSOCIATION OF PORT ARTHUR, Appellant, v. Howard Lyle BALDWIN Et Ux., Appellee
|
Tom Featherston, Port Arthur, for appellant., Herbert A. Plummer, Port Arthur, for appellee.
| null | null | null | null | null | null | null |
Rehearing Denied June 21, 1967.
| null | null | 9 |
Published
| null |
<parties id="b506-3">
FIDELITY SAVINGS & LOAN ASSOCIATION OF PORT ARTHUR, Appellant, v. Howard Lyle BALDWIN et ux., Appellee.
</parties><br><docketnumber id="b506-6">
No. 6889.
</docketnumber><br><court id="b506-7">
Court of Civil Appeals of Texas. Beaumont.
</court><br><decisiondate id="b506-9">
June 1, 1967.
</decisiondate><br><otherdate id="b506-10">
Rehearing Denied June 21, 1967.
</otherdate><br><attorneys id="b507-4">
<span citation-index="1" class="star-pagination" label="483">
*483
</span>
Tom Featherston, Port Arthur, for appellant.
</attorneys><br><attorneys id="b507-5">
Herbert A. Plummer, Port Arthur, for appellee.
</attorneys>
|
[
"416 S.W.2d 482"
] |
[
{
"author_str": "Stephenson",
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": null,
"author_id": null,
"opinion_text": "\n416 S.W.2d 482 (1967)\nFIDELITY SAVINGS & LOAN ASSOCIATION OF PORT ARTHUR, Appellant,\nv.\nHoward Lyle BALDWIN et ux, Appellee.\nNo. 6889.\nCourt of Civil Appeals of Texas, Beaumont.\nJune 1, 1967.\nRehearing Denied June 21, 1967.\n*483 Tom Featherston, Port Arthur, for appellant.\nHerbert A. Plummer, Port Arthur, for appellee.\nSTEPHENSON, Justice.\nThis is an action to enjoin foreclosure of a mechanics' and materialmen's lien. Trial was before the court and judgment was rendered for plaintiffs granting such injunction. The parties will be referred to here as they were in the trial court.\nThe facts in this case are not disputed. Howard Lyle Baldwin and wife, plaintiffs, entered into a mechanics' and materialmen's lien contract with Diamond Enterprises, Inc., hereinafter called \"Diamond\", for the construction of a home. Such contract recited the payment of $1,000.00 down and the balance of $15,000.00 payable upon completion of the home. This contract was assigned to Fidelity Savings & Loan Association of Port Arthur, Texas, defendant. Diamond began construction, but abandoned the contract before substantial completion. Plaintiffs then entered into a second mechanics' and materialmen's lien contract in the amount of $10,000.00 with John May, and in the home was completed. Defendant notified plaintiffs that it intended to foreclose its mechanics' and materialmen's lien and this suit was brought. The trial court filed findings of fact and conclusions of law. It found that there had not been substantial compliance by Diamond of its contract with plaintiffs, and that plaintiffs had incurred $2,005.49 expense in connection with this litigation, including their attorney's fees. The court also found that because there was no substantial performance by Diamond that defendant acquired no lien on plaintiffs' homestead. The judgment created an equitable lien in favor of defendant to secure the payment by plaintiffs to defendant of the sum of $2,994.51. This amount was arrived at by deducting from $16,000.00 the $1,000.00 cash payment made by plaintiffs to Diamond, the $10,000.00 representing the contract by plaintiffs with John May and $2,005.49 representing plaintiffs' expenses.\nDefendant's first point of error is that the trial court erred in allowing plaintiffs to recover the $2,005.49 for attorney's fee and other expenses. First, we think it is clear that defendant does not have a valid lien upon plaintiffs' homestead. Murphy v. Williams, 103 Tex. 155, 124 S.W. 900. The law of this state requires substantial performance of a mechanics' and materialmen's lien contract before such lien attaches to a homestead. This is true whether the person claiming the lien is the original contractor, or the contractor's assignee, as in this case. As stated by the Supreme Court in the Murphy v. Williams Case, supra, the assignee bought the note before the contract was performed, and the assignee's lien depended upon the performance either by the original contractor or the assignee of that which such contractor had undertaken to do to create or perfect the lien. In this case, upon abandonment by Diamond, defendant could have protected itself and established its lien by seeing that the contract was substantially completed. Plaintiffs entered into a contract with John May for $10,000.00 to complete their home, and this amount was approved by the trial court with no attack being made upon it. The statement is made in appellant's brief that it was stipulated that defendant advanced $10,400.00 in progress construction advances before abandonment by Diamond. However, after deducting the $1,000.00 paid by plaintiffs to Diamond and the $10,000.00 representing the contract price with John May, which has not been attacked, only $5,000.00 remains as a part of the original contract price. There is no provision under the law of this state for plaintiffs to be permitted *484 to recover the $2,005.49 for their expenses. Plaintiffs agree with defendant in the briefs that this is not the type of case in which recovery for attorney's fees is permitted under Art. 2226, Vernon's Ann. Civ.St. Defendant is entitled to a judgment against plaintiffs in the amount of $5,000.00 with no lien, equitable or otherwise, to secure it. A lien can exist upon a homestead only when created in accordance with the Constitution of this State. Art. 16, Sec. 50, Vernon's Ann.St. The Supreme Court made it clear in Murphy v. Williams, supra, that the contract for the building of a house at a stipulated price cannot be a split up so as to provide a lien for the contractor or his assignee, to secure a part of the price, when such contractor or assignee failed to substantially complete the house. Except as herein provided, all points of error are overruled.\nReformed and affirmed.\n",
"ocr": false,
"opinion_id": 2445603
}
] |
Court of Appeals of Texas
|
Court of Appeals of Texas
|
SA
|
Texas, TX
|
2,075,525 |
Schaefer
| 1967-11-30 | false |
skinner-v-anderson
|
Skinner
|
Skinner v. Anderson
|
Louise A. Skinner, Appellant, vs. John Vincent Anderson Et Al., Appellees
|
Steinbrecher & Narusis, of Crystal Lake, (Bernard V. Narusis, of counsel,) for appellant., Kell & Conerty, of Woodstock, (Vette E. Kell and Donald W. Truckenbrod, of counsel,) for appellees.
| null | null | null | null | null | null | null | null | null | null | 95 |
Published
| null |
<docketnumber id="b459-7" pgmap="459">
(No. 40558.
</docketnumber><br><parties id="b459-8" pgmap="459">
Louise A. Skinner, Appellant, vs. John Vincent Anderson et al., Appellees.
</parties><br><decisiondate id="b459-9" pgmap="459">
Opinion filed November 30, 1967.
</decisiondate><br><attorneys id="b460-6" pgmap="460">
Steinbrecher & Narusis, of Crystal Lake, (Bernard V. Narusis, of counsel,) for appellant.
</attorneys><br><attorneys id="b460-7" pgmap="460">
Kell & Conerty, of Woodstock, (Vette E. Kell and Donald W. Truckenbrod, of counsel,) for appellees.
</attorneys>
|
[
"231 N.E.2d 588",
"38 Ill. 2d 455"
] |
[
{
"author_str": "Schaefer",
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": null,
"author_id": 4251,
"opinion_text": "\n38 Ill.2d 455 (1967)\n231 N.E.2d 588\nLOUISE A. SKINNER, Appellant,\nv.\nJOHN VINCENT ANDERSON et al., Appellees.\nNo. 40558.\nSupreme Court of Illinois.\nOpinion filed November 30, 1967.\n*456 STEINBRECHER & NARUSIS, of Crystal Lake, (BERNARD V. NARUSIS, of counsel,) for appellant.\nKELL & CONERTY, of Woodstock, (VETTE E. KELL and DONALD W. TRUCKENBROD, of counsel,) for appellees.\nReversed and remanded.\nMr. JUSTICE SCHAEFER delivered the opinion of the court:\nThe issues in this case concern the construction and the validity of section 29 of the Limitations Act, which was added to that Act by amendment in 1963. (Ill. Rev. Stat. 1965, chap. 83, par. 24f.) The new section purports to immunize architects and contractors from liability upon causes of action that do not accrue within four years after the architects or contractors performed their services. On the authority of this section the circuit court of McHenry County dismissed a complaint against an architect, and the plaintiff has appealed directly to this court.\nSummarized, the complaint alleges: John Anderson, hereafter defendant, is a licensed architect who was hired in 1956 by Frank L. Alford to design and supervise the construction of his residence in the village of Lakewood. An ordinance of the village, as well as nationally recognized safety standards, require that ventilation be provided for rooms housing air conditioning machinery. The defendant *457 failed to provide ventilation, and because the air conditioning machinery room lacked ventilation, leaking refrigerant gas entered the adjoining boiler room, corroded the burners of the gas-fired boiler and caused the escape of toxic quantities of carbon monoxide and phosgene gases which, on September 19, 1965, caused the deaths of Robert Skinner, Jr., and his daughter, Nancy, and serious injury to his wife, Louise.\nLouise Skinner is the daughter of Frank L. Alford, and is the plaintiff in this case. As administratrix of the estates of Robert and Nancy Skinner, and on her own behalf, she brought this action jointly and severally against A. Ture Ekberg, the building contractor, Sherman Plumbing and Heating Inc., a service repairman, and the defendant. She seeks to recover damages resulting from her personal injuries and the wrongful deaths of her husband and daughter, and to recover their burial expenses. The defendant moved to dismiss the complaint because the injury and the deaths did not occur within four years after he had performed his services. On the authority of section 29 of the Limitations Act, the motion was granted. The trial judge has certified that there is no just reason to delay enforcement or appeal. Ill. Rev. Stat. 1965, chap. 110, par. 50(2).\nSection 29 provides: \"No action to recover damages for any injury to property, real or personal, or for injury to the person, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real estate, nor any action for contribution or indemnity for damages sustained on account of such injury, shall be brought against any person performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property, unless such cause of action shall have accrued within four years after the performance or furnishing of such services and construction. This limitation shall not be available to any owner, tenant or person in actual possession and control of the improvement *458 at the time such cause of action accrues.\" Ill. Rev. Stat. 1965, chap. 83, par. 24f.\nThe plaintiff contends that section 29, properly construed, does not apply to the wrongful death actions or to the actions to recover the funeral expenses of her husband and child. Section 12 of the Limitations Act provides: \"The following actions can only be commenced within the periods hereinafter prescribed, except when a different limitation is prescribed by statute:\" (Ill. Rev. Stat. 1965, chap. 83, par. 13.) Then follow the remaining sections of the Act, including section 29. Another statute, section 2 of the Injuries Act, provides that wrongful death actions shall be commenced within two years after death occurs (Ill. Rev. Stat. 1965, chap. 70, par. 2), and it is argued that by its terms the Limitations Act does not apply to such actions. We do not discuss the merits of the contentions raised as to the construction of the statute, because even if section 29 did not apply to the other causes of action asserted in the complaint, its validity would still have to be considered in connection with the plaintiff's action for her own injuries.\nAlthough section 29 was added to \"An Act in regard to limitations,\" the added section is not concerned with limitations in the ordinary sense. A statute of limitations normally governs the time within which a legal proceeding must be instituted after the cause of action accrues. There are instances in which a statute of limitations may bar an action before the party against whom the statute runs is aware that he has a right to sue. (See e.g., Ill. Rev. Stat. 1965, chap. 26, par. 2-725.) The provision in the case at bar, however, goes further, and bars a cause of action before it arises. But the plaintiff in this case has not argued that section 29 violates section 13 of article IV of the constitution, and we do not pursue the matter.\nThe plaintiff contends that section 29 violates section 19 of article II of the constitution of Illinois which provides: \"Every person ought to find a certain remedy in the *459 laws for all injuries and wrongs which he may receive in his person, property or reputation; * * *.\" She also contends that it violates sections 2 and 14 of article II of the constitution of Illinois, as well as section 22 of article IV of the constitution of Illinois and the equal-protection clause of the fourteenth amendment to the constitution of the United States.\nWe are of the opinion that section 29 violates section 22 of article IV of the constitution of Illinois, and we therefore express no opinion upon the other constitutional issues that the plaintiff has raised. Section 22 of article IV states: \"The general assembly shall not pass local or special laws in any of the following enumerated cases, that is to say: for * * * Granting to any corporation, association or individual any special or exclusive privilege, immunity or franchise whatever.\"\nThe effect of section 29 of the Limitations Act is to grant to architects and contractors a special or exclusive immunity. To justify it the defendant asserts that its \"purpose is to require the necessary litigation to be brought within a time when the circumstances can still be proven, when investigation is still possible, when facts are still assessable, when proofs are not lost, when memories are still fresh. In short, when a trial can still result in fair outcome for both parties.\" And he also argues that \"statutes are not unconstitutional as denying equal protection of the law merely because they affect one class and not another provided they affect all members of the same class alike.\"\nIf, as the defendant suggests, the objective of the statute is to require that trials of actions based upon defects in construction be held within a relatively short time after the work is completed, that objective is achieved only partially, and in a discriminatory fashion. If the damage or injury occurs at any time within four years after construction is completed, the time within which the action must be commenced is governed by other statutory limitations. In such *460 cases the time between completion of construction and the required institution of suit may well exceed four years.\nMore important is the fact that of all those whose negligence in connection with the construction of an improvement to real estate might result in damage to property or injury to person more than four years after construction is completed, the statute singles out the architect and the contractor, and grants them immunity. It is not at all inconceivable that the owner or person in control of such an improvement might be held liable for damage or injury that results from a defective condition for which the architect or contractor is in fact responsible. Not only is the owner or person in control given no immunity; the statute takes away his action for indemnity against the architect or contractor.\nThe arbitrary quality of the statute clearly appears when we consider that architects and contractors are not the only persons whose negligence in the construction of a building or other improvement may cause damage to property or injury to persons. If, for example, four years after a building is completed a cornice should fall because the adhesive used was defective, the manufacturer of the adhesive is granted no immunity. And so it is with all others who furnish materials used in constructing the improvement. But if the cornice fell because of defective design or construction for which an architect or contractor was responsible, immunity is granted. It can not be said that the one event is more likely than the other to occur within four years after construction is completed.\nOf course, section 22 of article IV does not prohibit legislative classification. It does, however, require that the classification be reasonably related to the legislative purpose. And where that relationship was nonexistent the statute has been held to contravene the constitutional provision. (See, e.g., Harvey v. Clyde Park District, 32 Ill.2d 60; Grasse v. Dealer's Transport Co., 412 Ill. 179; Marallis *461 v. City of Chicago, 349 Ill. 422.) That the statute benefits all architects and construction contractors is significant only if the benefits conferred upon them are not denied to others similarly situated. As this court held with respect to section 22 of article IV, \"That the statute operates uniformly upon all members of a class created as the beneficiaries of the act is not the sole test to be applied, but in order to avoid the constitutional inhibition last above quoted it must also appear that there is a sound basis, in reason and principle, for regarding the class of individuals as a distinct and separate class for the purpose of the particular legislation.\" Phillips v. Browne, 270 Ill. 450, 453.\nThe judgment of the circuit court of McHenry County is reversed, and the cause is remanded for further proceedings.\nReversed and remanded.\n",
"ocr": false,
"opinion_id": 2075525
}
] |
Illinois Supreme Court
|
Illinois Supreme Court
|
S
|
Illinois, IL
|
553,185 | null | 1990-12-13 | false |
charles-jacquin-et-cie-inc-appellantcross-appellee-v-destileria
| null | null |
Charles Jacquin Et Cie, Inc., Appellant/cross-Appellee v. Destileria Serralles, Inc., Crown Marketing International and Howrene Wine & Spirit Inc. Destileria Serralles, Inc. And Crown Marketing International, Appellees/cross-Appellants
| null | null | null | null | null | null | null | null | null | null | null | 43 |
Published
| null | null |
[
"921 F.2d 467"
] |
[
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": "http://bulk.resource.org/courts.gov/c/F2/921/921.F2d.467.90-1234.90-1213.html",
"author_id": null,
"opinion_text": "921 F.2d 467\n 17 U.S.P.Q.2d 1104\n CHARLES JACQUIN ET CIE, INC., Appellant/Cross-Appelleev.DESTILERIA SERRALLES, INC., Crown Marketing Internationaland Howrene Wine & Spirit Inc.Destileria Serralles, Inc. and Crown MarketingInternational, Appellees/Cross-Appellants.\n Nos. 90-1213, 90-1234.\n United States Court of Appeals,Third Circuit.\n Argued Aug. 31, 1990.Decided Dec. 13, 1990.\n \n 1\n Arthur H. Seidel, Stephen J. Meyers (argued), Nancy Rubner-Frandsen, Seidel, Gonda, Lavorgna & Monaco, Philadelphia, Pa., for appellant/cross appellee.\n \n \n 2\n Martin F. Savitzky, William H. Elliott, Jr., Synnestvedt & Lechner, Philadelphia, Pa., Albert Robin (argued), Robin, Blecker, Daley & Driscoll, New York City, for appellees/cross appellants.\n \n \n 3\n Before HUTCHINSON, NYGAARD and ROSENN, Circuit Judges\n \n OPINION OF THE COURT\n NYGAARD, Circuit Judge\n \n 4\n In this Lanham Act case, appellant Charles Jacquin Et Cie, Inc. (\"Jacquin\") alleged that Destileria Serralles, Inc. (\"DSI\") and Crown Marketing International (\"Crown\") infringed on its products' trade dress in violation of 15 U.S.C. Sec. 1125(a) and state common law. The district court directed a verdict in favor of DSI and Crown on Jacquin's compensatory and punitive damages claim 730 F.Supp. 662. The jury found that Jacquin's trade dress had acquired secondary meaning and that there was a likelihood of confusion with DSI's trade dress, and the district court crafted injunctive relief to protect Jacquin. Jacquin appeals the scope of that injunction and the district court's directed verdict on punitive damages. We will affirm in part and reverse and remand in part.I.\n \n \n 5\n Jacquin, a Pennsylvania corporation, produces alcoholic beverages, including cordials. DSI, a Puerto Rican corporation, produces rum and rum schnapps. Crown was a Florida partnership which distributed DSI's products in the continental United States. At the time of trial, Crown was no longer in business.1\n \n \n 6\n In 1968 Jacquin developed a bottle of a particular shape for its line of cordials. The bottle is 10 and 3/4 inches high, with a beveled or tapered bottom. Jacquin has consistently used this same shape of bottle for all the cordials in its line. Jacquin promotes its cordials through billboards, print ads, and other materials. The district court found that approximately 75 per cent of Jacquin's promotional materials include the bottle as part of the advertisement.\n \n \n 7\n In 1985, representatives of Peter Harvey Wines (\"PHW\") suggested to DSI that it produce a rum-based schnapps which PHW would market in the United States. The representatives of PHW suggested that the rum schnapps be sold in a bottle similar to the bottle used for Blackstone whiskey in Mexico. The Blackstone whiskey bottle has a beveled bottom. In 1986, DSI submitted a Blackstone whiskey bottle to Owens-Illinois, Inc., a bottle manufacturer, to use as a sample. DSI instructed Owens-Illinois to increase the height of the bottle to 10 inches and to make a few other minor adjustments.\n \n \n 8\n The bottle developed by Owens-Illinois became the bottle DSI uses for Don Juan rum schnapps in the United States. The Don Juan bottle is shorter than Jacquin's, and Jacquin's bottle has a longer neck. The Don Juan bottle has an eight sided cross-section while the Jacquin's bottle has a four sided cross-section. However, the Don Juan bottle has a similar appearance to the Jacquin's bottle when viewed from the front, primarily because both have beveled bottoms.\n \n \n 9\n In the fall of 1987, DSI sold 2,700 cases of Don Juan schnapps to Crown for distribution in the United States. Crown sold Don Juan in New York, Michigan, New Jersey, Massachusetts, Florida, Virginia, New Hampshire, Pennsylvania, Vermont and Maine. In February 1988, Jacquin sent a cease and desist letter to Crown, alleging that the Don Juan bottle infringed on Jacquin's distinctive trade dress. Later that year, DSI repurchased 1,421 unsold cases of Don Juan from Crown.\n \n \n 10\n Jacquin filed suit alleging that the Don Juan bottle infringed on its trade dress in violation of section 43(a) of the Lanham Act, 15 U.S.C. Sec. 1125(a)2, and common law. Jacquin sought compensatory and punitive damages, as well as injunctive relief. At trial and following Jacquin's case in chief, the district court directed a verdict for DSI on Jacquin's compensatory and punitive damage claims. The district court concluded that Jacquin had failed to demonstrate actual consumer confusion and thus compensatory damages under section 43(a) of the Lanham Act were inappropriate. On Jacquin's claim for punitive damages under Pennsylvania common law, the district court concluded that Jacquin's evidence that DSI had intentionally copied Jacquin's bottle was insufficient.\n \n \n 11\n On Jacquin's request for injunctive relief, the district court concluded that Jacquin could obtain injunctive relief if it demonstrated secondary meaning in its trade dress and a likelihood of consumer confusion. The district court denied DSI's motion for a directed verdict on this claim, holding that secondary meaning in the bottle design and a likelihood of consumer confusion were issues best left to the jury. After DSI presented its case, the jury was asked to answer two special interrogatories:\n \n \n 12\n 1) Has the shape of the plaintiff's bottle acquired secondary meaning?\n \n Yes No\n \n 13\n (If your answer to this question is \"yes,\" please go to the next question. If it is \"no,\" your deliberations are over; please return to the courtroom.)\n \n \n 14\n 2) Is defendants' bottle as it appears in the market-place likely to lead consumers to think that the defendant's product was produced by the plaintiff or some entity related to the plaintiff?\n \n Yes No\n \n 15\n The jury answered \"yes\" to both questions.\n \n \n 16\n In response to the parties' post-verdict motions, the district court considered whether it was bound by the jury's verdict, since the only claim remaining when the case went to the jury was for equitable relief. The court concluded that it would not have been bound, had it notified the parties that the jury would be advisory only. Since it did not notify the parties, the court decided that it was bound by the jury's verdict. Neither party contests this decision.\n \n \n 17\n The court then considered the extent of injunctive relief available to Jacquin. Although the jury found that Jacquin's bottle had acquired secondary meaning, it had not determined in which markets the bottle had acquired this status. The district court, after a thorough review of Jacquin's sales records, concluded that the bottle had acquired secondary meaning only in Pennsylvania, and issued an injunction prohibiting DSI from using its bottle for cordial or specialty beverages in Pennsylvania. Jacquin appeals.\n \n II.\n \n 18\n The first issue is whether the district court erred by directing a verdict in DSI's favor on the issue of punitive damages. Our review is plenary. A verdict may only be directed if, viewing the evidence in the light most favorable to the non-moving party, there is no issue of material fact and only the verdict directed would be correct under the governing law. Macleary v. Hines, 817 F.2d 1081, 1083 (3d Cir.1987).\n \n \n 19\n Jacquin's claim for punitive damages is governed by Pennsylvania law. Pennsylvania follows section 908(2) of the Restatement (Second) of Torts and allows punitive damages only for \"conduct that is outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others.\" Kirkbride v. Lisbon Contractors, Inc., 521 Pa. 97, 555 A.2d 800, 803 (1989) (quoting Restatement (Second) of Torts Sec. 908(2)). The district court found no evidence to support an award of punitive damages.3\n \n \n 20\n Jacquin conceded at oral argument before us that it had offered no direct evidence of DSI's outrageous conduct, evil motive or reckless indifference in designing its Don Juan bottle. Jacquin contends, nonetheless, that bad intent can be inferred from the striking similarity between its bottle and the Don Juan bottle, the prominence of Jacquin's bottle in the marketplace, and the fact that DSI continued to use the Don Juan bottle after Jacquin had notified it that the bottle might infringe Jacquin's trade dress.\n \n \n 21\n Assuming that covert copying of a non-trademarked package is outrageous conduct, there was simply no evidence that DSI willfully set out to copy Jacquin's bottle. The only testimony about the origin of the Don Juan bottle was elicited by Jacquin itself on direct examination--the unequivocal statements by Irwin Goldberg of Crown and Alberto Torruella of DSI that they used the Blackstone whiskey bottle as a model for DSI's rum schnapps bottle.4 Jacquin's bald assertion that its bottle design was so well known that DSI must have been intentionally copying does not make a prima facie case for punitive damages.\n \n \n 22\n Similarly, the fact that DSI continued to market Don Juan after receiving Jacquin's cease-and-desist letter does not support a finding of outrageousness. See e.g. Andy Warhol Enterprise, Inc. v. Time Inc., 700 F.Supp. 760, 766 (S.D.N.Y.1988) (continuing use of trademark after notification not sufficient for finding of bad faith). Jacquin's argues that continued use of a mark demonstrates the defendant's willfulness. We find this argument unpersuasive in a case where there is no registered mark, but only an asserted right to protection of a distinctive trade dress. Since there was no evidence of outrageous conduct or willful disregard for Jacquin's rights, the district court did not err by granting a directed verdict in favor of DSI.\n \n III.\n \n 23\n The district court fashioned an injunction to protect Jacquin's bottle in markets where it had established such market penetration that DSI's bottle would present a real likelihood of confusion among consumers. The court concluded that Jacquin only had significant market penetration in Pennsylvania. Jacquin argues that it was entitled to protection in other markets.\n \n \n 24\n We review the district court's injunction for abuse of discretion. A district court has abused its discretion if it has rested its decision on \"a clearly erroneous finding of fact, an errant conclusion of law, or an improper application of law to fact.\" International Union, UAW v. Mack Trucks, Inc., 820 F.2d 91, 95 (3d Cir.1987). Jacquin argues that, since a jury determined that secondary meaning and a likelihood of confusion existed in this case, we owe less deference to the district court. We disagree. Although the district court was bound by the jury's finding on likelihood of confusion, the special interrogatories did not direct the jury to consider specific markets. Rule 49(a) of the Federal Rules of Civil Procedure states that in a case decided by special verdict, if the district court fails to charge the jury on a fact issue raised by the pleadings or evidence the parties waive their right to a jury trial on that issue unless they object. In crafting injunctive relief, the district court properly supplied its own factual findings to supplement the jury's special verdict. Hence, when reviewing its execution of this task, we will only reverse the district court if it abused its discretion.\n \n \n 25\n The proper geographic scope of an injunction in a trademark infringement case is determined by examining the market penetration of the mark. An injunction is appropriate only if the market penetration is \"significant enough to pose the real likelihood of confusion among the consumers in that area.\"5 Natural Footwear Ltd. v. Hart, Schaffner & Marx, 760 F.2d 1383, 1397 (3d Cir.), cert. denied, 474 U.S. 920, 106 S.Ct. 249, 88 L.Ed.2d 257 (1985) (quoting Sweetarts v. Sunline, Inc., 380 F.2d 923, 929 (8th Cir.1967)). Market penetration of a trademark is determined by: \"(1) the volume of sales of the trademarked product; (2) growth trends (both positive and negative) in the area; (3) the number of persons actually purchasing the product in relation to the potential number of customers; and (4) the amount of product advertising in the area.\" Natural Footwear, 760 F.2d at 1398-99.\n \n \n 26\n We examine the market, as the district court did, by reference to state boundaries. Although state boundaries are not always appropriate delineators of markets, see Natural Footwear, 760 F.2d at 1398 n. 34, alcoholic beverages are distributed and regulated on a state-by-state basis, and state boundaries are uniquely proper for defining their markets. State markets are generally divided into \"control\" states, where the sale and distribution of alcohol is strictly regulated by the state, and \"open\" states, where state control is minimal. Jacquin sells its cordials in both \"open\" and \"control\" states.\n \n \n 27\n In Natural Footwear, we reviewed the market penetration of a New Jersey based clothing manufacturer. We determined that we need only consider market penetration in two states outside of New Jersey, since the clothing manufacturer had failed to establish sales above $5,000 per year or a total of over 50 customers for any one year in any other states. Jacquin argues that, since its sales of cordials exceeds $5,000 per year in Alabama, Delaware, Iowa, Maryland, New Hampshire, New Jersey, North Carolina, Rhode Island, Vermont, Virginia, West Virginia, its market penetration is more than de minimis and it is entitled to protection in those states. Jacquin misunderstands our holding in Natural Footwear. Surpassing the de minimis threshold did not result in automatic protection for the clothing manufacturer in Natural Footwear. In fact, we held that the market penetration in the two states surpassing the de minimis threshold was insufficient to warrant protection. Natural Footwear, 760 F.2d at 1403.\n \n \n 28\n Jacquin argues that it has also surpassed the threshold set out in Wrist-Rocket Manufacturing Co., Inc. v. Saunders Archery Co., 578 F.2d 727, 733 (8th Cir.1978). In Wrist-Rocket, the court set a ratio of one sale of the product in question per 20,000 persons as a threshold for establishing secondary meaning. Jacquin's efforts to treat these cases as establishing bright line tests is misguided. Whether a volume of sales is significant will vary with the product and the market. The numbers that result in injunctive relief in one case may not be significant in another.\n \n \n 29\n In determining that Jacquin had only established secondary meaning and likelihood of confusion in Pennsylvania, the district court relied primarily on the volume of sales prong of the Natural Footwear test. The district court summarized Jacquin's sales volume in the following chart:\n \n \n 30\n STATE JACQUIN SALES TOTAL SALES PERCENTAGE\nAlabama 371 67,622 5.4\nIowa 311 213,095 .14\nNew Hampshire 7,921 306,044 2.58\nNorth Carolina 2,971 175,680 1.69\nVermont 315 82,469 .38\nVirginia 12,112 225,034 .53\nWest Virginia 5,771 59,705 3.8\nPennsylvania 219,918 945,223 23.26\n \n \n \n The district court concluded from these numbers that, since Jacquin's sales were less than three percent in all but two areas other than Pennsylvania, Jacquin's had failed to demonstrate \"sufficient market penetration to warrant injunctive relief in any state but Pennsylvania.\" At 666.\n There are several mathematical errors in the calculation of percentages in the above table. The correct percentages for Alabama, Virginia, and West Virginia are .54, 5.38, and 9.66, respectively. The first error is of little consequence, since the correct percentage reveals sales even lower than the district court believed. The second two errors, however, are more troubling. The correct percentages for Virginia and West Virginia indicate that sales in those states may well support a finding of market penetration sufficient to establish secondary meaning. The district court's findings in this respect are incomplete, since it is unclear what share of the market other cordials makers commanded. A three percent share may seem small in absolute terms, but if no other maker has more than a few percent share, three percent may be significant.\n Since the district court crafted this injunction based on clearly erroneous fact findings, we will vacate the district court's injunction to the extent it limited protection to Pennsylvania. We will remand for the district court to make appropriate findings on Jacquin's market penetration in other states. We remand rather than conduct this analysis ourselves because it is not clear where the district court obtained some of the numbers it relied on. Jacquin submitted into evidence two annual reports of the National Alcoholic Beverage Control Association (\"NABCA\"), an industry group that compiles sales statistics for alcoholic beverages in several states. The sales summaries in those reports, however, do not correspond to the numbers in the chart the district court produced in its opinion.6 It may be that the numbers in the district court's opinion are the correct ones, but since we are unable to determine this from the record before us, we will remand.7\n IV.\n Jacquin challenges the district court's injunction because it limited protection of Jacquin's trade dress to \"cordials and specialties.\" Jacquin argues that protection should have been extended to the larger class of \"spirits,\" which would include whiskeys, rums, vodkas, and gins as well as brandies and liqueurs. The district court limited the injunction because Jacquin had failed to present any evidence that its trade dress had acquired secondary meaning within the distilled spirits market as a whole or that consumers of distilled spirits, as opposed to the subset of consumers of cordials and specialties, would likely be confused by DSI's trade dress. The district court noted that the evidence at trial concerned only Jacquin's cordials sales, and did not address the distilled spirits market as a whole.\n We stated the test for determining when an injunction should issue against infringing but non-competing products in Scott Paper Co. v. Scott's Liquid Gold, Inc., 589 F.2d 1225 (3d Cir.1978). Secondary meaning and likelihood of confusion are again the standards, but the analysis proceeds somewhat differently than when addressing geographic scope of protection. Makers of non-competing products may be enjoined from using a particular mark or trade dress where a consumer might assume that the non-competing product comes from the same source as the trademarked product. Ten factors should be considered in this regard: \"(1) the degree of similarity between the owner's mark and the alleged infringing mark; (2) the strength of the owner's mark; (3) the price of the goods and other factors indicative of the care and attention expected of consumers when making a purchase; (4) the length of time the defendant has used the mark without evidence of actual confusion arising; (5) the intent of the defendant in adopting the mark; (6) the evidence of actual confusion; (7) whether the goods, though not competing, are marked through the same channels of trade and advertised through the same media; (8) the extent to which the targets of the parties' sales efforts are the same; (9) the relationship of the goods in the minds of consumers because of the similarity of function; (10) other facts suggesting that the consuming public might expect the prior owner to manufacture a product in the defendant's market, or that he is likely to expand into that market.\" Interpace Corp. v. Lapp, Inc., 721 F.2d 460, 463 (3d Cir.1983) (citing Scott Paper, 589 F.2d at 1229).\n Applying this test to the evidence Jacquin introduced, we conclude that the district court properly limited this injunction to cordials and specialties. First, Jacquin's bottle and DSI's bottle are similar in outline, but the similarity of the bottle designs is lessened considerably when the bottles are viewed with their complete labeling. Jacquin only asserted secondary meaning in the shape of the bottle. In determining the secondary meaning and likelihood of confusion, however, we need to view the total package as a consumer would. As for the strength of Jacquin's trade dress, the district court found that it was prominent in only a few markets.8\n Jacquin presented no evidence to establish the third factor, the care with which consumers select cordials or distilled spirits. Indeed, Jacquin presented no consumer evidence whatsoever. It presented no consumer surveys to show consumer expectations or actual confusion, so likewise neither the fourth nor sixth factor favors Jacquin. The only evidence of DSI's intent in adopting its bottle shape was the testimony that the bottle was modeled on the Blackstone whiskey bottle.\n As to the seventh factor, there was evidence that, at least in the control states, all distilled spirits are marketed through the same channels and advertised similarly. Jacquin, however, has not demonstrated that the targets of its sales efforts for cordials are the same as any sales efforts DSI might direct toward consumers of other distilled spirits. Similarly, Jacquin introduced no surveys or other evidence showing that consumers would find that distilled spirits such as rum and vodka have a similar function as cordials. Finally, other facts indicate that consumers likely would not be confused by DSI using its bottle for rum or other distilled spirits. Jacquin does sell other distilled spirits, but does not package them in the same bottle as it uses for cordials. Evaluating all the factors of the Scott Paper test, we conclude that the district court did not abuse its discretion by limiting injunctive relief to cordials and specialties.\n V.\n DSI argues in its cross-appeal that the jury's findings of secondary meaning and likelihood of confusion should be vacated. DSI argues that the evidence presented to the jury was insufficient as a matter of law to support a finding of secondary meaning. DSI, however, failed to move for judgment n.o.v. after entry of the final verdict. Where a party has failed to move for j.n.o.v., we will not review the sufficiency of the evidence and direct a verdict for them. Woods v. National Life and Accident Ins. Co., 347 F.2d 760, 769 (3d Cir.1965); Anderson v. Haas, 341 F.2d 497, 502 (3d Cir.1965); 9 C. Wright & A. Miller, Federal Practice and Procedure Sec. 2540 (1971).\n DSI argues alternatively that the district court erred by refusing to instruct the jury on Jacquin's failure to conduct a consumer survey. Consumer surveys, in which a representative sample of the consumers of a product are presented with the parties' products in a controlled setting, are the most direct method of showing the likelihood of confusion created by an infringing defendant. Similarly, a plaintiff's failure to conduct such a survey where it has the financial resources to do so, could lead a jury to infer that the plaintiff believes the results of the survey will be unfavorable. Eagle Snacks, Inc. v. Nabisco Brands, Inc., 625 F.Supp. 571, 583 (D.N.J.1985).\n Nevertheless, we have not yet held that a consumer survey is mandatory to establish likelihood of confusion in a Lanham Act case and do not so hold in this case. While consumer surveys are useful, and indeed the most direct method of demonstrating secondary meaning and likelihood of confusion, they are not essential where, as here, other evidence exists. Accord Getty Petroleum Corp. v. Island Transp. Corp., 878 F.2d 650, 656 (2d Cir.1989); c.f. Yamaha Int'l Corp. v. Hoshino Gakki Co., Ltd., 840 F.2d 1572, 1583 (Fed.Cir.1988) (survey not necessary to show acquired distinctiveness under section 2(f) of the Lanham Act). Since a consumer survey was not necessary for Jacquin to prove its claim, the refusal of the district court to give the jury charge on failure to conduct a survey was not error.\n VI.\n We will affirm the district court's grant of a directed verdict in favor of DSI on the issue of punitive damages and its refusal to give DSI's requested instruction on consumer surveys. We will also affirm the district court's injunction to the extent that it limited protection to cordials and specialties, however, we will vacate and remand the portion of the injunction that limited protection to Pennsylvania for further proceedings in accordance with this opinion. Each side shall bear its own costs.\n \n \n 1\n A third defendant, Howrene Wine & Spirit Inc., settled with Jacquin and is not before us in this appeal\n \n \n 2\n Section 43(a) provides:\n Any person who shall affix, apply, or annex, or use in connection with any goods or services, or any container or containers for goods, a false designation of origin, or any false description or representation, including words or other symbols tending to falsely describe or represent the same, and shall cause such goods or services to enter into commerce ... shall be liable to a civil action ... by any person who believes that he is or is likely to be damaged by the use of any such false description or representation.\n This section has since been amended. See 15 U.S.C.A. Sec. 1125(a) (West supp.1990). Jacquin's Lanham Act claim alleged that DSI's packaging constituted a false designation of origin.\n \n \n 3\n The district court also concluded, based on a narrow reading of Kirkbride, that punitive damages were not available unless compensatory damages were awarded. Because we find insufficient evidence of outrageous conduct, we do not review this alternative ground\n \n \n 4\n This testimony was corroborated after the grant of the directed verdict by the testimony of Angel Paz of DSI and Dale Devore of Owens-Illinois. App. pp. 204, 174, 177\n \n \n 5\n Likelihood of confusion and secondary meaning are two closely related concepts that collapse into one another in trade dress cases. \"Secondary meaning exists when consumers seeing a trademark assume that the product it labels came from a particular source.\" Interpace Corp. v. Lapp, Inc., 721 F.2d 460, 462 (3d Cir.1983). Likelihood of confusion exists when two products are so similarly labelled or packaged that consumers are likely to be confused as to the source of the product. Necessarily, a package or mark must have acquired secondary meaning before likelihood of confusion can result. A consumer must recognize that a particularly packaged product comes from Source A before she can be confused by a similar package from Source B. Effectively, however, these concepts are \"difficult to distinguish in viewing the evidence.\" 1 J.T. McCarthy, Trademarks and Unfair Competition Sec. 15:3 (1984), Interpace, Corp., supra\n \n \n 6\n Apparently the district court relied on numbers supplied by Jacquin in its post-trial memorandum. Jacquin, however, has not included in this record the exhibit it submitted to the district court explaining how it calculated the numbers. Consequently, we cannot determine if Jacquin made some error, or relied on matters not in evidence, in calculating the totals\n \n \n 7\n Similarly, we can not determine why the district court did not credit the apparently uncontested testimony of Kevin O'Brien, Jacquin's vice-president in charge of national sales, on Jacquin's sales in the \"open\" states of New Jersey, Delaware, Maryland, and Rhode Island. App. p. 147. There may have been reason for the district court to discredit this testimony. On remand, the district court will have an opportunity to fully address this point\n \n \n 8\n Although we are remanding for additional findings on market penetration in some states, this is not inconsistent with our holding that Jacquin's trade dress was only established in some limited number of states\n \n \n ",
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"opinion_id": 553185
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] |
Third Circuit
|
Court of Appeals for the Third Circuit
|
F
|
USA, Federal
|
185,264 |
Rogers, Sentelle, Williams
| 2000-10-27 | false |
qwest-communications-international-inc-v-federal-communications
| null |
Qwest Communications International Inc. v. Federal Communications Commission
|
QWEST COMMUNICATIONS INTERNATIONAL INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. MCI WorldCom, Inc. and AT&T Corporation, Intervenors
|
William R. Richardson, Jr. argued the cause for petitioner. With him on the briefs were William T. Lake, Patrick J. Carome, Julie A. Veach, Dan L. Poole, and Robert B. McKenna., Lawrence E. Sarjeant, Linda Kent, John Hunter, Julie E. Rones, William F. Maher, Jr., Stephen L. Goodman, and Richard White, Jr. were on the brief for amicus curiae in support of petitioner., Joel Marcus, Counsel, Federal Communications Commission, argued the cause for respondents. With him on the brief were Christopher J. Wright, General Counsel, Daniel M. Armstrong, Associate General Counsel, Joel I. Klein, Assistant Attorney General, U.S. Department of Justice, Robert B. Nicholson, and Christopher Sprigman, Attorneys. John E. Ingle, Deputy Associate General Counsel, Federal Communications Commission, entered an appearance., Anthony C. Epstein argued the cause for intervenors WorldCom, Inc. and AT&T Corp. With him on the brief were Thomas F. O’Neil, III, William Single, IV, Mark C. Rosenblum, Peter H. Jacoby, Judy Sello, and David Lawson. James P. Young entered an appearance.
| null | null | null | null | null | null | null |
Argued Sept. 5, 2000.
| null | null | 3 |
Published
| null |
<parties id="b1230-3">
QWEST COMMUNICATIONS INTERNATIONAL INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. MCI WorldCom, Inc. and AT&T Corporation, Intervenors.
</parties><br><docketnumber id="b1230-7">
No. 99-1531.
</docketnumber><br><court id="b1230-8">
United States Court of Appeals, District of Columbia Circuit.
</court><br><otherdate id="b1230-9">
Argued Sept. 5, 2000.
</otherdate><br><decisiondate id="b1230-10">
Decided Oct. 27, 2000.
</decisiondate><br><attorneys id="b1230-19">
William R. Richardson, Jr. argued the cause for petitioner. With him on the briefs were William T. Lake, Patrick J. Carome, Julie A. Veach, Dan L. Poole, and Robert B. McKenna.
</attorneys><br><attorneys id="b1230-20">
Lawrence E. Sarjeant, Linda Kent, John Hunter, Julie E. Rones, William F. Maher, Jr., Stephen L. Goodman, and Richard White, Jr. were on the brief for amicus curiae in support of petitioner.
</attorneys><br><attorneys id="b1230-21">
Joel Marcus, Counsel, Federal Communications Commission, argued the cause for respondents. With him on the brief were Christopher J. Wright, General Counsel, Daniel M. Armstrong, Associate General Counsel, Joel I. Klein, Assistant Attorney General, U.S. Department of Justice, Robert B. Nicholson, and Christopher Sprigman, Attorneys. John E. Ingle, Deputy Associate General Counsel, Federal Communications Commission, entered an appearance.
</attorneys><br><attorneys id="b1231-3">
<span citation-index="1" class="star-pagination" label="1173">
*1173
</span>
Anthony C. Epstein argued the cause for intervenors WorldCom, Inc. and AT&T Corp. With him on the brief were Thomas F. O’Neil, III, William Single, IV, Mark C. Rosenblum, Peter H. Jacoby, Judy Sello, and David Lawson. James P. Young entered an appearance.
</attorneys><br><judges id="b1231-4">
Before: WILLIAMS, SENTELLE, and ROGERS, Circuit Judges.
</judges>
|
[
"229 F.3d 1172",
"343 U.S. App. D.C. 324"
] |
[
{
"author_str": "Rogers",
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": "http://www.cadc.uscourts.gov/internet/opinions.nsf/44918FDF22137E6B85256F1800661433/$file/99-1531a.txt",
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"opinion_text": "229 F.3d 1172 (D.C. Cir. 2000)\n Qwest Communications International Inc.,Petitionerv.Federal Communications Commission and United States of America, RespondentsMCI World Com, Inc. and AT&T Corporation, Intervenors\n No. 99-1531\n United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT\n Argued September 5, 2000Decided October 27, 2000\n \n On Petition for Review of an Order of the Federal Communications Commission\n William R. Richardson, Jr. argued the cause for petitioner. With him on the briefs were William T. Lake, Patrick J. Carome, Julie A. Veach, Dan L. Poole, and Robert B. McKenna.\n Lawrence E. Sarjeant, Linda Kent, John Hunter, Julie E. Rones, William F. Maher, Jr., Stephen L. Goodman, and Richard White, Jr. were on the brief for amicus curiae in support of petitioner.\n Joel Marcus, Counsel, Federal Communications Commission, argued the cause for respondents. With him on the brief were Christopher J. Wright, General Counsel, Daniel M. Armstrong, Associate General Counsel, Joel I. Klein, Assistant Attorney General, U.S. Department of Justice, Robert B. Nicholson, and Christopher Sprigman, Attorneys. John E. Ingle, Deputy Associate General Counsel, Federal Communications Commission, entered an appearance.\n Anthony C. Epstein argued the cause for intervenors World Com, Inc. and AT&T Corp. With him on the brief were Thomas F. O'Neil, III, William Single, IV, Mark C. Rosenblum, Peter H. Jacoby, Judy Sello, and David Lawson. James P. Young entered an appearance.\n Before: Williams, Sentelle, and Rogers, Circuit Judges.\n Opinion for the Court filed by Circuit Judge Rogers.\n Rogers, Circuit Judge:\n \n \n 1\n Qwest Communications International, Inc. (\"Qwest\") petitions for review of a decision by the Federal Communications Commission (\"Commission\") to disclose raw audit data to competitors in connection with a notice of inquiry concerning the validity and reasonableness of statistical sampling for equipment not found or not verifiable during a field audit.1 See In re Ameritech Corporation Telephone Operating Companies' Continuing Property Records Audit et al., Memorandum Opinion and Order, 15 F.C.C.R. 1784 (1999) (\"Order\"). Qwest contends that the Order is contrary to § 1905 of the Trade Secrets Act, 18 U.S.C. § 1905 (1994), because nothing in § 220(f) of the Communications Act of 1934, 47 U.S.C. § 220(f) (1994), authorizes the Commission to release otherwise protected information. Qwest further contends that the Commission's Order violates its own longstanding policy to provide special protection to audit information. We hold that § 220(f) provides sufficient authorization for disclosure of trade secrets, but that the Commission has failed to explain how its Order is consistent with its policy regarding the treatment of confidential information. Accordingly, we remand the case to the Commission for further proceedings.2\n \n I.\n \n 2\n Under Part 32 of the Commission's regulations, the Regional Bell Operating Companies (\"RBOCs\") are required to maintain detailed accounting records of property used in their local telephone operations, including the property's description, location, and cost. See 47 C.F.R. §§ 32.2000(e)-(f). The records, which serve various regulatory functions, including the setting of rates and the assessment of charge allocations, must conform to a uniform accounting system prescribed by the rules and must be sufficiently detailed to allow the property's physical existence to be confirmed during a spot check conducted by the Commission. See id.\n \n \n 3\n In 1997, the Commission's Common Carrier Bureau's Accounting Safeguards Division (\"Bureau\") began an audit of the RBOCs' records for hard-wired central office equipment in order \"to determine if their records were being maintained in compliance with the Commission's rules and to verify that property recorded in the accounts represented equipment used and useful for the provision of telecommunications services.\"3 During the audit, each piece of equipment was categorized or\"scored\" as \"(1) found [as described]; (2) found in another location; (3) not found/missing; or (4) unverifiable.\" The Commission explained that part of the audit included \"statistical sampling techniques so that the findings for the sample could be extended as representative of all of the equipment in the category audited, i.e., hard-wired central office equipment.\" After reviewing the RBOCs' comments on draft reports, the Bureau's final audit reports revealed that the RBOCs may have overstated their book costs by as much as five billion dollars.4 The RBOCs filed objections, in the words of one Commissioner, \"aggressively attack[ing] the audits, the competence of the auditors, and the credibility of the audit design.\"5 Qwest challenged the Bureau's final audit report, claiming that it failed to reflect additional data accounting for a majority of items scored as \"not found,\" and reaffirming its conclusion that the audit was fatally flawed for statistical and other reasons.6 In support of the latter point, Qwest submitted an analysis by Deloitte & Touche's \"quantitative techniques expert,\" who raised doubts about the auditors' sampling methodology and their evaluation techniques.\n \n \n 4\n The Commission, in turn, issued a notice of inquiry in April 1999, seeking public comment on ten criticisms relating to the audits. See In re Ameritech Corporation Telephone Operating Companies' Continuing Property Records Audit et al., Notice of Inquiry, 14 F.C.C.R. 7019, 7021-22 p 6 (1999) (\"NOI\"). The only issue relevant here is Issue 2: namely, \"[t]he validity and reasonableness of the methodology used by the Bureau's auditors in determining whether to rescore or to modify a finding during a field audit that equipment was 'not found.' \"7 Previously, in February 1999, the Commission determined, over the dissent of two Commissioners, that pursuant to the RBOCs' waivers of confidentiality, the release of the audit reports and the RBOCs' responses to them was in the public interest.8 MCI thereafter filed a Freedom of Information Act request, pursuant to 47 C.F.R. S 0.461, seeking public release of the RBOCs' explanations and supporting documentation regarding their equipment not found, the Bureau's audit work papers showing the scoring of particular items, and the continuing property records themselves.9\n \n \n 5\n Qwest opposed the release of the raw audit data on three principal grounds: First, releasing the requested information is barred by S 220(f) of the Communications Act and previous Commission rulings and would be an unjustified departure from the Commission's established practice of not releasing audit-related materials, except in exceptional cases; second, the requested information is confidential commercial information, voluntarily submitted, and thus exempt from release under Exemption 4 of the Freedom of Information Act, 5 U.S.C. S 552(b)(4); and third, the requested information constitutes pre-decisional deliberations and as such, is protected by Exemption 5 of the Freedom of Information Act, 5 U.S.C. S 552(b)(5), and S 0.457(e) of the Commission's rules, 47 C.F.R. S 0.457(e). Qwest indicated that it was opposing only the request for release of data submitted regarding the \"not found\" and \"unverifiable\" audit items, explaining that these items \"contain[ed] detailed information including pricing information on specific items used in the provision of telecommunications services....\" These items, in Qwest's view, were comprised of \"highly sensitive business information which MCI could use to unfairly improve its competitive position\" relative to Qwest and other market competitors.\n \n \n 6\n The Bureau ordered release of the requested raw audit data to parties under a protective order. The Bureau relied on §§ 154(j) and 220(f) of the Communications Act as providing the Commission with explicit authorization for the discretionary release of audit materials otherwise protected from release under the Freedom of Information Act and the Trade Secrets Act. Relying also on \"the Commission's duty to ensure that parties are given a reasonable opportunity to make informed comment on Issue No. 2,\" the Bureau viewed \"the unique situation\" created by the question posed in Issue 2 to require the release of information that is \"not routinely made available to the public, even under protective orders.\"The Bureau concluded that the question regarding the \"auditors' rescoring process can only be answered by allowing parties interested in filing comments to review this [raw data] material.\" The Bureau's protective order limited access to the requested materials to (1) counsel for a party participating in the NOI proceeding and (2) technical advisors or other persons authorized by such counsel. In the Bureau's opinion, the protective order \"reasonably ameliorated\" any potential competitive harm to the RBOCs. All of the RBOCs except Bell Atlantic appealed to the Commission.\n \n \n 7\n The Commission affirmed the Bureau's decision to release the raw audit data subject to a protective order, relying principally on the Commission's explicit authority under § 220(f): \"[G]iven the importance of Commission audits to the effective performance of the Commission's statutory responsibilities with respect to carriers, [the Commission] believe[s] the [Communications] Act's statutory scheme fully envisions that, in some cases, disclosures of carrier-supplied audit information might become necessary in the course of carrying out the Commission's enforcement and regulatory policymaking functions.\"10 Order, 15 F.C.C.R. at 1789 p 8.The Commission also imposed \"more stringent\" terms for access to audit materials, modifying the protective order (1) to restrict access to the audit materials to \"persons without decision making authority or influence regarding competitive issues,\" (2) to redact \"vendor-specific pricing information,\" and (3) to limit the materials to be released to those relating to Issue 2.11 Id. at 1790-91 p p 13-14. The Commission also provided that the RBOCs could suggest, for Bureau approval, other redactions to the auditors' work papers and the RBOCs' comments. Qwest petitioned for review of the Order.12\n \n II.\n \n 8\n Qwest contends that the Commission's decision to release protected confidential information violates the Trade Secrets Act because the Commission is not \"authorized by law\" to disclose otherwise protected information. Section 220(f) of the Communications Act, Qwest maintains, is \"a non-disclosure statute that itself prohibits agency employees from releasing information obtained during audits....\" Because § 220(f) is \"wholly silent as to the power of the Commission to issue [ ] directions\" for release of such material, Qwest continues, the statute's \"logic and purposes reflect no [Congressional] intention to authorize the Commission to disclose confidential information based solely on the exercise of its own unbounded 'discretion.' \"\n \n \n 9\n The parties agree that the material ordered disclosed by the Commission is covered by the Trade Secrets Act. Hence, the question is whether the Communications Act vests the Commission with authority to disclose information covered by the Trade Secrets Act, or more specifically, whether, for purposes of § 1905 of the Trade Secrets Act, the Commission was authorized under § 220(f) of the Communications Act to allow Qwest's competitors access to Qwest's raw audit data.\n \n \n 10\n The parties disagree about our standard of review. We agree with the Commission that our principal inquiry of the meaning of § 220(f) follows the familiar two-part test under Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 842-43 (1984):The court \"must give effect to the unambiguously expressed intent of Congress\" or in the absence of such intent, consider whether the agency's interpretation is a \"permissible construction of the statute.\" Id. at 843. Necessarily, however, we must first examine what Congress intended by § 1905 of the Trade Secrets Act, and in this regard, as Qwest contends, our review is de novo. Hence, we look first to the language of § 1905 and seek guidance from its structure and history. See Chrysler v. Brown, 441 U.S. 281, 296 (1979). We then do much the same in examining § 220(f) of the Communications Act, reaching the Commission's interpretation of its enabling statute only if Congressional intent is unclear.\n \n \n 11\n Section 1905 of the Trade Secrets Act prohibits the unauthorized release of trade secrets and commercial information, unless \"authorized by law,\" subject to punishment by fine and imprisonment and removal from office or employment. See 18 U.S.C. § 1905.13 The history of the Act, which was originally enacted in 1864, traces back to Congressional concern over disclosures of business information by \"feckless or corrupt revenue agents.\" Chrysler, 441 U.S. at 296. When Congress in 1948 consolidated three statutes barring or limiting the release of such information, it sought to address the demands of the new administrative state and thereby broadened the reach of the Trade Secrets Act. See CNA Fin. Corp. v. Donovan, 830 F.2d 1132, 1149 n.122 (D.C. Cir. 1987).As the court has previously recounted, Congress \"recogni[zed] that increased governmental access to financial records and commercial operations of individuals and entities ... had to be accompanied by some restraint on the freedom of governmental employees to disseminate such data to third parties.\" Id.\n \n \n 12\n The limits established by the Trade Secrets Act, however, are not inconsistent with authorizations granted to federal agencies to release data when necessary for the carrying out of the agencies' statutory responsibilities. In National Parks and Conservation Ass'n v. Kleppe, 547 F.2d 673 (D.C. Cir. 1976), the court noted that the Trade Secrets Act is \"merely a general prohibition against unauthorized disclosures of confidential commercial or financial information.\" Id. at 687 n.50.The court in CNA, continuing to explore the nature of the statute, observed that the Trade Secrets Act:\n \n \n 13\n seems to embody a congressional judgment that private commercial and financial information should not be revealed by agencies that gather it, absent a conscious choice in favor of disclosure by someone with power to impart the force of law to that decision. The Act at-tempts to forestall casual or thoughtless divulgence--disclosure made without first going through a deliberative process--with an opportunity for input from concerned parties.\n \n \n 14\n CNA, 830 F.2d at 1141 (emphasis added).\n \n \n 15\n In the leading case on the question of the authorization required by § 1905 for release of trade secrets, the Supreme Court interpreted the phrase \"authorized by law\" not to have \"a special, limited meaning.\" Chrysler, 441 U.S. at 298.Instead, the Supreme Court instructed that the exercise by an agency of quasi-legislative power \"must be rooted in a grant of such power by the Congress and subject to limitations which that body imposes.\" Id. at 302. More directly, the Court stated that \"[w]hat is important\" is whether the reviewing court could reasonably conclude that the statutory grant of authority contemplated the regulations providing for release of information. Id. at 308. Thus, in rejecting the contention that an Executive Order directing the Secretary of Labor to adopt regulations as are \"necessary and appropriate\" meant that all regulations so promulgated have the full \"force and effect of law,\" the Court focused on whether there was a \"nexus between the regulations and some delegation of the requisite legislative authority by Congress.\" Id. at 304.Looking at the statutory sources for the Executive Order,14 the Court concluded that \"it is clear that when it enacted these statutes, Congress was not concerned with public disclosure of trade secrets or confidential business information....\" Id. at 306. By way of illustration, the Court contrasted the situation in NBC v. United States, 319 U.S. 190, 217 (1943), where, based on the language and logic of the Communications Act, which vested comprehensive powers in the Commission, the Court upheld Commission regulations that extended beyond technical, engineering requirements. See Chrysler, 441 U.S. at 308.A mere housekeeping statute, on the other hand, whose history indicated that it was \"simply a grant of authority to the agency to regulate its own affairs,\" would not suffice to authorize disclosure of confidential business information because it was not intended to provide authority for limiting the scope of the Trade Secrets Act. Id. at 309.\n \n \n 16\n Under § 220(a) of the Communications Act, the Commission is authorized to direct the kind of financial books and records that carriers must maintain so that the Commission can fulfill its mandate of ensuring that carriers' rates and practices are just and reasonable. See 47 U.S.C. § 220(a).In establishing a uniform system of accounts, the Commission is charged with \"ensur[ing] a proper allocation of all costs to and among telecommunication services, facilities, and products....\" Id. § 220(a)(2). Under § 220(c), the Commission \"shall at all times have access to and the right of inspection and examination of all accounts, records, and memoranda\" maintained by the carrier pursuant to § 220. In addition, the Commission may use public accounting services. In this connection, subsection (c) provides an exception to non-disclosure laws as well as a non-disclosure limitation on persons having access to information submitted to the Commission. Subsection (c) provides that \"[a]ny provision of law prohibiting the disclosure of the contents of messages or communications shall not be deemed to prohibit the disclosure of any matter in accordance with the provisions of this section.\" Id. § 220(c). The statute further provides that any person conducting a Commission audit shall have the powers of the Commission under subsection (c) and shall be subject to subsection (f) \"in the same manner as if that person were an employee of the Commission.\" Id.15 Section 220(f), in turn, provides:\n \n \n 17\n No member, officer, or employee of the Commission shall divulge any fact or information which may come to his [or her] knowledge during the course of examination of books or other accounts, as hereinbefore provided, exceptin so far as he [or she] may be directed by the Commissionor by a court.\n \n \n 18\n Id. § 220(f) (emphasis added).\n \n \n 19\n Subsection (f), first mentioned in § 220(c) after a sentence that removes any legal obstacles to the disclosure of information submitted to the Commission in accordance with § 220, places non-disclosure burdens on all persons having access to confidential information submitted to the Commission. Thus, its strict limitation on how confidential information is to be handled arises in a context in which the Commission will have access to information that is otherwise protected by law from disclosure. Nevertheless, Congress alluded to the possibility of disclosure by the Commission (and the court). Qwest's contention that § 220(f) is \"an integral part of a non-disclosure statute\" is correct so far as it goes. However, viewing § 220(f) as directed to non-disclosure does not mean that its last clause has no role to perform, much less nothing to do with the conditions under which disclosures may occur. Under Chrysler, § 1905 is satisfied without a provision of law that expressly refers to trade secrets. See Chrysler, 441 U.S. at 308.\n \n \n 20\n Congressional intent to allow an exception to non-disclosure seems implicit in the statutory scheme. In the Communications Act of 1934, Congress delegated broad authority to the Commission in carrying out its responsibilities for oversight of licensing, rate making, and carrier practices. See 47 U.S.C. § 151 et seq.; NBC, 319 U.S.at 217-20. Significantly, in § 220, Congress placed in the Commission the responsibility to \"ensure a proper allocation of all costs.\" 47 U.S.C. § 220(a)(2). With the additional provisions authorizing audits, it reasonably follows that Congress contemplated that the Commission would be reviewing the type of data at issue here. Thus, unlike the statutes that were considered by the Supreme Court in Chrysler, see 441 U.S. at 304-09, § 220 focuses on the need for the Commission to have access to confidential information regarding licensees and others, and to determine how such information is to be protected when the Commission carries out its responsibilities. The former is addressed in § 220(c), the latter in § 220(f). When Congress consolidated various statutes on trade secrets in 1948, it gave no indication that federal agencies' interpretation of their authority to release confidential data was in error, much less no longer of force and effect.16 Nothing in Chrysler suggests that a comparable situation existed with respect to the statutes considered in that case. See Chrysler, 441 U.S. at 308.\n \n \n 21\n To the extent Qwest contends that § 220(f) is too broad an authorization, in its view leaving the Commission with unfettered discretion, we offer two responses. First, contrary to Qwest's contention, Chrysler does not require that the statutory authorization under § 1905 be directed, or limited, to trade secrets.17 Rather, as the Supreme Court emphasized in Chrysler, the important question is whether the reviewing court can reasonably conclude that the grant of authority contemplates the regulations issued. See Chrysler, 441 U.S. at 308. Chrysler's test is, in one sense at least, a non-demanding one with respect to the purpose of the Trade Secrets Act--namely, to ensure that Congress has authorized release of covered information and that any such release occurs only after deliberation by appropriate officials. See CNA, 830 F.2d at 1141-42. Section 220(f) is consistent with the restraint that Congress sought to impose in the Trade Secrets Act because it permits release only on order of the Commission (or the court) where, as the Supreme Court noted, such release would be consistent with the purposes of the Communications Act. See Chrysler, 441 U.S. at 307-08.As we discuss in Part III, the Commission has adopted a Confidential Information Policy and regulations for release decisions to be made upon consideration of certain factors by appropriate officials.\n \n \n 22\n Second, other circuits have concluded that, under Chrysler, a broadly stated grant of authority to disclose confidential information suffices for purposes of § 1905. Thus, the Fourth Circuit in Humana, Inc. v. Blue Cross, 622 F.2d 76 (4th Cir. 1980), upheld the Secretary of Health, Education, and Welfare's \"broad discretion to permit disclosure\" where the statute, 42 U.S.C. § 1306(a), provided that \"[n]o disclosure ... shall be made except as the Secretary ... may by regulations prescribe ....\" Id. at 78 (emphasis added).Relying on Chrysler's test, that \"[t]he grant of authority relied upon by a federal agency in promulgating regulations need not be specific; it is only necessary 'that the reviewing court reasonably be able to conclude that the grant of authority contemplates the regulations issued,' \" id. (quoting Chrysler, 441 U.S. at 308), the court concluded with respect to the disclosure of cost reports, that \"absent any action by the Secretary, disclosure would be prohibited. Such material, however, is not exemptfrom disclosure for by its very terms the statute contemplates the issuance of regulations by the Secretary permitting such disclosure.\" Id. at 79. In St. Mary's Hospital, Inc. v. Harris, 604 F.2d 407 (5th Cir. 1979), the Fifth Circuit had reached the same conclusion about a regulation authorizing disclosure of cost reports, stating that \"[s]ection 1306 bars the disclosure of Medicare providers' costs reports unless the Secretary in his discretion promulgates a regulation like [the one being challenged] ordering disclosure of these reports.... At the very least § 1306 may reasonably be construed to contemplate the promulgation of [a regulation such as is at issue].\" Id. at 410. The Sixth Circuit agreed in Parkridge Hospital, Inc. v. Califano, 625 F.2d 719 (6th Cir. 1980), interpreting the statute to be \"a broad grant of authority to the Secretary specifically to enact regulations providing for the release of information filed with the agency, at least when such disclosure serves the purposes described in the statute.\" Id. at 724.\n \n \n 23\n While Qwest would distinguish the statute in Humana, Parkridge, and St. Mary's as reflecting Congress' clear intent to permit disclosure of trade secrets, the effect of the last clause of § 220(f) of the Communications Act is essentially the same. That is, in both types of statutes Congress has alluded in an \"except\" clause to the possibility of disclosure of protected information, and in both circumstances assured that the Secretary and the Commission must reach a considered determination about releasing protected information. The different statutory treatment by Congress can be said to reflect not a difference in congressional intent but the fact that the Secretary is an individual decision-maker, and by requiring the promulgation of regulations, Congress constrained the Secretary's decision-making authority regarding the release of protected information. Comparable constraint inheres in the statutory requirements that the Commission may act only as a deliberative body, when there is a quorum, when parties may be heard, and when its actions are made on the record. See generally 47 U.S.C. §§ 154(h), (j).\n \n \n 24\n Accordingly, we hold that the Communications Act, and specifically, § 220(f), does not clearly rule out the Commission's interpretation, which we find reasonable.\n \n III.\n \n 25\n The question remains whether the Commission has acted arbitrarily and capriciously in ordering the release of Qwest's raw audit data to some of its competitors.18 See Chrysler, 441 U.S. at 318; Bartholdi, 114 F.3d at 279. Qwest contends that the release order is \"flatly inconsistent\" with the Commission's prior assurance that raw audit data would be protected. More particularly, Qwest contends that the Commission's Order is contrary to its precedents on the treatment of confidential information.19 Qwest calls attention to the unprecedented nature of the release, maintaining that \"whatever authority the Commission may have to disclose trade secrets in other kinds of proceedings in order to vindicate rights to public participation, the logic and purposes of the statutory provisions governing confidential agency audits are quite different.\" The Order constitutes, in Qwest's view, a \"standardless 'discretionary' exemption from disclosure\" justified solely on the Commission's unprecedented step of opening audits to public comment.\n \n \n 26\n The Commission's Confidential Information Policy includes three paragraphs regarding audits that are pertinent here. See In re Examination of Current Policy Concerning the Treatment of Confidential Information Submitted to the Commission, Report and Order, 13 F.C.C.R. 24816, 24847-49 p p 53-55 (1998), amended by 14 F.C.C.R. 20128 (1999) (\"Confidential Information Policy\"). Paragraph 53 provides that only summary audit data will be released, and only under special circumstances. See id. at 24847-48 p 53. Those special circumstances arise when: \"(i) the summary nature of the data therein is not likely to cause the submitter substantial competitive injury; (ii) the release of the summary data and information is not likely to impair [the Commission's] ability to obtain information in future audits; and (iii) overriding public interest concerns favor release of the report.\" Id.\n \n \n 27\n Paragraph 54 explains the Commission's view of audit reports:\n \n \n 28\n The Commission has a longstanding policy of treating information obtained from carriers during audits as confidential.... Carriers have a legitimate interest in protecting confidential information, and we agree that disclosure could result in competitive injury to those who provide such information to the Commission. This policy is also designed to enhance the efficiency and integrity of our audit process by encouraging carriers to comply in good faith with Commission requests for information. Moreover, the Commission considers the audit reports to be internal agency documents that, consistent with FOIA Exemption 5, generally should not be disclosed to the extent they present staff findings and recommendations to assist the Commission in pre-decisional deliberations.\n \n \n 29\n Id. at 24848 p 54. Paragraph 54 also states that the Commission \"will amend Section 0.457 of [its] rules to indicate that information submitted in connection with audits ... will not routinely be made available for public inspection.\" Id.\n \n \n 30\n In paragraph 55, the Commission identified the standards that it would apply were confidential audit information to be released. Observing that it has \"only rarely departed from the general policy of withholding audit information from public disclosure,\" the Commission advised nonetheless that,\n \n \n 31\n [p]arties should note, however, that as in the past, we may publicly disclose audit information in rare cases where the underlying concerns that normally lead us to withhold audit information from public disclosure are diminished by the minimal risk posed by the release of aggregate data or, where the data is otherwise not highly commercially sensitive and disclosure is justified by significant public interest factors.\n \n \n 32\n Id. at 24848-49 p 55 (emphasis added). Thus, S 0.457 of the Commission's regulations provides, in part, that \"[t]he records in this section are not routinely available for public inspection,\" 47 C.F.R. S 0.457, and in subsection (d) that \"[t]rade secrets ... are not routinely available for public inspection.... A persuasive showing as to the reasons for inspection will be required in requests for inspection of such materials submitted under S 0.461.\" Id. S 0.457(d).\n \n \n 33\n Numerous cases reflect the Commission's application of Paragraphs 53 and 54 of its Confidential Information Policy and S 0.457 of its regulations.20 None Qwest maintains, until now, involved the release, pursuant to Paragraph 55, to a competitor of raw audit data in an audit or audit-related proceeding. In applying its Confidential Information Policy, the Commission has heretofore acknowledged a distinction between summary audit data and raw audit data:\n \n \n 34\n [T]he release of commercial and financial information of only a summary nature does not present the concerns about competitive harm that normally lead us to withhold audit-derived information from public disclosure....The Summary contains no detailed underlying commercial or financial information submitted by the BOCs; rather it presents a brief analysis of the aggregated underlying data. The summary nature of this information significantly diminishes the likelihood that the BOCs will suffer any competitive harm.\n \n \n 35\n In re Bell Telephone Operating Companies, Memorandum Opinion and Order, 10 F.C.C.R. 11541, 11542 p 6 (1995).\n \n \n 36\n Thus, the Commission has explained that it \"withholds ... raw financial data obtained from carriers during audits as well as audit work papers compiled by Commission staff\" in accord with its \"general policy [ ] to withhold from public disclosure audit reports prepared by Commission staff.\" In Re GTE Telephone Operating Companies, Memorandum Opinion and Order, 9 F.C.C.R. 2588, 2588 p 4 (1994). See also BellSouth, 8 F.C.C.R. at 8129 p 8. \"[A]udit reports [that] contain substantial raw data and other information provided by various [Local Exchange Carriers] that has not been summarized, reformatted, or otherwise edited,\" the Commission has explained, \"[are] not routinely available for inspection.\" Platt, 5 F.C.C.R. at 5742 p 6. The Commission's view has been that the release of raw audit data \"would likely impair the Commission's ability to obtain necessary information in the future.\" Rafferty, 5 F.C.C.R. at 4138 p 2. Where the Commission has ordered the release of confidential financial information even if there is the possibility of competitive harm as a result, the occasions appear to have been confined to an adjudication, rulemaking, or a rate proceeding in which a party has placed its financial condition at issue.21\n \n \n 37\n Qwest and amicus United States Telecom Association point out that audits \"are not voluntary, afford no statutory right of public participation, and have historically involved\" only the Commission and the entity being audited. Consistent with these concerns, the Commission, has applied its Confidential Information Policy strictly, allowing exceptions in audits and related proceedings only for release of summaries of audit data that do not reveal \"competitively sensitive materials.\"Confidential Information Policy, 13 F.C.C.R. at 24824 p 9.While the Commission states that its Order establishes no \"precedent that compromises the integrity of the audit process,\" Order, 15 F.C.C.R. at 1790 p 11, the Commission's rulings, regulations, and Confidential Information Policy reflect a different approach. As applied by the Commission, the exceptional circumstances considered in the Confidential Information Policy for audits and in Commission rulings appear to have been confined to release of summary audit data.\n \n \n 38\n Still, the unprecedented nature of the Commission's Order does not itself demonstrate arbitrariness. See Capital Network Sys., Inc. v. FCC, 28 F.3d 201, 204-06 (D.C. Cir. 1994).But, in view of the policy by which the Commission has constrained the exercise of its discretion under S 220(f), its decision to release Qwest's raw audit data to its competitors likely would be arbitrary and capricious if the Commission failed to explain how it reached the conclusions that (1) the raw audit data is \"otherwise not highly commercially sensitive,\" and (2) \"disclosure is justified by significant public interest factors.\" Confidential Information Policy, 13 F.C.C.R at 24849 p 55. See also 47 C.F.R. S 0.457(d).\n \n \n 39\n In addressing Qwest's claims of harm, the Commission determined that its protective order, as amended, would ensure that any competitive harm is minimal. See Order, 15 F.C.C.R. at 1790 p 12. This reasoning followed, the Commission concluded, because disclosure was for the limited purpose of responding to Issue 2 as to sampled items not found, unidentified, or found in another location. See id. This is not the same as finding that Qwest's raw data is \"otherwise not highly commercially sensitive,\" or a finding that release of the data would not adversely affect Qwest's competitive position. Confidential Information Policy, 13 F.C.C.R. at 24849 p 55.Indeed, the Commission appears to acknowledge that the data is commercially sensitive, rationalizing release on the ground that the protective order ensures against competitive harm or ensures that such harm would be minimal.\n \n \n 40\n In concluding that the public interest outweighs any potential competitive harm to the RBOCs, the Commission observed that the RBOCs raised issues that the auditors' rescoring was not done correctly, and that the previously released summaries of the auditors' general procedures were insufficient to elicit useful information, which the Commission defined in terms of being able to comment on how the auditors' general procedures were actually implemented. See Order, 15 F.C.C.R. at 1789 p 9. Observing that it has \"rarely, if ever, sought public comment on its auditors' methodology and findings,\" the Commission stated that it \"was sufficiently concerned about the issues surrounding the audits to invite public comment,\" and that broader comment \"will greatly assist\" the Commission in resolving the issues. Id. at 1790 p 11. Advising on appeal that the focus of Issue 2 involving audit methodology is unprecedented, the Commission repeats that \"unusual events call for an atypical response.\"\n \n \n 41\n Missing from the Commission's decision is a discussion of why such an unprecedented release of confidential audit information is required for purposes of Issue 2. The Commission stated that \"useful information about the accuracy and validity of the audits\" could not be obtained \"unless commenters were allowed to examine how those general procedures were actually implemented when the auditors decided whether rescoring was appropriate.\" Id. at 1789 p 9.But it is unclear why this is so. The Deloitte & Touche analysis submitted by Qwest, for example, appears to suggest that the sampling methodology could be evaluated in theoretical terms as applied to hypothetical situations or to a composite of raw data without identifying an individual RBOC's sensitive commercial information. Other ways of avoiding the release of raw audit data to competitors might be equally effective for the Commission's purposes. Or, at least on the basis of the record, the court cannot tell that other ways would not be equally effective. Before invoking its \"rare case\" exception to its non-disclosure policy, the Commission must consider plausible alternatives and discount them before resorting to the release of raw audit data. Otherwise, Qwest's claim that the Order represents a standardless exemption from the Commission's policy and precedent gains force. Aresponse that the protective order adequately protects Qwest against competitive injury misses the mark. The Commission must explain why only the release of raw audit data will achieve meaningful public comment. In submitting audit data, Qwest was entitled to rely on the Commission's announced policy and precedent on how it would handle confidential audit information. Qwest is similarly entitled to assurances that the unprecedented disclosures will be consistent with the standards that the Commission has set for itself and that the invocation of the \"rare case\" exception under Paragraph 55 is warranted. See Motor Vehicles Mfrs. Ass'n v. State Farm Auto. Ins. Co., 463 U.S. 29, 43 (1983).\n \n \n 42\n Accordingly, we deny the petition in part, and we remand the case to the Commission for further consideration.\n \n \n \n Notes:\n \n \n 1\n U S West Communications, Inc., which filed the petition for review, is a wholly-owned subsidiary of U S West, Inc. During the pendency of this appeal, U S West, Inc. merged and became Qwest Communications International, Inc. Accordingly, we refer to Qwest as the petitioner.\n \n \n 2\n In view of our disposition of the Commission's reliance on § 220(f), we do not address the Commission's reliance on § 154(j), 47 U.S.C. § 154(j) (1994). See Order, 15 F.C.C.R. at 1788 p 8 & n.23.\n \n \n 3\n The seven RBOCs were Ameritech, Bell Atlantic, BellSouth, NYNEX, Pacific Bell, Southwestern Bell, and U S West Telephone Companies. See Public Notice, The Accounting Safeguards Division Releases Information Concerning Audit Procedures for Considering Requests by the Regional Bell Operating Companies To Reclassify or \"Rescore\" Field Audit Findings of Their Continuing Property Records, 14 F.C.C.R. 6243, 6243 (1999). The hard-wired central office equipment constitutes approximately one-fourth of the RBOCs' total capital investment. See Press Release, FCC Releases Audit Reports on RBOCs' Property Records, Feb. 25, 1999 (\"FCC Press Release\").\n \n \n 4\n See FCC Press Release. The audit indicated \"that approximately 11 percent of the [RBOCs'] equipment could not be found, and approximately 14 percent was either unverifiable or found in another location.\" Order, 15 F.C.C.R. at 1786 p 3.\n \n \n 5\n In re U S West Telephone Operating Companies' Continuing Property Records Audit, Order, 14 F.C.C.R. 5731, 5827 (1999) (Commissioner Tristani, issuing separate statement).\n \n \n 6\n Qwest's individualized audit report indicated that of the 1188 hard-wired equipment-item records randomly sampled and \"scored\" for the audit, 294 (24.7% of the sampled items) \"contained substantive deficiencies and did not comply with the Commission's rules.\"Id. at 5736 p 3. See also id. at 5743 p 21. Of the 294 deficient records, 152 (12.79% of the sampled items) described equipment that could not be verified against the record; 123 (10.35% of the sampled items) described equipment that could not be found; and 19 (1.60% of the sampled items) described equipment that could only partially be located. See id.\n \n \n 7\n NOI, 14 F.C.C.R. at 7021 p 6. Commissioner Furchtgott-Roth indicated apparent agreement with some of the RBOCs' criticisms of the audit's methodology, process, and overall conclusions. See In re U S West Telephone Operating Companies' Continuing Property Records Audit, Order, 14 F.C.C.R. at 5832-35 (Commissioner Furchtgott-Roth, dissenting in part).\n \n \n 8\n See FCC Press Release.\n \n \n 9\n MCI sought the release of three types of information:\n any materials that the RBOCs have submitted to the [Bureau] to explain why hard-wired [central office] equipment items were not found by the auditors or to support claims that items in the audit sample should be \"rescored.\" ... [This includes] narrative explanations and supporting documentation such as invoices, telephone equipment orders, property record input forms, engineering drawings, and photographs[;] [2] any audit work papers generated by [Bureau] staff during the course of the audits that show or support the item-by item scoring of the items in the audit sample[;] [and 3] [Continuing Property Records] detail (vintage, description, etc.) for any items scored \"partially found,\" \"not found,\" or \"not verifiable\"at any time during the audit process. MCI stated that release of the requested raw data was crucial for responding to the questions asked in the NOI, particularly Issue 2.\n \n \n 10\n In a footnote, the Commission cited § 154(j) as an alternate source of its authority. See Order, 15 F.C.C.R. at 1788 n.23.\n \n \n 11\n Noting that MCI had not requested disclosure of materials concerning undetailed investment, the Commission decided not to require access to such information. See id. at 1791 p 14.\n \n \n 12\n The court granted Qwest's motion for a stay pending review.\n \n \n 13\n Section 1905 provides in relevant part:\n Whoever, being an officer or employee of the United States or of any department or agency thereof, ... publishes, divulges, discloses, or makes known in any manner or to any extent not authorized by law any information coming to him [or her] in the course of his [or her] employment or official duties or by reason of any examination or investigation made by, or return, report or record made to or filed with, such department ... ,which information concerns or relates to [ ] trade secrets ...;or permits any income return or copy thereof or any book containing any abstract or particulars thereof to be seen or examined by any person except as provided by law; shall befined under this title, or imprisoned not more than one year, or both; and shall be removed from office or employment.18 U.S.C. § 1905 (emphasis added).\n \n \n 14\n Among the possible sources were the Federal Property and Administrative Services Act of 1949, Titles VI and VII of the Civil Rights Act of 1964, and the Equal Employment Opportunity Act of 1972. See Chrysler, 441 U.S. at 304-05 & nn.34-36.\n \n \n 15\n The other provisions of § 220 are not directly applicable to this analysis. Section 220(b) concerns depreciation charges, see 47 U.S.C. § 220(b), while subsection (d) establishes a penalty against carriers for failure to comply with the record-keeping provisions, see id. § 220(d), and subsection (e) establishes a penalty for false entries in, and destruction or alteration of, records by any carrier. See id. § 220(e).\n \n \n 16\n See, for example, § 20(7)(f) of the Interstate Commerce Act of 1887, 49 U.S.C. § 20(7)(f) (1976) (current version at 49 U.S.C. §§ 11904, 14908, 16103 (1994 ed. Supp. I 1995)), which is the apparent model for § 220(f).\n \n \n 17\n Bartholdi Cable Co., Inc. v. FCC, 114 F.3d 274 (D.C. Cir. 1997), is not to the contrary, as Qwest suggests. Indeed, in Bartholdi, the court did not reach the statutory question that is at issue here. See id. at 281-82.\n \n \n 18\n Although Qwest states in its briefs that the \"sole\" issue on appeal is whether the Communications Act authorizes the Commission to release trade secrets, and arguably the court is entitled to take Qwest at its word, see Fed. R. App. P. 28(a)(9); J.S.G. Boggs v. Rubin, 161 F.3d 37, 42 (D.C. Cir. 1998) (citing Carducci v. Regan, 714 F.2d 171 (D.C. Cir. 1983)); Adams v. Hinchman, 154 F.3d 420, 424 n.7 (D.C. Cir. 1998), the arguments in Qwest's briefs suffice to preserve a second issue for appeal. The Commission has addressed Qwest's contention on the assumption that the court might conclude that the contention was properly preserved, and hence there is no prejudice to the Commission as a result of Qwest's failure to clearly designate in its briefs its alternative contention. See Fed. R. App. P. 28(a)(5), (8).\n \n \n 19\n Before the Commission, Qwest argued that the release decision was not only contrary to statute, but \"contrary to the Commission's own precedent regarding treatment of audit information\" and would adversely affect both Qwest's competitive position, and the Commission's ability to perform future audits. In addition, Qwest asserted that release breached the understanding and expectation that it had in submitting such information to the Commission-namely, that the information would be kept in confidence.\n \n \n 20\n See, e.g., In Re BellSouth Corporation BellSouth Telecommunications, Inc., Memorandum Opinion and Order, 8 F.C.C.R. 8129, 8130 p 7 (1993) (\"BellSouth\"); In Re Martha H. Platt, Memorandum Opinion and Order, 5 F.C.C.R. 5742, 5742 p 6 (1990) (\"Platt\"); In Re Scott J. Rafferty, Memorandum Opinion and Order, 5 F.C.C.R. 4138, 4138 p 3 (1990) (\"Rafferty\"); In Re Western Union Telegraph Company, Memorandum Opinion and Order, 2 F.C.C.R. 4485, 4486 p 10 (1987).\n \n \n 21\n See, e.g., In re Alaskans for Better Media, Memorandum Opinion and Order, 70 F.C.C.2d 1366 (1979); In re Classical Radio for Connecticut, Inc. and WTIC-FM Listeners' Guild, Memorandum Opinion and Order, 69 F.C.C.2d 1517 (1978); In re NTV Enterprises, Inc., Memorandum Opinion and Order, 62 F.C.C.2d 722 (1976).\n \n \n ",
"ocr": false,
"opinion_id": 185264
}
] |
D.C. Circuit
|
Court of Appeals for the D.C. Circuit
|
F
|
USA, Federal
|
127,667 | null | 2003-02-24 | false |
in-re-turner-ante-p-1070
|
In Re Turner, Ante, P. 1070
|
In Re Turner, Ante, P. 1070
| null | null | null | null | null | null | null | null | null | null | null | null | 0 |
Published
| null | null |
[
"537 U.S. 1228"
] |
[
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": "http://bulk.resource.org/courts.gov/c/US/537/537.US.1228.02-6803.html",
"author_id": null,
"opinion_text": "537 U.S. 1228\n IN RE TURNER, ante, p. 1070.\n No. 02-6803.\n Supreme Court of United States.\n February 24, 2003.\n \n 1\n Petition for rehearing denied.\n \n ",
"ocr": false,
"opinion_id": 127667
}
] |
Supreme Court
|
Supreme Court of the United States
|
F
|
USA, Federal
|
2,678,196 |
Hull, Marcus, Per Curiam, Pryor
| 2014-06-12 | false |
michael-e-riggins-v-rick-beseler-jr
| null |
Michael E. Riggins v. Rick Beseler, Jr.
|
Michael E. RIGGINS, Plaintiff-Counter Defendant-Appellant, v. Rick BESELER, Jr., Sheriff, Defendant-Counter Claimant-Appellee; Keenon, Lieutenant, Baker, Sergeant, Plummer, Deputy, John Doe, Dept., Et Al., Defendants-Appellees, Jane Doe, Et Al., Defendants
|
Michael E. Riggins, Graeeville, FL, pro se., Carl R. Peterson, Jr., Jolly & Peterson, P.A., Tallahassee, FL, Pam Bondi, Attorney General’s Office, Jacksonville, FL, for Defendant-Appellee.
|
NEW
| null | null | null |
Non-Argument Calendar.
| null | null | null | null | null | 0 |
Unpublished
| null |
<parties data-order="0" data-type="parties" id="b874-11">
Michael E. RIGGINS, Plaintiff-Counter Defendant-Appellant, v. Rick BESELER, Jr., Sheriff, Defendant-Counter Claimant-Appellee, Keenon, Lieutenant, Baker, Sergeant, Plummer, Deputy, John Doe, Dept., et al., Defendants-Appellees,
<span citation-index="1" class="star-pagination" label="851">
*851
</span>
Jane Doe, et al., Defendants.
</parties><br><docketnumber data-order="1" data-type="docketnumber" id="b875-5">
No. 13-11915
</docketnumber><p data-order="2" data-type="summary" id="ANf">
Non-Argument Calendar.
</p><br><court data-order="3" data-type="court" id="b875-6">
United States Court of Appeals, Eleventh Circuit.
</court><br><decisiondate data-order="4" data-type="decisiondate" id="b875-7">
June 12, 2014.
</decisiondate><br><attorneys data-order="5" data-type="attorneys" id="b876-3">
<span citation-index="1" class="star-pagination" label="852">
*852
</span>
Michael E. Riggins, Graeeville, FL, pro se.
</attorneys><br><attorneys data-order="6" data-type="attorneys" id="b876-4">
Carl R. Peterson, Jr., Jolly & Peterson, P.A., Tallahassee, FL, Pam Bondi, Attorney General’s Office, Jacksonville, FL, for Defendant-Appellee.
</attorneys><br><p data-order="7" data-type="judges" id="b876-6">
Before HULL, MARCUS and PRYOR, Circuit Judges.
</p>
|
[
"568 F. App'x 850"
] |
[
{
"author_str": "Per Curiam",
"per_curiam": false,
"type": "010combined",
"page_count": 7,
"download_url": "http://www.ca11.uscourts.gov/unpub/ops/201311915.pdf",
"author_id": null,
"opinion_text": " Case: 13-11915 Date Filed: 06/12/2014 Page: 1 of 7\n\n\n [DO NOT PUBLISH]\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 13-11915\n Non-Argument Calendar\n ________________________\n\n D.C. Docket No. 3:10-cv-01187-HLA-JBT\n\n\n\nMICHAEL E. RIGGINS,\n\n Plaintiff-Counter Defendant-\n Appellant,\n\n versus\n\nRICK BESELER, JR.,\nSheriff,\n\n\n Defendant-Counter Claimant-\n Appellee,\n\nKEENON,\nLieutenant,\nBAKER,\nSergeant,\nPLUMMER,\nDeputy,\nJOHN DOE,\nDept., et al.,\n\n Defendants-Appellees,\n\f Case: 13-11915 Date Filed: 06/12/2014 Page: 2 of 7\n\n\nJANE DOE, et al.,\n\n Defendants.\n\n ________________________\n\n Appeal from the United States District Court\n for the Middle District of Florida\n ________________________\n\n (June 12, 2014)\n\nBefore HULL, MARCUS and PRYOR, Circuit Judges.\n\nPER CURIAM:\n\n Michael Riggins, a Florida prisoner, appeals pro se the summary judgment\n\nagainst his third amended complaint about the violation of his civil rights under the\n\nEighth and Fourteenth Amendments by the Sheriff of Clay County, Florida, and\n\nfour of his employees, see 42 U.S.C. § 1983, and the summary judgment in favor\n\nof the Sheriff’s counterclaim for a lien to recover the costs of Riggins’s\n\nincarceration, see Fla. Stat. § 960.293(2)(b). Riggins complained that Sheriff Rick\n\nBeseler Jr., approved policies that allowed his officers and a nurse at the Clay\n\nCounty Detention Center to use excessive force against Riggins. While awaiting\n\ntrial, Riggins was housed in the medical confinement unit to monitor pain that he\n\nreported was radiating from his head down to his right arm. After Riggins refused\n\nto self-medicate, defied several orders from officers to “cuff up” for an\n\nexamination, and became combative, the officers stunned Riggins with a taser gun\n\n\n 2\n\f Case: 13-11915 Date Filed: 06/12/2014 Page: 3 of 7\n\n\nand restrained him for nurses to examine him. The district court ruled that Beseler\n\nhad official policies barring the use of excessive force against inmates; his officers’\n\nuse of force was not excessive; and Beseler was entitled to a civil restitution lien of\n\n$12,050. We affirm.\n\n The district court did not err by entering summary judgment in favor of\n\nBeseler. To hold Beseler liable as a supervisor, Riggins had to establish a causal\n\nrelation between Beseler’s official policies and the allegedly unlawful conduct of\n\nhis employees. See West v. Tillman, 496 F.3d 1321, 1328 (11th Cir. 2007).\n\nBeseler submitted a copy of his official policies, which state that officers may not\n\nuse physical force with inmates except “to effect lawful objectives . . . [and only]\n\nwhen necessary in self-defense, in defense of another, to overcome physical\n\nresistance to arrest, . . . or in response to a deliberate refusal to obey a lawful\n\ncommand”; officers may use a taser gun only to “obtain compliance by arrestees or\n\ninmates who deliberately refuse to obey a lawful command” and to counter their\n\n“active physical resistance” or “aggressive physical resistance”; medical staff must\n\nexamine inmates for four hours after they are stunned with a taser gun; and an\n\ninvestigation must be conducted of every incident involving physical force.\n\nBeseler also submitted a copy of a report establishing that he ordered an\n\ninvestigation of the incident between Riggins and the officers and that the officers\n\n\n\n\n 3\n\f Case: 13-11915 Date Filed: 06/12/2014 Page: 4 of 7\n\n\nacted consistent with the official policies. This evidence, without dispute,\n\nestablished that Beseler did not permit his officers to use excessive force.\n\n The district court also did not err by entering summary judgment against\n\nRiggins’s complaint that the officers used excessive force. An officer may use\n\nforce “in a good-faith effort to maintain or restore discipline.” Fennell v. Gilstrap,\n\n559 F.3d 1212, 1217 (11th Cir. 2009). To make that determination, we consider\n\nthe need for force; the relationship between that need and the amount of force\n\nused; the extent of the injury to the detainee; the extent of the threat to the safety of\n\nstaff and inmates; and any efforts made to temper the severity of a forceful\n\nresponse. Id. The officers had a legitimate need to use force against Riggins when\n\nhe was suffering from a potentially serious medical condition, and he refused to\n\ncomply with several orders given by Sergeant Daniel Baker and Lieutenant Audrey\n\nKeenon to submit to an examination. See Bennett v. Parker, 898 F.2d 1530, 1533\n\n(11th Cir. 1990) (“Prison guards may use force when necessary to restore order\n\nand need not wait until disturbances reach dangerous proportions before\n\nresponding.”).\n\n The amount of force employed by the officers was proportional to Riggins’s\n\naggressiveness and was used to restore order and to protect the officers and nursing\n\nstaff. See id. (“Decisions made at the scene of a disturbance to restore order are\n\nentitled to a degree of deference.”). Because Riggins was taller and significantly\n\n\n 4\n\f Case: 13-11915 Date Filed: 06/12/2014 Page: 5 of 7\n\n\noutweighed the officers, they determined they had to stun Riggins to cuff him.\n\nWhen Riggins broke the taser leads and charged Baker, Deputy Roger Plummer\n\nacted defensively by shoving Riggins on his bed. After Riggins struck at Plummer,\n\nBaker used his taser gun in drive stun mode on Riggins’s back to subdue him and\n\nto restrain him in a chair where nurses could safely examine him. When Riggins\n\nthreatened to resist more examinations, the officers kept Riggins in the chair to\n\nprevent him from harming himself and to allow nurses to examine him at 15-\n\nminute intervals for the four-hour period required by the official policies. See\n\nWilliams v. Burton, 943 F.2d 1572, 1575 (11th Cir. 1991) (concluding that the\n\napplication of four-point restraints and gagging to quash an inmate’s disturbance\n\nand to quell his attempts to incite other inmates did not “amount to the unnecessary\n\nand wanton infliction of pain forbidden by the Eighth Amendment” (internal\n\nquotation marks and citation omitted)). Other than Riggins’s self-serving\n\nstatement that he suffered scarring from the taser gun being used in stun drive\n\nmode, he failed to submit any evidence that his injuries were more than de\n\nminimis. See Bennett, 898 F.2d at 1533. The officers’ use of force was not\n\nexcessive.\n\n The district court also did not err by entering summary judgment in favor of\n\nNurse Jenny Glenn. Riggins does not dispute the findings that Glenn did not use\n\nforce to examine him and that she fulfilled her duties to treat him and document\n\n\n 5\n\f Case: 13-11915 Date Filed: 06/12/2014 Page: 6 of 7\n\n\nthat treatment. Riggins argues that Glenn should not have administered medical\n\ntreatment because she already had “a Medical Refusal Form . . . signed by [her]\n\nand witnessed by two officers,” but Riggins alleged in his third amended complaint\n\nthat he signed the form after he was examined by Glenn.\n\n Riggins moved for summary judgment on the ground that he had a right to\n\nrefuse medical treatment, but the district court correctly refused to consider an\n\nargument that Riggins raised for the first time in his opposition to Beseler’s motion\n\nfor summary judgment. See Gilmour v. Gates, McDonald and Co., 382 F.3d 1312,\n\n1315 (11th Cir. 2004) (“A plaintiff may not amend her complaint through\n\nargument in a brief opposing summary judgment.”). Moreover, Riggins admitted\n\nin his third amended complaint that he refused medical treatment only to the extent\n\nthat it was administered by a nurse instead of a doctor. See Harris v. Thigpen, 941\n\nF.2d 1495, 1505 (11th Cir. 1991) (“[A] simple difference in medical opinion\n\nbetween the prison’s medical staff and the inmate as to the latter’s . . . course of\n\ntreatment [does not] support a claim of cruel and unusual punishment.”).\n\n The district court did not err by entering summary judgment in favor of\n\nBeseler’s counterclaim for a lien to recover the costs of housing Riggins. Under\n\nFlorida law, “[u]pon conviction, a convicted offender is liable to the state and its\n\nlocal subdivisions for damages and losses for incarceration costs and other\n\ncorrectional costs,” and a “local subdivision of” the state can petition for a civil\n\n\n 6\n\f Case: 13-11915 Date Filed: 06/12/2014 Page: 7 of 7\n\n\nrestitution lien to recover those costs. Fla. Stat. § 960.292(1), (2). If “the\n\nconviction is for an offense other than a capital or life felony, a liquidated damage\n\namount of $50 per day of the convicted offender’s sentence shall be assessed\n\nagainst the convicted offender and in favor of the state or its local subdivisions.”\n\nId. § 960.293(2)(b). Riggins was incarcerated at the Clay County Detention Center\n\nand later convicted of a burglary offense. The district court determined that\n\nRiggins owed the Sheriff’s Office $12,050 for the 241 days he had been housed in\n\nthe Clay County jail. Riggins argues that he cannot be charged for the days he was\n\nawaiting trial, but Section 960.293(2) does not limit costs to those incurred after\n\nconviction. Riggins’s interpretation would undermine the stated “intent of the\n\nstatute . . . [to] fully compensat[e] . . . the state[] and its local subdivisions for\n\ndamages and losses incurred as a result of criminal conduct,” id. § 960.29(3)(a).\n\nSee Ilkanic v. City of Fort Lauderdale, 705 So. 2d 1371, 1372–73 (Fla. 1998).\n\n We AFFIRM the summary judgment in favor of Beseler and his employees.\n\n\n\n\n 7\n\f",
"ocr": false,
"opinion_id": 2678196
}
] |
Eleventh Circuit
|
Court of Appeals for the Eleventh Circuit
|
F
|
USA, Federal
|
2,678,201 | null | 2014-06-12 | false |
people-v-rodriguez-ca26
| null |
People v. Rodriguez CA2/6
| 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": 7,
"download_url": "http://www.courts.ca.gov/opinions/nonpub/B247514.PDF",
"author_id": null,
"opinion_text": "Filed 6/12/14 P. v. Rodriguez CA2/6\n\n NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS\nCalifornia Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not\ncertified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been\ncertified for publication or ordered published for purposes of rule 8.1115.\n\n\n IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA\n\n SECOND APPELLATE DISTRICT\n\n DIVISION SIX\n\n\nTHE PEOPLE, 2d Crim. No. B247514\n (Super. Ct. No. 2012035750)\n Plaintiff and Respondent, (Ventura County)\n\nv.\n\nBRAULIO RAY RODRIGUEZ,\n\n Defendant and Appellant.\n\n\n Braulio Ray Rodriguez appeals the judgment entered after he was\nconvicted by a jury of disturbing the peace, in violation of Penal Code section\n415, subdivision (1),1 and of committing the crime for the benefit of a street\ngang, in violation of section 186.22, subdivision (d). Appellant was sentenced to\nthree years in the California Department of Corrections.\n Appellant contends the trial court erred by refusing to modify\nCALCRIM No. 2688 by adding a statement that he could not be found guilty of\nthe crime of challenging another person to fight by \"the mere use of a vulgar,\nprofane, indecorous, scurrilous, opprobrious epithet.\" We reject the contention\nand affirm.\n\n\n\n1\n All subsequent statutory references are to the Penal Code.\n\f STATEMENT OF FACTS\n On September 1, 2012, Appellant, another man and two women\nwere using the Jacuzzi at the Serenade Apartments in Oxnard. The Jacuzzi and a\nswimming pool are exclusively for the use of tenants and their guests.\n Michael Kotz is a uniformed, armed, licensed security guard who\nwas assigned to patrol the apartments. One of his tasks is to confirm that persons\nusing the swimming pool and Jacuzzi are authorized to do so. Tenants must\nshow the key to their apartment to confirm their status.\n Kotz testified that he approached the persons in the Jacuzzi and\nasked if they were tenants. One of the women said she was. When Kotz asked\nto see her key, he was told that a third woman had taken it to return to her\napartment. Kotz said he would return later to confirm their status.\n As Kotz walked away, Appellant aggressively yelled, \"I'll\nremember your face, fool.\" Kotz said, \"What did you say?\" Appellant then got\nout of the Jacuzzi and approached Kotz saying, \"You heard me.\" Appellant was\nshirtless and a tattoo announcing his status as a member of the El Rio street gang\nwas plainly visible on his chest. \"Trouble Street\" was tattooed on Appellant's\nback. Kotz was aware that the El Rio gang is a violent criminal street gang in\nOxnard.\n Kotz then told the woman she and her companions would have to\nleave because of Appellant's actions and because they could not produce a key.\nAppellant confronted Kotz. He stood about a foot in front of Kotz, stuck out his\nchest and said, \"You're disrespecting me.\" Appellant came within inches of\nKotz, and while pointing at his El Rio tattoo repeatedly said, \"Do you know\nwhere I'm from? From El Rio.\" Kotz felt threatened by Appellant's words and\ngestures. As Kotz moved away from Appellant toward an exit, Appellant moved\ntoo, telling Kotz, \"Follow me.\" Appellant told one of the women in the group\nthat he was \"going to take care of\" Kotz.\n\n\n\n 2\n\f Kotz regarded these words and gestures to be threats, believed\nAppellant was challenging him to fight and concluded that he was about to be\nattacked. Hoping to discourage Appellant, Kotz began to record the event on his\nmobile phone. Appellant then displayed his middle finger and pushed Kotz and\nagain told him to come with him.\n Later, Appellant confronted Kotz in the parking lot and offered the\nthreat \"Wait 'till I see you on the street\" and threatened to \"catch him on the\nstreet.\" Kotz reported the incident to the police when his shift at the apartments\nended. Appellant was arrested but when interviewed, denied being involved in\nany incident at the apartments or even of being there on the day in question.\n DISCUSSION\n Appellant contends the trial court erred by refusing to add a phrase\nto instruction CALCRIM No. 2688 that would advise the jury that it could not\nfind him guilty of the crime of challenging another person to fight by \"[t]he mere\nuse of a vulgar, profane, indecorous, scurrilous, opprobrious epithet . . . .\" We\ndisagree.\n CALCRIM No. 2688 details for the jury the elements of the crime\nprosecutors were required to prove; viz., (1) that Appellant willfully and\nunlawfully challenged Kotz to fight; and (2) that Appellant and Kotz were in a\npublic place. The instruction explains that \"[a] challenge to fight means actions\nand/or words which communicate to a reasonable person that he or she is being\ninvited or challenged to engage in a physical fight. In determining whether there\nhas been a challenge to fight, you shall consider all of the evidence presented in\nthis case.\"\n The special instruction proposed by Appellant is based upon a false\npremise. His argument and the authority he cites assume he was charged with a\nviolation of section 415, subdivision (3) - uttering offensive words that were\ninherently likely to provoke an immediate violent reaction. He was not. The\ncrime charged was violating section 415, subdivision (1) - challenging Kotz to\n\n\n 3\n\ffight. The crimes are dissimilar and the principles that apply to one do not apply\nto the other.\n Whether or not someone has been challenged to fight requires\nconsideration of \"all of the evidence,\" including any \"vulgar, profane,\nindecorous, scurrilous, opprobrious epithet[s]\" uttered by Appellant in the\ncontext of the entire confrontation - just as the jury here was instructed. It is the\ntotality of the circumstances that matters. It is all relevant, and there is no\nprotected speech in the utterance of a challenge to fight. CALCRIM No. 2668\naccurately restates the law applicable to the crime charged and properly guides\nthe jury in what to consider in reaching its verdict.\n The decisional law cited by Appellant does not support the\ninstruction he requested. In re Alejandro G. (1995) 37 Cal.App.4th 44 addresses\nsection 415, subdivision (3) that makes offensive words unlawful if they are\n\"likely to provoke an immediate violent reaction\" - so-called \"fighting words.\"\nIn re Brown (1973) 9 Cal.3d 612 addresses the elements of unlawful assembly a\ncrime then proscribed by section 408 and section 415, subsection (2) [loud\nnoises]. In Jefferson v. Superior Court (1975) 51 Cal.App.3d 721 the court\naddressed offensive words likely to produce a violent reaction, not the crime of\nwhich Appellant was charged and convicted. Finally, Cohen v. California (1971)\n403 U.S. 15 was decided before section 415 was amended in 1974 to respond to\ndecisions of the United States Supreme Court invalidating portions of the\nprevious version of section 415. Subdivision (1) of the section, however, has\nbeen the same since 1850.\n The amendments to section 415 were explained in In re Cesar V.\n(2011) 192 Cal.App.4th 989. The explanation demonstrates why no specific\nintent is required to prove a violation of section 415, subdivision (1) and why\nnone of the words and conduct of the parties to a confrontation is excluded from\nconsideration in determining whether a challenge to fight was uttered.\n\n\n\n 4\n\f \"The new version [of section 415] was intended to 'regulate pure\nspeech (without the necessity of any other conduct) when the communication\nwould tend to result in a violent reaction.' [Citation.] The old version of . . .\nsection 415 had no subdivisions and prohibited a variety of speech and conduct\nin a single sentence. In contrast, the new version contained three subdivisions,\neach of which covered a distinct type of offense . . . . Section 415, subdivision\n(1) contained no reference to any mental state whatsoever, and applied only to\n'fights' and 'challenges . . . to fight' that occurred in a public place. Subdivision\n(2) explicitly required that the perpetrator act 'maliciously and willfully,' applied\nonly to 'disturb[ing] another person by loud and unreasonable noise,' and was not\nlimited to events that occurred in public places. Subdivision (3) did not refer to\nany mental state and applied to the use of 'offensive words in a public place,' but\nwas restricted to words 'inherently likely to provoke an immediate violent\nreaction.' [¶] The Legislature's use of three separate subdivisions was part of a\ncarefully calibrated scheme designed to prohibit communications that 'would\ntend to result in a violent reaction.' Because a fight or challenge to fight in a\npublic place necessarily tends to result in a violent reaction, the Legislature\nfound no need to delimit the application of subdivision (1). On the other hand,\nbecause 'offensive words' and 'loud and unreasonable noise' do not necessarily\ntend to result in a violent reaction, the Legislature imposed additional\nrequirements designed to limit these prohibitions to those words and noises\nwhich 'would tend to result in a violent reaction.' [¶] The Legislature's\ncalibration of the mental states and other elements required under each\nsubdivision of . . . section 415 was inherently reasonable. A challenge to fight is\nprohibited because such a challenge may provoke a violent response that\nendangers not only the challenger but any other persons who may be in the\npublic place where the challenge occurs. . . . If a person challenges another\nperson to fight in a public place, he or she violates . . . section 415, subdivision\n(1).\" (In re Cesar V., supra, 192 Cal.App.3d at pp. 998-999.)\n\n\n 5\n\f DISPOSITION\n The judgment is affirmed.\n NOT TO BE PUBLISHED.\n\n\n\n\n BURKE, J.*\n\n\nWe concur:\n\n\n\n GILBERT, P. J.\n\n\n\n PERREN, J.\n\n\n\n\n*\n (Judge of the Superior Court of San Luis Obispo County, assigned by the Chief\nJustice pursuant to art. 6, § 6 of the Cal. Const.)\n\n 6\n\f Matthew P. Guasco, Judge\n\n Superior Court County of Ventura\n ______________________________\n\n\n Stephen P. Lipson, Public Defender, Michael C. McMahon, Chief\nDeputy, Supriya Bhat and William M. Quest, Deputy Public Defenders for\nDefendant and Appellant.\n Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant\nAttorney General, Lance E. Winters, Senior Assistant Attorney General, Stephanie\nA. Miyoshi, David F. Glassman, Deputy Attorneys General, for Plaintiff and\nRespondent.\n\f",
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"opinion_id": 2678201
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California Court of Appeal
|
California Court of Appeal
|
SA
|
California, CA
|
375,893 | null | 1980-01-25 | false |
united-states-v-samuel-gantt-united-states-of-america-v-milton-charles
| null | null |
United States v. Samuel Gantt, United States of America v. Milton Charles Smith A/K/A "Creep" A/K/A "Shaw" A/K/A "Short", United States of America v. Orville Joseph Ridgely A/K/A "Black", United States of America v. William Cornell Farrell A/K/A "Suli Abdullah", United States of America v. Alfonso Jackson, A/K/A Al
| null | null | null | null | null | null | null | null | null | null | null | 35 |
Published
| null | null |
[
"617 F.2d 831"
] |
[
{
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"type": "010combined",
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"download_url": "http://bulk.resource.org/courts.gov/c/F2/617/617.F2d.831.78-1629.78-1599.78-1571.78-1570.78-1399.html",
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"opinion_text": "617 F.2d 831\n 199 U.S.App.D.C. 249, 5 Fed. R. Evid. Serv. 553\n UNITED STATES of Americav.Samuel GANTT, Appellant.UNITED STATES of Americav.Milton Charles SMITH a/k/a \"Creep\" a/k/a \"Shaw\" a/k/a\"Short\", Appellant.UNITED STATES of Americav.Orville Joseph RIDGELY a/k/a \"Black\", Appellant.UNITED STATES of Americav.William Cornell FARRELL a/k/a \"Suli Abdullah\", Appellant.UNITED STATES of Americav.Alfonso JACKSON, a/k/a Al, Appellant.\n Nos. 78-1399, 78-1570, 78-1571, 78-1599 and 78-1629.\n United States Court of Appeals,District of Columbia Circuit.\n Argued Feb. 28, 1979.Decided Jan. 25, 1980.\n \n Appeals from the United States District Court for the District of Columbia (D.C. Criminal Nos. 77-00726, 77-726-01 & 77-726-02).\n Philip J. Davis, Washington, D.C. (appointed by this Court), for appellant in No. 78-1399.\n Richard S. Bromberg, Washington, D.C. (appointed by this Court), for appellant in No. 78-1599.\n Stuart Stiller, Washington, D.C., for appellant in No. 78-1629.\n William Bingham, Washington, D.C., was on the brief for appellant in Nos. 78-1570 and 78-1571.\n Margaret Ellen, Asst. U. S. Atty., Washington, D.C., with whom Earl J. Silbert, U. S. Atty., Washington, D.C., at the time the briefs were filed, John A. Terry and Charles J. Harkins, Jr., Washington, D.C., were on the brief for appellee.\n Also John H. Korns, Asst. U. S. Atty., Washington, D.C., entered an appearance for appellee.\n Before MacKINNON, ROBB and WILKEY, Circuit Judges.\n Opinion for the Court filed by Circuit Judge ROBB.\n ROBB, Circuit Judge:\n \n \n 1\n On September 6, 1977 an indictment naming our appellants and ten other defendants1 was returned in the District Court. In various counts appellants Smith, a/k/a \"Creep\", Ridgely, a/k/a \"Black\", Farrell and Jackson were charged with conspiracy to distribute a controlled substance (21 U.S.C. § 846), traveling in interstate commerce between Washington, D.C. and Los Angeles, California with intent to distribute a controlled substance (18 U.S.C. § 1952), and distribution of a controlled substance (21 U.S.C. § 841(a)). In addition Smith was charged with engaging in a continuing criminal enterprise (21 U.S.C. § 848), and Farrell was charged with using a communication facility to facilitate the distribution of a controlled substance (21 U.S.C. § 843(b)). Appellant Gantt was charged with distributing a controlled substance (21 U.S.C. § 841(a)).\n \n \n 2\n A motion for severance by Gantt was granted; his motion to suppress a photographic identification was denied. He was tried by jury, found guilty and placed on probation for three years. Thereafter the other appellants and two co-defendants, Robinson and Henderson, went to trial before a jury.2 Motions for mistrial by Robinson and Henderson were granted. The appellants were convicted on all counts, sentenced to imprisonment, and they appeal.\n \n THE GOVERNMENT'S CASE AT TRIAL\n \n 3\n To be clearly understood and examined in focus the contentions of the appellants must be considered in the context of the government's case at trial.\n \n \n 4\n At trial the principal, indeed the vital witness for the government was Reginald Farmer. The jury must have believed him; if this were not so there could not have been a conviction. Accordingly we set out Farmer's testimony in some detail.\n \n \n 5\n Farmer, a former resident of Washington, D.C. had repaired to Los Angeles, California where he was employed as a professional actor. He testified that on the morning of March 25, 1975, while having breakfast at a Holiday Inn in Los Angeles, he encountered the defendant Jackson. He had known Jackson since 1962-1963. Jackson said he had been looking for Farmer, that he had come to California to find him, and had brought two other men along. He named the other two as Mumpsey and Jefferson. Mumpsey is defendant Isiah Minder. Jefferson is defendant Willie Jefferson. Jackson said Minder had been involved with a group dealing with heroin out of Holland, but there had been a \"massive narcotics bust\" and they were now looking for another source. He asked whether Farmer could procure any heroin for these people, as Farmer had done for Jackson on some previous occasion. Farmer said he had not been in touch with his source for some time but he would try. Jackson told Farmer the three men had driven out in his car with some $10,000 \"to just get started.\"\n \n \n 6\n On the afternoon of the same day, March 25, Farmer met Jackson, Minder and Jefferson in their suite at the Holiday Inn. Minder produced a briefcase containing money which Jackson counted out and turned over to Farmer. The amount was about $7,000. Jackson told Farmer to \"get going\" which Farmer did by locating his \"source\", a woman named Maria, and telling her he was trying to procure some narcotics. She agreed to assist.\n \n \n 7\n Early on the morning of March 26 Farmer took Maria to the airport, and gave her the money furnished by Jackson and Minder. That afternoon, following her instructions, he placed a telephone call to Tijuana, Mexico, and was told to come there and pick up the heroin. That evening he and his brother-in-law Harvey Wells drove to Tijuana and brought the package of narcotics back to Los Angeles. The next morning Farmer passed the package to Jackson in a restaurant booth. Later that day Jackson told Farmer that Jefferson and Minder had left with the narcotics for the Washington, D.C. area where the drugs would be distributed and then he would return with the profits to make a bigger purchase.\n \n \n 8\n About the first of April 1975 Jackson, Minder and Jefferson returned to Los Angeles and met Farmer at the Disneyland Hotel. After discussion about the amount of money that would be necessary to buy additional narcotics Minder said he would return to Washington and \"put together $25,000\", the minimum amount thought necessary to buy a pound of heroin.\n \n \n 9\n On April 8 Farmer met with Jackson, Minder and Jefferson in a hotel in Anaheim, California. Jefferson produced a paper bag containing between $12,000 and $13,000 in small bills. The money was turned over to Farmer. Jackson said they wanted a pound of heroin but Farmer should do the best he could. Farmer in turn met with Maria the next day, and asked her to get as much heroin as she could for the $12,000 or $13,000. Thereafter Jackson and Farmer went to San Diego where they checked into the Hanalei Hotel. From there Farmer and his brother-in-law Wells went to Tijuana, picked up a package of heroin, brought it back to the Hanalei Hotel and left it in an obscure place on the hotel parking lot. Jackson came to the lot, picked up the package, and put it in his pocket. He said he \"was leaving with this shipment with Mumpsey and Jefferson.\"\n \n \n 10\n Three or four days after the parking lot transaction Farmer telephoned to Jackson who was in Washington, D.C. Thereafter Jackson and Minder came to Los Angeles and met Farmer at the Universal Sheraton Hotel. Jackson said he had a young lady with him named Kitty, who would be taking the narcotics back to Washington. He went on to say they were having difficulties with the last shipment of drugs, that \"it wasn't as strong as at first\". Farmer responded that the amount they bought was \"considered a very minor purchase in this area\". Jackson and Minder then told Farmer they had brought one of the \"big people\" in the business from Washington, D.C., and they wanted Farmer to meet him. They said this man was a dealer who had \"personally come out\" because he thought they had diluted the narcotics they had sent him.\n \n \n 11\n Farmer agreed to meet the Washington dealer who was at the Holiday Inn and who was introduced to Farmer there as Creep. Farmer identified him in court as the defendant Smith. Smith complained about the bad narcotics furnished him, that could be diluted only 2 or 3 to 1 instead of 15 to 1. He said his customers had been threatening him. He added that he had been sending all the money and he was wondering who was getting priority over him. He indicated he wanted to arrange the next transaction directly with Farmer, to be assured that he would get what he was paying for. Farmer told him it would take $30,000 or $35,000 to buy a pound of heroin. Smith responded that he would come up with it but it would take approximately a week to get rid of the narcotics he had received through Jackson and Minder. He said he had 350 people working for him \"on the street.\" At the conclusion of the conversation he gave Farmer the telephone number of his place of business, his pool hall, and told Farmer to ask either for him or his brother.\n \n \n 12\n About a week after the meeting with Smith at the Holiday Inn Jackson, who had remained in Los Angeles, made a telephone call to Smith in Washington. Smith said his brother would bring the money to San Diego. Jackson and Farmer went to San Diego where Jackson again called Smith who directed him to go to a Sheraton Hotel and pick up the money. They drove to the hotel and Jackson went in and emerged in about thirty minutes with a briefcase containing $23,000 or $24,000 in cash. Jackson then called Smith to complain that there was less than $25,000. Smith promised to make up the difference. On the following morning Farmer turned the money over to Maria who went to Tijuana to purchase the heroin. Farmer and Wells then went to Tijuana and picked up the drugs. They returned in separate cars and Wells who had the heroin was arrested at the border.\n \n \n 13\n Without telling Jackson or Smith that Wells had been arrested Farmer began to stall, so he could replace the narcotics which had been seized. Having raised $4,000 he went to Maria and asked her help in replacing the lost narcotics. She agreed to help. During the waiting period Farmer checked Jackson into the Sunset Marquis Hotel in Hollywood, where he was given a weekly rate. Jackson asked Farmer to leave some money at the Universal Sheraton Hotel for Kitty, to send her back to Washington, and this Farmer did. He did not meet Kitty.\n \n \n 14\n About the first of May Maria told Farmer she would have a package of drugs for him around the 7th or 8th of May. Farmer relayed this information to Jackson. On the 7th of May Farmer went to Jackson's room at the Sunset Marquis where he found Jackson and the defendant Farrell. Farrell wanted an explanation for the delay. Farmer explained that \"narcotic busts\" in Tijuana were the reason. Farrell said he had a right to this information, that the money was his as much as it was Smith's, that he and Smith were partners. Farmer then went to Maria's apartment where he picked up a package of narcotics. He turned this package over to Jackson who was waiting in Farmer's car. Before they separated Farmer explained to Jackson that although he did not have a pound of heroin, \"since the quality is supposed to be superb, you will have to put four ounces of cut to 12 ounces, and then you would have a pound.\" Later in the day Jackson telephoned to Farmer and said Farrell did not understand about cutting the heroin. Farmer explained the matter to Farrell who said he now understood.\n \n \n 15\n Farmer's glowing description of his merchandise failed to satisfy Smith. Two or three days after the transaction with Farrell and Jackson on May 7 Smith telephoned to Farmer. He described \"the contents of what he received back in Washington as Shake and Bake . . . something you use on chicken.\" Smith said he wanted to see Farmer. A day or two later Smith came to California. In the presence of Jackson he threatened Farmer and berated him for diluting the heroin.\n \n \n 16\n In the last week in May Farmer received another shipment of narcotics from Maria. He reported to Smith by telephone that he had the narcotics and Smith said he would send Farrell to pick them up. When Farrell appeared a day or two later Farmer passed the drugs to him. Two days after that Smith informed Farmer by telephone that he was displeased because these drugs were also \"Shake and Bake\". He said he wanted to see Farmer. A day or so later Smith and Jackson met Farmer at the Holiday Inn in Los Angeles. They insisted on meeting Farmer's \"contacts in Mexico\" but Farmer agreed only to try to arrange a meeting. The meeting was never arranged nor did Farmer meet again with Smith or Jackson.\n \n \n 17\n On September 2, 1975 Farmer was arrested on a narcotics charge. His arrest resulted from testimony his brother-in-law Wells had given before a grand jury. Farmer pled guilty to a misdemeanor, was placed on probation for one year, and became a \"cooperating witness.\" Beginning about November 5, 1975 he was under the supervision of Special Agent Sutton of the Drug Enforcement Administration, who interviewed him many times. Information he gave resulted in the arrest and conviction of Maria Ramirez in California. On July 20, 1976 he called Farrell from the Drug Enforcement Agency offices in Los Angeles and spoke with Farrell about arranging a purchase of narcotics. This telephone conversation was tape-recorded and the tape was played to the jury. No purchase was consummated.\n \n \n 18\n Farmer's account of his activities was corroborated, in part, at least, by testimony from Wells and from Lydia Jefferson. Lydia Jefferson was the wife of Willie Jefferson, one of the co-defendants not tried with the appellants. It will be recalled that Willie Jefferson accompanied Jackson and \"Mumpsey\" Minder at the first meeting with Farmer on March 25, 1975.\n \n \n 19\n Additional and substantial corroboration appeared in the testimony of Isabelle Martin who lived with Jackson in 1975 and went with him to California in the spring of that year. She testified that when she and Jackson were at the Stage Door pool room and lounge in Washington, D.C., in April or June 1975, Jackson, after talking with Smith, told her that he had to go to California to pick up some narcotics. He said he had to go back because the last package of heroin Smith got \"wasn't right\", the weight wasn't right, and he had to go and make it right. Jackson said he was going to get the heroin from a man named Farmer and she was to go along and bring the drugs back to Washington. When they got to Los Angeles she and Jackson stayed at different hotels. She did not see Jackson in Los Angeles but he called her on the telephone every day. Jackson told her Mr. Farmer would leave some money for her to pay her bill. An envelope containing money was left at the desk of her hotel, but she did not see Farmer.\n \n \n 20\n Martin testified that after she had been in Los Angeles for a week or two Jackson called her from San Diego and told her to join him there. She then left Los Angeles and met Jackson in San Diego. He told her that Farrell and \"Black\", identified as the defendant Ridgely, were also there. Jackson said he was supposed to pick up a package of heroin in San Diego from Mr. Farmer. The transaction did not take place because Farmer \"called him one day and told him . . . his connection had gotten busted or locked up.\" After waiting a few more days she and Jackson returned to Los Angeles where they registered at the Sunset Marquis Motel. They were there when Jackson, after receiving a phone call from Farmer, left and returned with a package of heroin. He weighed the package with measuring scales which he carried, then opened it up and she tested the heroin by snorting some of it. As an experienced addict she identified the drug as strong heroin. Shortly thereafter Ridgely and Farrell came to the motel and Ridgely telephoned to Smith to report that the weight of the package of heroin \"wasn't right.\" Smith instructed Ridgely to return to Washington with what heroin he had while Jackson waited in Los Angeles for the balance of the shipment. Then Ridgely, Farrell and Martin flew back to Washington, Ridgely carrying the heroin. Upon arriving at Washington they went directly from the airport to the Stage Door pool room where they met Smith, and Ridgely handed him the package of narcotics.\n \n \n 21\n Martin testified that at the time she returned from California in 1975 she was using heroin \"and selling it and making arrangements for other people to buy it.\" She obtained her narcotics at the Stage Door pool room. She frequently saw Smith, Ridgely and Farrell at the pool room. She also saw the the co-defendants Frazier, a/k/a \"Piggy\" and Fletcher, a/k/a \"Porky\". She observed sales of heroin at the pool room by Porky, Piggy and others. When she inquired about the source of the drugs both Porky and Piggy told her it was \"Creep's dope\" meaning that it was Smith's heroin. She was able to identify the heroin as Smith's by the distinctive way in which it was packaged. She bought heroin at the Stage Door pool room three or four times a week during 1975. She frequently saw Smith approve a sale to customers or approve the extension of credit to a customer by giving the OK sign. She also observed Ridgely making sales of heroin. She noticed that the supply of heroin was kept either in the cigarette machine or in the back of the restroom.\n \n \n 22\n Continuing her testimony Martin said that during 1976 she bought drugs two or three times a week at the Stage Door pool room. Smith was there most of the time giving orders to runners and others who were selling the drugs. If Smith was not there Ridgely would give the orders. She was again told that the drugs she purchased were Smith's. On one occasion in 1976 when she asked Smith for some raw heroin he sent her to Ridgely who sold her the heroin for $250.00. On another occasion in April or May 1976 when she wanted \"a quarter of scrambled dope\" Ridgely told her \"to see John\", and John delivered the heroin to her. \"Scramble\" is inferior, as distinguished from pure heroin. She recalled also that when she wanted to buy on credit Smith gave his permission. She saw Farrell at the pool room, but \"not as much as the others\", and she saw him sell narcotics. She was told by Piggy that Farrell \"was selling Creep's dope and that he was on Warner Street selling most of the time\". Warner Street is five or six blocks from the Stage Door.\n \n \n 23\n Martin continued to frequent the pool hall in 1977. About March or April of that year she began working for the Drug Enforcement Administration and made several \"controlled buys\" for the DEA at the pool hall. A \"controlled buy\" occurs when the purchaser is cooperating with DEA agents and under surveillance by them. The first such buy took place in May or June 1977 when she approached John (the defendant Robinson) in the pool hall and he directed her to a man named Jack from whom she made the purchase. A few days later she went back to the pool hall and told Smith she wanted a spoon of raw heroin for $250.00. Smith told her to see John. She saw John and bought the heroin from him. Her testimony concerning the controlled buys was corroborated by the agents who had her under surveillance.\n \n \n 24\n Robert Crompton, a police informer, testified that during 1976 he was in the pool room almost every day, shooting pool and buying narcotics. He spent about six hours a day there. He bought narcotics and saw many other people buying them from Fat James (Henderson), Porky (Fletcher), and Piggy (Frazier). He observed that Smith was in charge of the pool hall and Ridgely appeared to be second in command. Fat James told him Smith and Ridgely paid him $5.00 or $10.00 for every bag of narcotics he sold. On perhaps a dozen occasions Crompton saw Porky counting money in amounts varying between $2500 and $6,000 and turning it over to Smith or Ridgely. The bills were separated into stacks, $100.00 in each stack. Based upon the going charges for pool of $0.40 a game or $1.50 an hour Crompton estimated the daily income from the pool tables to be not more than $60.00.\n \n \n 25\n In late 1976 Crompton stopped frequenting the pool hall but he began going there and making purchases again in June of 1977. He found that Smith again was in charge, Ridgely second in command, and the runners and other workers the same as before.\n \n \n 26\n Anthony Patterson, a police officer working under cover for the Metropolitan Police Department, testified that he made four purchases of narcotics at the pool hall in March and April 1977. In making these purchases Patterson would pay Henderson in the pool hall and Henderson would then get the narcotics from a nearby alley or automobile. On one occasion, April 14, 1977, Patterson rode up to the pool hall on his bicycle. He was approached by the defendant Gantt who asked if he could borrow Patterson's bike. Patterson told him that he was looking for Henderson to which Gantt replied that was why he wanted to use the bike, he was going to get something for Henderson, and if Patterson wanted \"a package\" he would bring it back. He told Patterson to give his money to Henderson who was in the pool room. Patterson gave Gantt the bike, then went into the pool room, told Henderson what had happened and gave him $60.00. Henderson said Gantt was all right, Gantt was his man, and not to worry because Gantt worked for him. Presently Gantt returned on the bicycle and turned it and a bag of heroin over to Patterson.\n \n GANTT'S MOTION TO SUPPRESS IDENTIFICATION\n \n 27\n Gantt filed a pretrial motion to suppress his identification by Officer Patterson. At the hearing on the motion Officer Patterson described his purchase of narcotics from Gantt and Henderson on April 14, 1977. Patterson testified that at the time he did not know Gantt's name, although he had seen him on two prior occasions. Within forty-five minutes after Gantt delivered the narcotics Patterson reported to his superior officer, Detective Johnson, who was in the area, that he had just made a purchase of heroin from \"John Doe, 9, unknown\", described as a black male, wearing a brown sweatsuit and approximately 40 to 45 years old. Detective Johnson promptly went to the Stage Door pool hall. Gantt was standing outside, wearing a brown sweatsuit. Johnson asked several other persons who were standing with Gantt for their identification and then asked Gantt for his. Gantt gave the officer his address, date of birth and Social Security number. With this information in hand Officer Johnson made a routine check of the police records, which disclosed no criminal record for Gantt. The officer then obtained a driver's license photograph of Gantt which he placed with five others, to make an array which he presented to Officer Patterson. Patterson \"looked through the photographs\" and identified Gantt as \"John Doe No. 9.\" Patterson testified:\n \n \n 28\n A. Detective Johnson gave me the photographs, told me to look at them, and see if there was anyone in there I knew or that I had dealt with or anyone that appeared familiar to me.\n \n \n 29\n Q. Did he mention any specific date that you were supposed to focus in on?\n \n \n 30\n A. No.\n \n \n 31\n Q. In looking at those photos, did you pick out any other individuals other than Mr. Gantt?A. No.\n \n \n 32\n Q. How soon did you pick Mr. Gantt out?\n \n \n 33\n A. As soon as I came across his picture.\n \n \n 34\n Q. There was no doubt in your mind?\n \n \n 35\n A. That is correct.\n \n \n 36\n (Tr. 19, 20) This occurred on April 20.\n \n \n 37\n On this appeal Gantt argues that the photographic array upon which his identification by Patterson was based \"was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification\", in violation of Gantt's right to due process. He argues further that it was error for the court to allow Patterson to identify Gantt in court without evidence or finding that this identification was based on Patterson's original observation of John Doe No. 9, rather than his identification of Gantt's photograph.\n \n \n 38\n Gantt contends that the photographic array presented to Patterson was \"impermissibly suggestive\" because his photograph \"was the only one of the six shown to Patterson which even remotely possessed the physical characteristics of the suspect as described by Patterson.\" Patterson's description of John Doe No. 9, as recorded in his \"buy\" report was \"Negro male, approximately 5'8 to 5'9 , 170-175, dark complexion, small bush, wearing a brown warmup suit or sweatsuit. Approximately 40 to 45 years of age.\"\n \n \n 39\n Gantt argues also that there was \"seriously fluctuating testimony\" by Patterson and Johnson as to the outstanding characteristics of John Doe No. 9. He refers to Detective Johnson's recollection of the brief description of John Doe No. 9 given him by Patterson, contrasted to Patterson's description, recorded in his buy report, and Patterson's added recollection that he also told Detective Johnson that John Doe No. 9 had sideburns.\n \n \n 40\n Identification by means of photographs is an acceptable procedure, and\n \n \n 41\n each case must be considered on its own facts, and . . . convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.\n \n \n 42\n Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). Considering this case on its own facts, we must reject the contention that the photographic array presented to Patterson was impermissibly suggestive. Our examination of the six photographs making up the array (Govt. Exhibits 3A-3F) does not disclose that the picture of Gantt was unique among the six photographs, as he contends. The presence of only six photographs in the array was not unduly suggestive. Manson v. Brathwaite, 432 U.S. 98, 115-16, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); United States v. Lawrence, 499 F.2d 962 (4th Cir. 1974); United States v. Smith, 546 F.2d 1275 (5th Cir. 1977); United States v. Collins, 559 F.2d 561 (9th Cir.), cert. denied, 434 U.S. 907, 98 S.Ct. 309, 54 L.Ed.2d 195 (1977). Nor was the identification invalidated by the delay of six days between Patterson's buy and the showing of the array. United States v. Smith, 179 U.S.App.D.C. 162, 551 F.2d 348 (1976); United States v. Hurt, 155 U.S.App.D.C. 217, 476 F.2d 1164 (1973).\n \n \n 43\n The District Court did not err by failing to make a finding of an independent source to support Patterson's identification of Gantt in court. Such a finding is necessary only when the photographic identification procedure has been found to be suggestive. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); United States v. Hurt, supra. In any event the record plainly would support a finding of an independent source. Patterson was not a casual or passing observer, but a trained police officer whose duty was to focus on the identification of those from whom he purchased drugs, and who knew that his observations would be subject later to close scrutiny. In addition, Gantt's face was familiar to him, for he had seen Gantt on at least two occasions before he made the purchase of narcotics on April 14. His recognition of Gantt's face in the photograph was instantaneous and positive. See Manson v. Brathwaite, supra, 432 U.S. at 115.\n \n \n 44\n In sum, considering the totality of circumstances we hold that the photographic identification of Gantt was not impermissibly suggestive.\n \n PRODUCTION OF MATERIAL BY THE GOVERNMENT\n \n 45\n All the appellants except Gantt contend that the District Court erred in not striking the testimony of witnesses or declaring a mistrial because of the government's failure to preserve the notes made by Agent Sutton and by the untimely production of other notes. The appellants argued that the result for which they contend follows from the doctrine of Jencks v. United States, 353 U.S. 657, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1957), the Jencks Act, 18 U.S.C. § 3500, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and United States v. Bryant, 142 U.S.App.D.C. 132, 439 F.2d 642 (1971). We think however that there was no error requiring reversal.\n \n \n 46\n Agent Sutton testified that he interviewed Farmer on many occasions. The first interview, lasting for two or three hours, took place in the office of Farmer's lawyer, after Farmer's arrest. This was, said Sutton, \"a kind of of a feeling out or general conversation wherein he was, I guess, trying to determine the kind of people we were and, in essence, we were trying to determine the kind of person he was or would be toward being useful to the Drug Enforcement Administration.\" (Tr. 151) Sutton made notes of only a few names of \"people out of Los Angeles and in Tijuana, Mexico\" and two telephone numbers. In March 1976 he interviewed Farmer again and made notes which were incorporated in a report dated March 3, 1976 which Sutton signed. This report was furnished to the defendants. Another interview took place on April 28, 1977 when Sutton made notes which were incorporated in a report dated May 4, 1977. He identified this report in court. He testified that until \"about mid-1977\" it was his practice to makes notes only \"in rough form\", merely giving times and locations. When his formal report had been typed and proofread his longhand draft and rough notes were destroyed. This was in conformance with the regular practice of the agency at the time. The DEA changed its practice \"about mid-1977\", and all notes are now preserved.\n \n \n 47\n The government produced the files of the California office of the Drug Enforcement Administration on Maria Ramirez, Reginald Farmer and Harvey Wells. After reviewing them in camera the court turned over to the defense a letter from Agent Sutton to a prosecutor in California and handwritten notes of Special Agent Hubbard on his interview with Farmer in 1977, before Farmer's grand jury appearance. In addition, the transcript of Farmer's testimony before the grand jury was furnished to the defense.\n \n \n 48\n It does not appear that Farmer signed or otherwise adopted or approved Sutton's notes, nor were those notes a verbatim recital of Farmer's statements. Thus, it cannot be said that the notes constituted a statement by Farmer within the meaning of the Jencks Act. 18 U.S.C. § 3500. Nevertheless, United States v. Bryant, 142 U.S.App.D.C. 132, 439 F.2d 642 (1971) imposed upon Sutton the duty to preserve his notes. He did not preserve them. The appellants argue that because of this failure the court was required to exclude the testimony of Farmer, or declare a mistrial. The result of either of these sanctions would have been the collapse of the government's case and the acquittal of the defendants. We think however that such an extreme sanction was not required.\n \n \n 49\n United States v. Bryant and later cases establish that the matter of sanctions for failure to preserve notes or other evidence is left to the discretion of the trial court. Factors to be considered are the good faith of the agent who destroyed the evidence, the circumstances of the destruction, the degree of prejudice to the defendant, and the strength of the government's case. United States v. Peters, 190 U.S.App.D.C. 370, 587 F.2d 1267 (1978); United States v. Quiovers, 176 U.S.App.D.C. 265, 539 F.2d 744 (1976); United States v. Carpenter, 166 U.S.App.D.C. 358, 510 F.2d 738 (1975); United States v. Perry, 153 U.S.App.D.C. 89, 471 F.2d 1057 (1972); United States v. Bundy, 153 U.S.App.D.C. 191, 472 F.2d 1266 (1972). The imposition of sanctions for failure to produce is not automatic.\n \n \n 50\n There was no evidence that Agent Sutton acted in bad faith or with any improper motive in destroying his rough notes and longhand drafts. On the contrary, he testified that he acted only in compliance with the regular practice of his agency. Although the agency may be faulted for failure to heed the admonition of United States v. Bryant, in the circumstances Sutton cannot be charged with this dereliction; it does not appear that he had even heard of the Bryant rule.\n \n \n 51\n As we have said the defendants were given Agent Sutton's reports, which he testified incorporated the material contained in his notes. They were also furnished the transcript of Farmer's testimony before the grand jury, and the notes of Special Agent Hubbard on his interview with Farmer in 1977, before Farmer's grand jury appearance. Furthermore, Farmer was cross examined extensively on the basis of this material, and with respect to some matters he was impeached. Thus he testified at trial that on March 26, 1975 he passed a package of narcotics to Jackson in a restaurant booth, but cross examination disclosed that before the grand jury he testified the transaction occurred at a Holiday Inn. Again, he testified that he delivered heroin to Farrell in the latter part of May 1975 but on cross examination he conceded that he had told Special Agent Sutton this delivery was made in the latter part of July or the first part of August.\n \n \n 52\n In the circumstances and in light of the overwhelming strength of the government's case we conclude that the failure to preserve and produce Sutton's rough notes and drafts does not require reversal. We decline to speculate that some item in the notes or drafts might have cancelled out all the other evidence and produced an acquittal. The Bryant rule requires the court to exercise a sound discretion in the matter of sanctions; it does not require us to ignore the dictates of common sense.\n \n \n 53\n The government witness Isabelle Martin testified that she had reviewed and approved five reports by Drug Enforcement Administration agents on the controlled buys which she had made at the Stage Door pool room. These reports were furnished to the defendants. The notes of Agent Johnson on his interviews with Martin were turned over to the defense. One statement in the notes conflicted with Martin's testimony. Appellants complain however that they did not receive a portion of the notes before Martin left the stand. According to the appellants she could not be recalled for further cross examination \"because of her physical condition\" she was pregnant and the arrival of her baby was thought to be imminent.\n \n \n 54\n Martin testified on Friday, April 21, 1978. She was cross examined at length, the cross examination running for 74 pages of the transcript. (Tr. 741-815) At the conclusion of her cross examination she was excused and court adjourned until the following Monday, April 24. On Monday morning counsel for the defense informed the court that one statement in Agent Johnson's notes contradicted part of Martin's testimony. Specifically, the notes disclosed that contrary to her testimony Martin had told Agent Johnson she did not see any package of heroin being delivered in California and did not know who brought the package back to Washington. Counsel explained that although this statement appeared in the notes furnished to counsel while Martin was on the stand counsel then had not had time to go through the material and discover the discrepancy. There was no showing or charge of any other conflict between the notes and Martin's testimony.\n \n \n 55\n The record does not support the contention that delay in the production of the Johnson notes was prejudicial error. When the notes were produced counsel did not ask for a recess to review them. Moreover there is no showing that Martin could not have been recalled for further examination when court reconvened on Monday. She was in jail at the time, and readily accessible. No motion to recall her was made nor was there any attempt to ascertain her condition. On this record we must reject the contention of the appellants that their cross examination of Martin was unfairly foreclosed. Furthermore, when Agent Johnson took the stand he was permitted to testify on cross examination that \"with respect to this package that was supposedly brought by Mr. Ridgely and the other gentleman on the airline\" Martin told him in May 1977 \"that she did not see the package, and did nto (sic) know who brough (sic) the package back\". (Tr. 885)3 Thus the appellants received the benefit of the conflict between the notes and Martin's testimony.\n \n \n 56\n Appellant Jackson also complains that Agent McCoy's notes taken during an interview with Harvey Wells, which contained references to other narcotics dealings by Reginald Farmer, were not turned over to the defense until Wells testified. Jackson contends that these notes were Brady material and that their untimely production prevented their use to impeach Farmer. Again, the defense made no effort to recall Reginald Farmer. Furthermore, the defense was permitted to elicit evidence of these additional narcotics dealings from Harvey Wells so that the jury had the relevant facts before it.4 We note also that the defendants were given transcripts of Wells' testimony before a grand jury in San Diego, California, and a statement in his handwriting which he had furnished to the Drug Enforcement Administration. Cross examination developed several discrepancies between statements in this material and the testimony Wells had given at trial. Jackson was not prejudiced by delay in producing the McCoy notes.\n \n \n 57\n Appellants also say the government failed to produce the criminal records of Reginald Farmer and Isabelle Martin and to divulge adequately the plea bargains with those two witnesses. The record which we have examined with care does not support these contentions. Farmer's and Martin's criminal records were made known and were used by the defense to impeach their credibility. Martin's FBI record was not received until a day after her testimony, but there is nothing in the record to indicate that it contained any information not already known to the defense. The plea bargains made with all the witnesses were also disclosed at a pretrial hearing. The defense was fully aware that Reginald Farmer and Harvey Wells had pled guilty to misdemeanor charges in California, and it was equally clear what government concessions had been made. On cross examination the defense used the facts of these plea bargains to discredit Farmer, Wells, Martin, and Crompton, and there is no evidence that the government either failed to provide or hampered the discovery of this information.\n \n EVIDENCE OF STATEMENTS BY CO-CONSPIRATORS\n \n 58\n Jackson and Farrell contend that the District Court committed error by admitting statements attributed to co-conspirators, before the court made specific findings that a conspiracy existed, that Jackson, Farrell and the persons making the statements were co-conspirators, and that the statements were made in furtherance of the conspiracy. We think however that the court did not err.\n \n \n 59\n The admissibility of the statements of alleged co-conspirators was questioned by counsel for Jackson early in the trial, when Farmer testified to certain statements made by Mumpsey Minder. The transcript (Tr. 229-31) reflects that the following occurred at that time:\n \n \n 60\n MR. STILLER (counsel for Jackson): If the court please, we are getting into a position now that hearsay-type statements are being elicited about people who have not said them in this Court or who are not in this Court.\n \n \n 61\n I see the Court has opened the limiting instruction. I would ask for the limiting instructions.\n \n \n 62\n But I believe that the only way that, for example, Mumpsey's statements could come in would be under the co-conspirator's hearsay doctrine. And at some point the conspiracy has to be shown before or some kind of allegation besides the indictment has to be shown of a conspiracy before this hearsay evidence can come in.\n \n Therefore, I move to exclude that.5\n \n 63\n THE COURT: Well, it doesn't work quite that way. It is received, subject to being tied up and I will give the limiting instruction at this time, if you like.\n \n \n 64\n MR. STILLER: May I ask the instruction that is going to be given?\n \n \n 65\n Fine.\n \n \n 66\n MR. HARKINS (Prosecutor): Could I?\n \n \n 67\n THE COURT: Yes, sure.\n \n The court then instructed the jury:\n \n 68\n Ladies and gentlemen of the jury, you have been hearing some statements that are hearsay as regards Mumpsey, who is not in the Court at this time. I want to advise you at this time that a statement made or an act done by a person outside the presence of these defendants may be considered by the jury, if the jury finds independent evidence, beyond a reasonable doubt, that there was a conspiracy, that the person making the statement or doing the act and the defendant or defendants against whom the statement or act is used with (sic) participants in the conspiracy.\n \n \n 69\n The statement made or acts done were made during and in furtherance of the conspiracy.\n \n \n 70\n Now it has not been shown yet and so we are allowing you to hear this tentatively with the expectation that the Government will tie it all up. If they do not, you will hear further about it, because you just consider it if they have provided the items that we are telling you.\n \n \n 71\n From the dialogue it is apparent that when defense counsel objected to \"hearsay-type statements\" by alleged co-conspirators, and asked for \"the limiting instructions\" with respect to such statements, the court showed him the instruction that the court proposed to give, and counsel then expressed his entire satisfaction with this disposition of his objection. By their silence counsel for the co-defendants endorsed this position. There was no request that before admitting the statements of co-conspirators against the defendants the court make findings that a conspiracy existed. In short, the defendants approved the course followed by the court; and they are hardly in a position now to complain that it was error. However, we need not rest our rejection of the defendants' complaint upon this ground alone.\n \n \n 72\n Statements by an alleged co-conspirator may be received in evidence against the defendants on trial if there is substantial evidence, independent of those statements that (1) a conspiracy existed, (2) the co-conspirator and the defendant against whom the statement is offered, were members of the conspiracy, and (3) the statements were made in furtherance of the conspiracy. It is for the court to determine whether the requisite evidence has been produced. Fed.R.Evid. 801(d)(2)(E). United States v. Nixon, 418 U.S. 683, 701 & n.14, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); United States v. James, 590 F.2d 575, en banc (5th Cir.), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979); United States v. Dixon, 562 F.2d 1138 (9th Cir. 1977), cert. denied, 435 U.S. 927, 98 S.Ct. 1494, 55 L.Ed.2d 521 (1978).6 As a practical matter, to avoid what otherwise would become a separate trial on the issue of admissibility, the court may admit declarations of co-conspirators \"subject to connection\". If substantial evidence of the connection has not been produced at the close of the government's case the court will instruct the jury to disregard the hearsay statements; or the court may grant a mistrial. United States v. Stanchich, 550 F.2d 1294 (2d Cir. 1977); United States v. Geaney, 417 F.2d 1116 (2d Cir. 1969), cert. denied, 397 U.S. 1028, 90 S.Ct. 1276, 25 L.Ed.2d 539 (1970); United States v. Greene, 523 F.2d 229 (2d Cir. 1975), cert. denied, 423 U.S. 1074, 96 S.Ct. 858, 47 L.Ed.2d 84 (1976); United States v. James, supra; see United States v. Ziegler, 583 F.2d 77, 80 (2d Cir. 1978).\n \n \n 73\n In this case there was overwhelming proof that Jackson and Farrell were members of a conspiracy and that the statements by co-conspirators were in furtherance of that conspiracy. This proof consisted of the acts of the defendants without reference to any statements of co-conspirators. Thus there was evidence that Jackson, Farrell, Jefferson, Mumpsey Minder, Smith and Ridgely were associated and that at one time or another they all went to California and obtained narcotics from Farmer, in return for large amounts of cash turned over to him. There was evidence that these narcotics were brought to Washington and dispensed by Smith and his organization at the Stage Door pool room. Smith and Ridgely were active in making sales of heroin at the pool room. This conduct of the defendants, without regard to any statements by co-conspirators, was sufficient to justify a finding that the defendants were acting pursuant to a common design and purpose, that is, that they were members of a conspiracy. Evidence of acts of co-conspirators of course is not hearsay; it stands on a footing quite different from evidence of their declarations. See Lutwak v. United States, 344 U.S. 604, 618, 73 S.Ct. 481, 97 L.Ed. 593 (1953); United States v. Geaney, supra, at 1120 n.3. In the light of this proof the failure of the court to make preliminary detailed findings of the existence of a conspiracy could not have prejudiced the defendants.\n \n \n 74\n In submitting the case to the jury the court gave an instruction which permitted the jury to determine the admissibility of declarations of co-conspirators. As we have said, the admissibility of such declarations was a question for the court. Jackson and Farrell contend that because the judge and not the jury had the responsibility of determining the admissibility it was error to submit the matter to the jury. They argue that \"the danger exists that the very introduction of the statements will have an undue influence upon the jury's determination of the existence of conspiracy.\" (Farrell Br. 19) The argument might be plausible if the evidence as to the existence of a conspiracy and the defendants' participation therein had been weak. In this case however the evidence was so strong that only one determination by the court was possible the challenged declarations were admissible against the defendants. The jury's consideration of the matter was merely an added and superfluous \"layer of factfinding\" which did not prejudice the defendants. Indeed, the court's instruction went too far in their favor by authorizing the jury to determine admissibility, and by requiring proof of a conspiracy beyond a reasonable doubt before the declarations of co-conspirators could be considered against the defendants. We repeat, substantial evidence, not proof beyond a reasonable doubt, is enough. See United States v. Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977); United States v. Mitchell, 556 F.2d 371, 377 (6th Cir.), cert. denied, 434 U.S. 925, 98 S.Ct. 406, 54 L.Ed.2d 284 (1977).\n \n THE MULTIPLE CONSPIRACY ARGUMENT\n \n 75\n Jackson and Farrell contend that although the indictment alleged one conspiracy the proof showed \"two primary conspiracies, the California conspiracy and the Washington, D. C. conspiracy\" (Farrell Br. 14), that there was \"no connection between events in California in 1975 and events beginning in June 1976 in Washington, D. C.\" (Jackson Br. 40) Jackson says there was no \"evidence that he had anything to do with events in Washington, D. C.\" (Br. 43) and Farrell avers that there was no proof that he \"participated in any way in the distribution of narcotics from the Stage Door Pool Hall\". (Br. 14) From these premises the appellants argue that there was a fatal variance between the indictment and the proof. Specifically, they say they were prejudiced by the evidence relating to activities at the Stage Door pool hall, with which they had no connection. The flaw in their argument is that it does not square with the allegations of the indictment and the facts shown by the evidence.\n \n \n 76\n The indictment charged that the defendants, including Jackson and Farrell, conspired to distribute and possess with intent to distribute quantities of heroin. It was alleged that as part of the conspiracy certain of the defendants, including Jackson and Farrell, would travel from Washington, D. C. to California for the purpose of arranging purchases of narcotics for distribution in Washington, D. C.; that as a further part of the conspiracy certain of the defendants would prepare narcotics for sale in the District of Columbia, certain defendants would be in charge of the distribution of narcotics, and certain defendants would be in charge of sales. Without repeating the summary of the testimony with which we began this opinion it is enough to say that the proof fully supported the allegations of the indictment. The evidence showed a conspiracy to procure drugs and dispense them in the District of Columbia. The leader, Smith, or Smith and Farrell together, supplied capital to Jackson who obtained the narcotics from Farmer. The narcotics were then cut, packaged, and resold to customers in the District of Columbia by persons working for Smith. The activities of each member and group in the organization meshed with those of the other members and groups. In short, the evidence disclosed a classic example of a narcotics sale and distribution conspiracy. See United States v. Bruno, 105 F.2d 921 (2d Cir.) rev'd on other grounds, 308 U.S. 287, 60 S.Ct. 198, 84 L.Ed. 257 (1939); United States v. Rich, 262 F.2d 415 (2d Cir. 1959); United States v. Stromberg, 268 F.2d 256 (2d Cir.), cert. denied, 361 U.S. 863, 80 S.Ct. 119, 4 L.Ed.2d 102 (1959); United States v. Bynum, 485 F.2d 490 (2d Cir. 1973), vacated and remanded on other grounds, 417 U.S. 903, 94 S.Ct. 2598, 41 L.Ed.2d 209 (1974); United States v. Tramaglino, 197 F.2d 928 (2d Cir.), cert. denied, 344 U.S. 864, 73 S.Ct. 105, 97 L.Ed. 670 (1952). The facts here are completely different from those in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946) and other similar cases relied upon by the appellants. In those cases the evidence showed \"wheel-type\" conspiracies, whereas the conspiracy here was the \"chain-type\" conspiracy common in narcotics cases.\n \n \n 77\n The court instructed the jury that each defendant could be convicted only if he was found to be a member of the particular conspiracy charged in the indictment; that if a defendant was found to be a member of another conspiracy, not the one charged in the indictment, he must be acquitted. The appellants requested a jury instruction that if more than one conspiracy was proven the defendants must be acquitted. This however is not the law. The court's charge was correct. United States v. Tramunti, 513 F.2d 1087 (2d Cir.), cert. denied, 423 U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975); United States v. Lam Leck Chong, 544 F.2d 58 (2d Cir. 1976), cert. denied, 429 U.S. 1101, 97 S.Ct. 1124, 51 L.Ed.2d 550 (1977); United States v. Taylor, 562 F.2d 1345 (2d Cir.), cert. denied, 432 U.S. 909, 98 S.Ct. 170, 54 L.Ed.2d 124 (1977).\n \n MISCELLANEOUS\n \n 78\n Smith says he was entitled to a judgment of acquittal on Count 2 of the indictment, which charged him with engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848. The sole ground of his attack on the conviction is that \"the government's proof did not establish the fourth essential element of this offense, that being that Milton Smith had to obtain substantial income or resources from the criminal enterprise\". (Br. 8) Smith argues that the testimony of Robert Crompton, \"the only government witness\" who testified with respect to this matter, was \"pure speculation\". We do not agree.\n \n \n 79\n Crompton testified that Smith was in charge of the business at the pool hall. On at least a dozen occasions Crompton saw money in amounts varying between $2500 and $6000 being counted at the pool hall and turned over to Smith or his associate Ridgely. As a regular patron of the pool hall Crompton knew that the charge for pool was $0.40 a game, or $1.50 an hour. From this he estimated that the daily income from the pool tables was not more than $60.00. This testimony was not speculation. The jury also had before it the testimony of Farmer that Smith and Jackson had turned over to him thousands of dollars in cash to use in the purchase of heroin; and the principal business of the pool hall was the traffic in heroin. From all this evidence the jury was justified in finding that Smith received substantial income from his illegal enterprise.\n \n \n 80\n Ridgely contends that he was entitled to a judgment of acquittal on a count of the indictment charging him with the sale of heroin to Isabelle Martin. According to Ridgely, Martin's testimony with respect to this sale was impeached on cross examination. The record shows however that the cross examination related to another sale, not to the one which was the basis of Ridgely's conviction.\n \n \n 81\n Farrell argues that he was prejudiced when the court improperly limited his cross examination of Reginald Farmer. The contention is not supported by the record.\n \n \n 82\n Farmer testified that he made his last delivery of heroin to Farrell in late May or early June of 1975. In contrast, Farmer's grand jury testimony and his statements to DEA agents fixed the date of this delivery as late July or early August of 1975. According to the prior testimony and statements the delivery had occurred after the firebombing of Farmer's house, which occurred in July of 1975. Counsel for Farrell proposed to refer to the firebombing on cross examination of Farmer, to fix the date of the delivery of narcotics. Quite naturally counsel for the co-defendants objected and the objection was sustained. It was suggested that Farrell's counsel might refer to the bombing as a fire, without eliciting any details, but counsel did not adopt this proposal. However counsel did question Farmer about his prior inconsistent statements and he presented two agents who testified that in statements to them Farmer had fixed the date of the drug transaction as late July or early August. Under these circumstances it is frivolous to contend that Farmer was prejudiced by the exclusion of questions concerning the firebombing.\n \n CONCLUSION\n \n 83\n The judgment of the District Court as to each appellant is\n \n \n 84\n Affirmed.\n \n \n \n 1\n In addition to the appellants the defendants named in the indictment were Isiah Minder, a/k/a \"Mumpsey Bumpsey\", Willie Jefferson, John Martin Robinson, a/k/a \"Big John\", James Lewis Henderson, Jr., a/k/a \"Fat James\", Harold Elsworth Frazier, a/k/a \"Piggy\", Carroll Fletcher, a/k/a \"Porky\", John Doe, Alfred W. Taliaferro, Larry Walker and Lloyd Vernon Spriggs\n \n \n 2\n The trial of the other defendants was severed\n \n \n 3\n Johnson testified that when he interviewed Martin again in June or July of 1977 Martin's statements were in accord with her testimony. (Tr. 889)\n \n \n 4\n In any event evidence of the other narcotics dealings did not rise to the level of Brady material for it was not evidence of innocence but at most was merely additional impeachment material\n \n \n 5\n It should be noted that the statements of Mumpsey Minder on which counsel for Jackson focused were plainly admissible against Jackson, for they were made in his presence\n \n \n 6\n The Court of Appeals for the Second Circuit holds that a fair preponderance of the evidence independent of the hearsay utterances is enough to make the statements of co-conspirators admissible. United States v. Stanchich, 550 F.2d 1294 (2d Cir. 1977); United States v. Geaney, 417 F.2d 1116 (2d Cir. 1969), cert. denied, 397 U.S. 1028, 90 S.Ct. 1276, 25 L.Ed.2d 539 (1970). The Court of Appeals for the First Circuit holds that there is a sufficient showing of conspiracy to permit the introduction of the statements of co-conspirators if the evidence makes the existence of conspiracy more likely than not. United States v. Martorano, 557 F.2d 1 (1st Cir. 1977), cert. denied, 435 U.S. 922, 98 S.Ct. 1484, 55 L.Ed.2d 515 (1978); United States v. Petrozziello, 548 F.2d 20 (1st Cir. 1977)\n \n \n ",
"ocr": false,
"opinion_id": 375893
}
] |
D.C. Circuit
|
Court of Appeals for the D.C. Circuit
|
F
|
USA, Federal
|
376,435 | null | 1980-01-02 | false |
united-states-v-louis-beck-and-diversified-realty-
| null |
United States v. Louis Beck and Diversified Realty Investment Corp
| null | null | null | null | null | null | null | null | null | null | null | null | 0 |
Published
| null | null |
[
"618 F.2d 109"
] |
[
{
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"type": "010combined",
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"download_url": "http://bulk.resource.org/courts.gov/c/F2/618/618.F2d.109.78-2513.html",
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"opinion_text": "618 F.2d 109\n U. S.v.Louis Beck and Diversified Realty Investment Corp.\n 78-2513\n UNITED STATES COURT OF APPEALS Seventh Circuit\n 1/2/80\n \n 1\n E.D.Wis.\n \n AFFIRMED\n ",
"ocr": false,
"opinion_id": 376435
}
] |
Seventh Circuit
|
Court of Appeals for the Seventh Circuit
|
F
|
USA, Federal
|
289,594 |
Fahy, Per Curiam, Robinson, Wright
| 1970-06-01 | false |
jack-wasserman-v-time-inc
| null |
Jack Wasserman v. Time, Inc
|
Jack WASSERMAN, Appellant, v. TIME, INC.
|
Mr. Chester C. Shore, Washington, D. C., for appellant., Mr. Harold R. Medina, Jr., New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Messrs. John H. Pickering and Dennis M. Flannery, Washington, D. C., were on the brief, for appellee.
| null | null | null | null | null | null | null |
Argued Jan. 12, 1970., Certiorari Denied June 1, 1970.
|
See 90 S.Ct. 1844.
| null | 58 |
Published
| null |
<parties data-order="0" data-type="parties" id="b984-14">
Jack WASSERMAN, Appellant, v. TIME, INC.
</parties><br><docketnumber data-order="1" data-type="docketnumber" id="b984-16">
No. 23267.
</docketnumber><br><court data-order="2" data-type="court" id="b984-17">
United States Court of Appeals, District of Columbia Circuit.
</court><br><otherdate data-order="3" data-type="otherdate" id="b984-18">
Argued Jan. 12, 1970.
</otherdate><br><decisiondate data-order="4" data-type="decisiondate" id="b984-19">
Decided March 3, 1970.
</decisiondate><otherdate data-order="5" data-type="otherdate" id="ama-dedup-0">
Certiorari Denied June 1, 1970.
</otherdate><br><seealso data-order="6" data-type="seealso" id="b984-20">
See 90 S.Ct. 1844.
</seealso><br><attorneys data-order="7" data-type="attorneys" id="b985-10">
<span citation-index="1" class="star-pagination" label="921">
*921
</span>
Mr. Chester C. Shore, Washington, D. C., for appellant.
</attorneys><br><attorneys data-order="8" data-type="attorneys" id="b985-11">
Mr. Harold R. Medina, Jr., New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Messrs. John H. Pickering and Dennis M. Flannery, Washington, D. C., were on the brief, for appellee.
</attorneys><br><p data-order="9" data-type="judges" id="b985-13">
Before FAHY, Senior Circuit Judge, and WRIGHT and ROBINSON, Circuit Judges.
</p>
|
[
"424 F.2d 920"
] |
[
{
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"download_url": "http://bulk.resource.org/courts.gov/c/F2/424/424.F2d.920.23267.html",
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"opinion_text": "424 F.2d 920\n Jack WASSERMAN, Appellant,v.TIME, INC.\n No. 23267.\n United States Court of Appeals, District of Columbia Circuit.\n Argued January 12, 1970.\n Decided March 3, 1970.\n Certiorari Denied June 1, 1970.\n \n See 90 S.Ct. 1844.\n Mr. Chester C. Shore, Washington, D. C., for appellant.\n Mr. Harold R. Medina, Jr., New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Messrs. John H. Pickering and Dennis M. Flannery, Washington, D. C., were on the brief, for appellee.\n Before FAHY, Senior Circuit Judge, and WRIGHT and ROBINSON, Circuit Judges.\n PER CURIAM:\n \n \n 1\n On cross motions in appellant's action for libel in the District Court against appellee Time, Inc., the court granted summary judgment in favor of Time, and dismissed appellant's complaint. He appeals.\n \n \n 2\n Time publishes a weekly magazine with national circulation. In its issue of October 7, 1966, it published a photograph of seven men sitting at a table in a restaurant in Queens, New York. One of the men was appellant a member of the bar of this court in active practice. Another was Frank Ragano, also an attorney. Accompanying the photograph was a brief article which referred to the occasion as a meeting even \"`bigger than Apalachin' of top Cosa Nostra hoodlums.\" The article also referred to the occasion as a delayed lunch which had been interrupted by the police because the District Attorney wanted the men before a grand jury on crime in Queens, that a judge had set bail at $100,000 each, that this had been met, and that the grand jury got only grunts.\n \n \n 3\n Ragano sued Time for libel in the United States District Court for the Middle District of Florida.1 In that case Time moved for summary judgment on the basis of the freedom of press protected by the First Amendment. Judge Krentzman denied the motion. He held that if the statement was understood as defamatory it was not protected by the ruling announced in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), if the statement was false and made with actual malice, that is, with knowledge of its falsity or in reckless disregard of whether it was true or false. He held as to Mr. Ragano that under these criteria the publication was with actual malice. He accordingly denied Time's motion for summary judgment and held that it was for the jury to determine whether or not the article was in fact understood as defamatory.\n \n \n 4\n We accept the position of Time, as Judge Krentzman did, that the standards of New York Times v. Sullivan, supra, are applicable even though appellant was not a public official, since he was engaged in a matter of public interest and concern.2 However, as more fully appears in the opinion of Judge Krentzman, it is undisputed that Time knew that Wasserman, like Ragano, was an attorney for one or more of the men in the group referred to in the article and was not one of those called before the grand jury and released on $100,000 bail. Time's position is that by attending the delayed lunch meeting the attorneys were playing a part and were engaging in a demonstration defiant of the law, which justified Time in its editorial decision reached in good faith not to refer to appellant and Ragano as attorneys, but to place them in the same category as the others characterized in the article as we have set forth. Such a decision on the part of the editors of Time, however, would not preclude responsibility for any defamation known to be false or made with reckless disregard of the truth.\n \n \n 5\n The judgment is reversed and the case is remanded for trial on the issues of actual malice, defamation and possible damages.\n \n \n 6\n Reversed and remanded for further proceedings consistent with this opinion.\n \n \n \n Notes:\n \n \n 1\n Ragano v. Time, Inc., 302 F.Supp. 1005 (M.D.Fla.1969), appeal docketed, 5th Cir. 1969\n \n \n 2\n See cases cited in Ragano, supra, 302 F. Supp. at 1006-1007, n. 1.\n \n \n \n 7\n J. SKELLY WRIGHT, Circuit Judge (concurring):\n \n \n 8\n I concur in the court's opinion. My attempt here is to set out what I conceive to be the proper procedure in handling the issue of actual malice in New York Times Co. v. Sullivan1 cases.\n \n \n 9\n In my judgment New York Times Co. v. Sullivan makes actual malice a constitutional issue to be decided in the first instance by the trial judge applying the Times test of actual knowledge or reckless disregard of the truth.2 Cf. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). Unless the court finds, on the basis of pretrial affidavits, depositions or other documentary evidence, that the plaintiff can prove actual malice in the Times sense, it should grant summary judgment for the defendant. Washington Post Co. v. Keogh, 125 U.S.App.D.C. 32, 365 F.2d 965, 20 A.L.R.3d 972 (1966), cert. denied, 385 U.S. 1011, 87 S.Ct. 708, 17 L.Ed.2d 548 (1967). Compare Goldwater v. Ginzburg, 2 Cir., 414 F.2d 324, 336-337 (1969), cert. denied, 396 U.S. 1049, 90 S.Ct. 701, 24 L.Ed.2d 695 (1970).\n \n \n 10\n If the case survives the defendant's summary judgment motion, the trial court at the close of the plaintiff's case must decide whether actual malice has been shown with \"convincing clarity.\"3 In making this judgment the court will judge the credibility of the witnesses and draw its own inferences from the evidence. If the trial is permitted to proceed, the court will be called upon again to make a judgment on the actual malice issue at the close of all of the evidence. If the motion for a directed verdict at this stage of the trial is denied, the actual malice issue, along with the other issues, is then submitted to the jury under the Times instruction without any indication from the court or counsel that the court has decided that the evidence shows actual malice with \"convincing clarity.\" This two-step procedure in which both the trial judge and the jury must find actual malice before there can be judgment for the plaintiff provides the protection of the First Amendment freedom that Times sought to make secure in areas of public concern. As the Court stated in Rosenblatt v. Baer in support of its requirement that the trial judge in the first instance determine whether the evidence shows the plaintiff in a libel suit to be a public official: \"Such a course will both lessen the possibility that a jury will use the cloak of a general verdict to punish unpopular ideas or speakers, and assure an appellate court the record and findings required for review of constitutional decisions. Cf. Speiser v. Randall, 357 U.S. 513, 525 [78 S.Ct. 1332, 1341, 2 L.Ed.2d 1460]; New York Times, 376 U.S., at 285 [84 S.Ct. 710].\" 383 U.S. at 88 n. 15, 86 S.Ct. at 677.\n \n \n 11\n I am authorized to say that Judge SPOTTSWOOD W. ROBINSON, III, concurs in this opinion.\n \n \n \n Notes:\n \n \n 1\n 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)\n \n \n 2\n Compare Rosenblatt v. Baer, 383 U.S. 75, 88, 86 S.Ct. 669, 677, 15 L.Ed.2d 597 (1966): \"We remark only that, as is the case with questions of privilege generally, [in a libel case] it is for the trial judge in the first instance to determine whether the proofs show respondent to be a `public official.'\"\n \n \n 3\n New York Times Co. v. Sullivan,supra Note 1, 376 U.S. at 285-286, 84 S.Ct. 710.\n \n \n ",
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"opinion_text": "\nPER CURIAM:\nOn cross motions in appellant’s action for libel in the District Court against appellee Time, Inc., the court granted summary judgment in favor of Time, and dismissed appellant’s complaint. He appeals.\nTime publishes a weekly magazine with national circulation. In its issue of October 7, 1966, it published a photograph of seven men sitting at a table in a restaurant in Queens, New York. One of the men was appellant a member of the bar of this court in active practice. Another was Frank Ragano, also an attorney. Accompanying the photograph was a brief article which referred to the occasion as a meeting even “ ‘bigger than Apalachin’ of top Cosa Nostra hoodlums.” The article also referred to the occasion as a delayed lunch which had been interrupted by the police because the District Attorney wanted the men before a grand jury on crime in Queens, that a judge had set bail at $100,000 each, that this had been met, and that the grand jury got only grunts.\nRagano sued Time for libel in the United States District Court for the Middle District of Florida.1 In that case Time moved for summary judgment on the basis of the freedom of press protected by the First Amendment. Judge Krentzman denied the motion. He held that if the statement was understood as defamatory it was not protected by the ruling announced in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), if the statement was false and made with actual malice, that is, with knowledge of its falsity or in reckless disregard of whether it was true or false. He held as to Mr. Ragano that under these criteria the publiea*922tion was with actual malice. He accordingly denied Time’s motion for summary judgment and held that it was for the jury to determine whether or not the article was in fact understood as defamatory.\nWe accept the position of Time, as Judge Krentzman did, that the standards of New York Times v. Sullivan, supra, are applicable even though appellant was not a public official, since he was engaged in a matter of public interest and concern.2 However, as more fully appears in the opinion of Judge Krentzman, it is undisputed that Time knew that Wasserman, like Ragano, was an attorney for one or more of the men in the group referred to in the article and was not one of those called before the grand jury and released on $100,000 bail. Time’s position is that by attending the delayed lunch meeting the attorneys were playing a part and were engaging in a demonstration defiant of the law, which justified Time in its editorial decision reached in good faith not to refer to appellant and Ragano as attorneys, but to place them in the same category as the others characterized in the article as we have set forth. Such a decision on the part of the editors of Time, however, would not preclude responsibility for any defamation known to be false or made with reckless disregard of the truth.\nThe judgment is reversed and the case is remanded for trial on the issues of actual malice, defamation and possible damages.\nReversed and remanded for further proceedings consistent with this opinion.\n\n. Ragano v. Time, Inc., 302 F.Supp. 1005 (M.D.FIa.1969), appeal docketed, 5th Cir. 1969.\n\n\n. See eases cited in Ragano, supra, 302 F.Supp. at 1006-1007, n. 1.\n\n",
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"type": "030concurrence",
"page_count": null,
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"opinion_text": "\nJ. SKELLY WRIGHT, Circuit Judge\n(concurring):\nI concur in the court’s opinion. My attempt here is to set out what I conceive to be the proper procedure in handling the issue of actual malice in New York Times Co. v. Sullivan1 cases.\nIn my judgment New York Times Co. v. Sullivan makes actual malice a constitutional issue to be decided in the first instance by the trial judge applying the Times test of actual knowledge or reckless disregard of the truth.2 Cf. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). Unless the court finds, on the basis of pretrial affidavits, depositions or other documentary evidence, that the plaintiff can prove actual malice in the Times sense, it should grant summary judgment for the defendant. Washington Post Co. v. Keogh, 125 U.S.App.D.C. 32, 365 F.2d 965, 20 A.L.R.3d 972 (1966), cert. denied, 385 U.S. 1011, 87 S.Ct. 708, 17 L.Ed.2d 548 (1967). Compare Goldwater v. Ginzburg, 2 Cir., 414 F.2d 324, 336-337 (1969), cert. denied, 396 U.S. 1049, 90 S.Ct. 701, 24 L.Ed.2d 695 (1970).\nIf the case survives the defendant’s summary judgment motion, the trial court at the close of the plaintiff’s case must decide whether actual malice has been shown with “convincing clarity.” 3 In making this judgment the court will judge the credibility of the witnesses and draw its own inferences from the evidence. If the trial is permitted to proceed, the court will be called upon again to make a judgment on the actual malice issue at the close of all of the evidence. If the motion for a directed verdict at this stage of the trial is denied, the actual malice issue, along with the other issues, is then submitted to the jury under the Times instruction without any indication from the court or counsel that the court has decided that the evidence shows actual malice with “convincing clarity.”\n*923This two-step procedure in which both the trial judge and the jury must find actual malice before there can be judgment for the plaintiff provides the protection of the First Amendment freedom that Times sought to make secure in areas of public concern. As the Court stated in Rosenblatt v. Baer in support of its requirement that the trial judge in the first instance determine whether the evidence shows the plaintiff in a libel suit to be a public official: “Such a course will both lessen the possibility that a jury will use the cloak of a general verdict to punish unpopular ideas or speakers, and assure an appellate court the record and findings required for review of constitutional decisions. Cf. Speiser v. Randall, 357 U.S. 513, 525 [78 S.Ct. 1332, 1341, 2 L.Ed.2d 1460]; New York Times, 376 U.S., at 285 [84 S.Ct. 710].” 383 U.S. at 88 n. 15, 86 S.Ct. at 677.\nI am authorized to say that Judge SPOTTSWOOD W. ROBINSON, III, concurs in this opinion.\n\n. 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).\n\n\n. Compare Rosenblatt v. Baer, 383 U.S. 75, 88, 86 S.Ct. 669, 677, 15 L.Ed.2d 597 (1966): “We remark only that, as is the ease with questions of privilege generally, [in a libel ease] it is for the trial judge in the first instance to determine whether the proofs show respondent to be a ‘public official.’ ”\n\n\n. New York Times Co. v. Sullivan, supra Note 1, 376 U.S. at 285-286, 84 S.Ct. 710.\n\n",
"ocr": false,
"opinion_id": 9455499
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] |
D.C. Circuit
|
Court of Appeals for the D.C. Circuit
|
F
|
USA, Federal
|
45,978 |
Barksdale, Jones, Prado
| 2006-10-03 | false |
foster-v-quarterman
|
Foster
|
Foster v. Quarterman
|
Kenneth Eugene FOSTER, Petitioner-Appellee-Cross-Appellant, v. Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellant-Cross-Appellee
|
Keith S. Hampton (argued), Hampton Law Office, Austin, TX, for Foster., Tornee Morgan Heining (argued), Austin, TX, for Quarterman.
| null | null | null | null | null | null | null | null | null | null | 0 |
Published
| null |
<parties id="b383-13">
Kenneth Eugene FOSTER, Petitioner-Appellee-Cross-Appellant, v. Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellant-Cross-Appellee.
</parties><br><docketnumber id="b383-16">
No. 05-70016.
</docketnumber><br><court id="b383-17">
United States Court of Appeals, Fifth Circuit.
</court><br><decisiondate id="b383-19">
Oct. 2, 2006.
</decisiondate><br><attorneys id="b386-4">
<span citation-index="1" class="star-pagination" label="362">
*362
</span>
Keith S. Hampton (argued), Hampton Law Office, Austin, TX, for Foster.
</attorneys><br><attorneys id="b386-5">
Tornee Morgan Heining (argued), Austin, TX, for Quarterman.
</attorneys><br><judges id="b386-7">
Before JONES, Chief Judge, and BARKSDALE and PRADO, Circuit Judges.
</judges>
|
[
"466 F.3d 359"
] |
[
{
"author_str": "Barksdale",
"per_curiam": false,
"type": "010combined",
"page_count": 26,
"download_url": "http://www.ca5.uscourts.gov/opinions\\pub\\05/05-70016-CV0.wpd.pdf",
"author_id": null,
"opinion_text": " United States Court of Appeals\n Fifth Circuit\n F I L E D\n UNITED STATES COURT OF APPEALS\n FIFTH CIRCUIT October 2, 2006\n\n Charles R. Fulbruge III\n Clerk\n No. 05-70016\n\n\n KENNETH EUGENE FOSTER,\n\n Petitioner-Appellee-Cross-Appellant,\n\n versus\n\n NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL\n JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,\n\n Respondent-Appellant-Cross-Appellee.\n\n\n Appeals from the United States District Court\n for the Western District of Texas\n\n\nBefore JONES, Chief Judge, and BARKSDALE and PRADO, Circuit Judges.\n\nRHESA HAWKINS BARKSDALE:\n\n Kenneth Eugene Foster was convicted in Texas state court of\n\ncapital murder during the course of a robbery in 1996 and sentenced\n\nto death. The district court granted conditional habeas relief on\n\nFoster’s claimed unconstitutional sentence under the Eighth\n\nAmendment, as construed in Enmund v. Florida, 458 U.S. 782, 797-800\n\n(1982), and Tison v. Arizona, 481 U.S. 137 (1987), because the jury\n\ndid not make the requisite factual findings: (1)whether Foster\n\nacted with reckless indifference to human life; and (2) whether he\n\nplayed a major role in the activities leading to the murder. For\n\nFoster’s remaining 11 claims, the court denied relief and a\n\ncertificate of appealability (COA). See 28 U.S.C. §§ 2253, 2254.\n\f The State appeals the conditional habeas-relief. Subsequent\n\nto our recent denial of Foster’s COA request, Foster v. Dretke,\n\nNo. 05-70016, 2006 WL 616980 (5th Cir. 13 A.K. Marsh. 2006), petition for\n\ncert. filed, (U.S. 7 June 2006) (No. 05-11488), Foster requested\n\nanother COA to pursue a stand-alone actual–innocence claim. In so\n\ndoing, he maintained a COA request for that claim had been\n\ninadvertently omitted from his initial COA request. Oral argument\n\naddressed the State’s appeal and the extremely belated COA request.\n\n COA DENIED; conditional habeas relief granted by the district\n\ncourt VACATED; habeas relief DENIED.\n\n I.\n\n On the evening of 14 August 1996, Foster and three others –\n\nMauriceo Brown, DeWayne Dillard, and Julius Steen – embarked on\n\narmed robberies around San Antonio, Texas, beginning with Brown’s\n\nannouncing he had a gun and asking whether the others wanted to rob\n\npeople: “I have the strap, do you all want to jack?”. During the\n\nguilt/innocence phase of Foster’s trial, Steen testified he rode in\n\nthe front seat, looking for potential victims, while Foster drove.\n\n Steen and Brown testified to robbing two different groups at\n\ngunpoint that night; the four men divided the stolen property\n\nequally. The criminal conduct continued into the early hours of\n\nthe next day (15 August), when Foster began following a vehicle\n\ndriven by Mary Patrick.\n\n\n\n\n 2\n\f Patrick testified: she and Michael LaHood, Jr. were returning\n\nin separate cars to his house; she arrived and noticed Foster’s\n\nvehicle turn around and stop in front of Michael LaHood’s house;\n\nPatrick approached Foster’s vehicle to ascertain who was following\n\nher; she briefly spoke to the men in the vehicle, then walked away\n\ntowards Michael LaHood, who had reached the house and exited his\n\nvehicle; she saw a man with a scarf across his face and a gun in\n\nhis hand exit Foster’s vehicle and approach her and Michael LaHood;\n\nMichael LaHood told her to go inside the house, and she ran towards\n\nthe door, but tripped and fell; she looked back and saw the gunman\n\npointing a gun at Michael LaHood’s face, demanding his keys, money,\n\nand wallet; Michael LaHood responded that Patrick had the keys; and\n\nPatrick heard a loud bang.\n\n Michael LaHood died from a gunshot wound to the head. The\n\nbarrel of the gun was no more than six inches from his head when he\n\nwas shot; it was likely closer than that. Brown had similarly\n\nstuck his gun in the faces of some of the night’s earlier robbery\n\nvictims.\n\n Later that day, all four men were arrested; each gave a\n\nwritten statement identifying Brown as the shooter. Brown admitted\n\nbeing the shooter but denied intent to kill. He testified that he\n\napproached Michael LaHood to obtain Patrick’s telephone number and\n\nonly drew his weapon when he saw what appeared to be a gun in\n\n\n\n\n 3\n\fMichael LaHood’s possession and heard what sounded to him like the\n\nclick of an automatic weapon.\n\n In May 1997, Foster and Brown were tried jointly for capital\n\nmurder committed in the course of a robbery. The jury found each\n\nguilty of that charge and answered the special issues at the\n\npenalty phase to impose a death sentence for each.\n\n On direct appeal, Foster contended, inter alia: because he\n\ndid nothing more than agree to commit and participate in robberies,\n\nhis death sentence violated the Eighth Amendment; application of\n\nTexas Penal Code § 7.02(b) (conspiracy party liability) violated\n\nthe Sixth and Fourteenth Amendments to the Constitution; and the\n\ntrial court erred in refusing a jury instruction on the lesser-\n\nincluded offense of aggravated robbery. The Texas Court of\n\nCriminal Appeals affirmed Foster’s conviction and sentence.\n\n The court held, inter alia: Foster’s sentence did not violate\n\nthe Constitution because, before convicting him of capital murder\n\nas a party, the jury had to determine he intended to promote the\n\ncommission of intentional murder; a law–of–the–parties instruction\n\nunder § 7.02(b) is appropriate when no such charge is in the\n\nindictment because the statute describes attempt to carry out, not\n\nthe offense of, conspiracy; and a lesser-included–offense\n\ninstruction was not warranted because nothing in the record would\n\npermit a rational jury to find Foster guilty only of aggravated\n\nrobbery and not murder in the course of a robbery. See Foster v.\n\n\n 4\n\fState, No. 72,853 (Tex. Crim. App. 30 June 1999) (unpublished)\n\n(TCCA Opn.). Three judges dissented, and would have held, inter\n\nalia, that Foster was entitled to a lesser–included–offense\n\ninstruction. Id. at 33 (Mansfield, J., dissenting).\n\n The Supreme Court of the United States denied a writ of\n\ncertiorari. Foster v. Texas, 529 U.S. 1057 (2000).\n\n In April 1999, before the conclusion of his direct appeal,\n\nFoster filed for state–habeas relief. After holding evidentiary\n\nhearings, the state-habeas court issued findings of fact and\n\nconclusions of law, recommending denial of relief; the Court of\n\nCriminal Appeals denied relief in an unpublished order. Ex Parte\n\nFoster, No. 50,823-01 (Tex. Crim. App. 6 A.K. Marsh. 2002).\n\n The Supreme Court again denied a writ of certiorari. Foster\n\nv. Texas, 537 U.S. 901 (2002).\n\n Foster presented 14 claims in his federal-habeas petition,\n\nincluding the actual–innocence claim for which he belatedly seeks\n\na COA from this court. Included with the petition were new\n\naffidavits and other supporting evidence, and an evidentiary\n\nhearing was requested. The State moved for summary judgment. On\n\n3 March 2005, the district court granted conditional habeas relief\n\nas to sentencing for three claims and denied relief, as well as a\n\nCOA, for the remaining 11. Among other rulings, the requested\n\nevidentiary hearing was denied and the State’s summary-judgment\n\n\n\n 5\n\fmotion was denied as moot. See Foster v. Dretke, No. SA-02-CA-301-\n\nRF, 2005 U.S. Dist. LEXIS 13862 (S.D. Tex. 3 A.K. Marsh. 2005).\n\n Each side appealed. To do so, Foster requested a COA from our\n\ncourt on two claims. Foster, 2006 WL 616980, addresses the denial\n\nof that request.\n\n II.\n\n Review of this 28 U.S.C. § 2254 habeas proceeding is subject\n\nto the Antiterrorism and Effective Death Penalty Act of 1996, Pub.\n\nL. No. 104-132, 110 Stat. 1214 (1996) (AEDPA). See, e.g., Penry v.\n\nJohnson, 532 U.S. 782, 792 (2001). Before addressing the\n\nconditional habeas relief granted by the district court, we\n\nconsider the belated COA request for a stand-alone actual-innocence\n\nclaim.\n\n A.\n\n Under AEDPA, Foster may not appeal the denial of habeas relief\n\nunless he obtains a COA from either the district, or this, court.\n\n28 U.S.C. § 2253(c); FED. R. APP. P. 22(b)(1); Slack v. McDaniel,\n\n529 U.S. 473, 478 (2000). Under Federal Rule of Appellate\n\nProcedure 22(b)(1), the district court must first decide whether to\n\ngrant a COA before one can be requested here. As noted, the\n\ndistrict court denied a COA for the claim Foster seeks to appeal\n\nhere.\n\n Obtaining a COA requires “a substantial showing of the denial\n\nof a constitutional right”. 28 U.S.C. § 2253(c)(2); e.g.,\n\n\n 6\n\fMiller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack, 529 U.S. at\n\n483. For that requisite showing, an applicant usually must\n\ndemonstrate “reasonable jurists could debate whether (or, for that\n\nmatter, agree that) the [federal-habeas] petition should have been\n\nresolved in a different manner or that the issues presented were\n\n‘adequate to deserve encouragement to proceed further’”.\n\nMiller-El, 537 U.S. at 336 (quoting Slack, 529 U.S. at 484).\n\nWhere, as here, the district court’s habeas denial includes a\n\nprocedural ruling, as opposed to one on the underlying\n\nconstitutional claim, the showing is expanded. See Hall v. Cain,\n\n216 F.3d 518, 521 (5th Cir. 2000). In that situation, the\n\napplicant must show jurists of reason would find debatable whether:\n\nthe habeas petition states a valid claim of the denial of a\n\nconstitutional right; and the district court’s procedural ruling\n\nwas correct. Id.\n\n In determining whether to grant a COA, this court is, inter\n\nalia, limited “to a threshold inquiry into the underlying merit of\n\n[Foster’s] claims”. Miller-El, 537 U.S. at 327. “This threshold\n\ninquiry does not require full consideration of the factual or legal\n\nbases adduced in support of the claims.” Id. at 336. Instead, the\n\ncourt must make “an overview of the claims in the habeas petition\n\nand a general assessment of their merits”. Id. Because Foster was\n\nconvicted of capital murder and received the death penalty, “any\n\ndoubts as to whether a COA should issue must be resolved in [his]\n\n 7\n\ffavor”. Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.), cert.\n\ndenied, 531 U.S. 966 (2000).\n\n For purposes of the mandated threshold inquiry, we recognize\n\nthat, in ruling on the merits, the district court was required by\n\nAEDPA to defer, with limited exceptions, to the state court’s\n\nresolution of Foster’s claims. The exceptions provided by AEDPA\n\nturn on the character of the state court’s ruling.\n\n First, such deference is mandated both for questions of law\n\nand for mixed questions of law and fact, unless the state court’s\n\n“decision ... was contrary to, or involved an unreasonable\n\napplication of, clearly established Federal law, as determined by\n\nthe Supreme Court of the United States”. 28 U.S.C. § 2254(d)(1);\n\nsee Hill v. Johnson, 210 F.3d 481, 488 (5th Cir. 2000), cert.\n\ndenied, 532 U.S. 1039 (2001). A state court’s decision is\n\n“contrary to clearly established federal law” under § 2254(d)(1)\n\n“if it reaches a legal conclusion in direct conflict with a prior\n\ndecision of the Supreme Court or if it reaches a different\n\nconclusion than the Supreme Court based on materially\n\nindistinguishable facts”. Miniel v. Cockrell, 339 F.3d 331, 337\n\n(5th Cir. 2003), cert. denied, 540 U.S. 1179 (2004).\n\n Second, such deference is required for the state court’s\n\n“decision [unless it] was based on an unreasonable determination of\n\nthe facts in [the] light of the evidence presented in the State\n\ncourt proceeding”. 28 U.S.C. § 2254(d)(2). On the merits,\n\n\n 8\n\fpursuant to AEDPA, the state court’s factual findings are presumed\n\ncorrect; in district court, Foster had “the burden of rebutting\n\n[that] presumption ... by clear and convincing evidence”. 28\n\nU.S.C. § 2254(e)(1). This threshold inquiry is considered against\n\nthe elements for Foster’s claim. Again, it is but one of the\n\nprocedures mandated by AEDPA for deciding whether a COA should be\n\ngranted.\n\n As presented in state and federal court, Foster seeks a COA\n\nfor his claim he is innocent, as proven by: Dillard’s testimony\n\nduring a state-habeas evidentiary hearing; and an affidavit from\n\nSteen presented for the first time during the federal-habeas\n\nproceeding. Before addressing the request, we must decide whether\n\nto consider it because of its untimeliness.\n\n 1.\n\n Foster’s initial COA request to our court was filed on 1 June\n\n2005 and addressed two claims (neither concerned actual innocence).\n\nOn 29 June 2005, the State filed its opposition; it did not, of\n\ncourse, address actual–innocence, as Foster had not raised the\n\nissue. Foster filed: a reply brief on 27 July 2005 for his COA\n\nrequest; and a sur–reply on 11 October 2005 to the State’s reply\n\nbrief regarding its appeal from the conditional habeas–grant, in\n\nwhich he also addressed his COA request. Neither of Foster’s reply\n\nbriefs addressed actual–innocence or claimed he had inadvertently\n\nfailed to include that issue in his COA application. (It is assumed\n\n\n\n 9\n\fthat, in replying to the State’s briefs, Foster’s counsel read\n\nthem. Obviously, in doing so, he should have noticed an actual-\n\ninnocence claim was not addressed.)\n\n Foster did not make this inadvertent-failure assertion until\n\nafter our 13 March 2006 COA–denial. On 27 March 2006,\n\napproximately ten months after Foster’s initial COA application was\n\nfiled, Foster’s counsel filed a “Motion for Consideration of\n\nInadvertently Omitted Issue”, claiming that, while reading our 13\n\nMarch COA denial, he “immediately noticed that the opinion\n\naddressed only two issues; there was no mention regarding [the\n\nactual-innocence claim]”. That motion stated: “Counsel’s\n\nfifty–page brief [for the initial request] included twelve pages of\n\nargument about whether a reasonable and fair jury would more likely\n\nhave acquitted Mr. Foster in light of the accounts of Dwayne\n\nDillard and Julius Steen”; and this issue’s not being addressed in\n\nthe 13 March COA–denial “alarmed counsel”. Counsel then\n\nacknowledged he had failed in the initial application to submit the\n\nportion of his brief addressing Dillard and Steen, and asked our\n\ncourt to consider the omitted issue.\n\n Pursuant to AEDPA, there is no limitations period\n\ngoverning the filing of COA requests. Of course, Foster’s 4 April\n\n2005 notice of appeal satisfied the related limitations period for\n\nfiling an appeal. FED. R. APP. P. 4. In any event, in a situation\n\nsuch as this, where Foster appealed the denial of relief on various\n\n\n\n 10\n\fclaims and requested a COA for that, he generally would have waived\n\nany claim not addressed in his COA application/brief.\n\n Foster’s situation, however, is somewhat different than the\n\nusual case where a party waives a claim by failing to raise it.\n\nHere, counsel claims he unintentionally failed to do so because he\n\nfiled the wrong brief.\n\n As noted, Foster’s initial COA request to our court was\n\ndenied. Generally, we would not consider this new request.\n\nBecause the State’s appeal is pending in our court, however, we\n\nwill consider the COA request for the actual–innocence claim.\n\nCounsel in future cases are warned that, should they seek to\n\nlikewise raise “inadvertantly-omitted” COA requests, they may well\n\nnot be allowed to do so, for obvious reasons. In this instance,\n\ncounsel’s purported reasons for failing to initially request a COA\n\non this issue are nothing short of inexcusable.\n\n 2.\n\n Pursuant to a plea agreement, Steen testified at trial against\n\nBrown and Foster; Dillard did not testify. Foster maintains\n\nDillard’s testimony in the state-habeas proceeding and Steen’s\n\naffidavit in the federal-habeas proceeding (clarifying Steen’s\n\ntrial testimony) demonstrate Foster’s actual innocence and\n\nineligibility for the death penalty.\n\n As of the state-habeas evidentiary hearing, Dillard had\n\nalready begun serving a life–sentence for another capital murder he\n\n\n 11\n\fcommitted with Steen. Dillard testified: there was no agreement\n\nto commit robberies the night of Michael LaHood's murder; although\n\nhe (Dillard) provided the gun, he had nothing to do with the\n\nrobberies or the murder; Foster was just the group's driver, not\n\nthe getaway driver; after the second robbery, Foster said he\n\nwanted to stop, so Dillard took the gun back and believed no more\n\nrobberies would be committed that night; he directed Foster to\n\ndrive through the residential area where Michael LaHood lived;\n\nFoster stopped because a woman flagged the car down and because\n\nSteen told him to; there was no agreement to rob Michael LaHood;\n\nand, after Brown shot Michael LaHood, Foster tried to leave but\n\nDillard would not let him.\n\n Steen’s affidavit in the federal-habeas proceedings stated:\n\nconcerning his trial testimony that he “understood what was\n\nprobably fixing to go down” when Brown exited the vehicle at\n\nMichael LaHood's residence, he understood, at that point (but not\n\nbefore), what might happen; Steen did not think Foster knew what\n\nwas going to happen; there was no agreement to commit robbery;\n\neveryone was shocked after Brown shot Michael LaHood; and by\n\ntestifying at trial he needed to stay awake because he was “riding\n\nshotgun\", he meant a person gets a “good view in the front seat”,\n\nnot that riding in that position means committing robberies.\n\n In denying habeas relief in March 2002, the Court of Criminal\n\nAppeals did not address Dillard’s testimony. Steen’s affidavit, of\n\n\n\n 12\n\fcourse, was also not mentioned, because it was presented for the\n\nfirst time during federal-habeas proceedings.\n\n In addressing Foster’s actual–innocence claim, the district\n\ncourt first noted Herrera v. Collins, 506 U.S. 390, 400 (1993),\n\nprecludes that claim’s being brought as an independent ground for\n\nhabeas relief. Foster, 2005 U.S. Dist. LEXIS 13862, at *40-42.\n\nRather, the district court noted an actual–innocence claim may be\n\nused to raise an otherwise procedurally–defaulted habeas claim. It\n\ncited Schlup v. Delo, 513 U.S. 298, 327 (1995), for the following\n\nproposition: “[A] petitioner seeking to surmount a procedural\n\ndefault through a showing of ‘actual innocence’ must establish it\n\nis more likely than not that, in [the] light of the new evidence,\n\nno juror, acting reasonably, would have voted to find the\n\npetitioner guilty beyond a reasonable doubt”. Id. at *43.\n\n The district court then stated: Dillard’s new testimony and\n\nSteen’s affidavit merely repeat the same non–credible assertions\n\nmade by Brown’s trial testimony and Foster’s statements to police\n\n(namely, that Brown exited the vehicle at Michael LaHood’s house\n\nonly to get Patrick’s telephone number); and the jury rejected\n\nBrown’s testimony by finding him guilty of capital murder. The\n\ncourt also stated the jury implicitly rejected Foster’s claims to\n\npolice that: he was not involved in the night’s robberies; he had\n\nno idea Brown carried a gun when he approached Michael LaHood; and,\n\nwhen Brown exited the vehicle, Foster did not think Brown was going\n\n\n 13\n\fto rob Michael LaHood. The court held: because Dillard’s new\n\ntestimony and Steen’s affidavit merely repeat testimony the jury\n\nheard and rejected, there is no reasonable possibility any rational\n\njury would have found Foster not guilty of capital murder based on\n\nthat testimony and affidavit. Foster, 2005 U.S. Dist. LEXIS\n\n13862, at *48-49.\n\n Foster conceded during oral argument his actual-innocence\n\nclaim is raised here only as a stand-alone claim. As the district\n\ncourt held, actual–innocence is not an independently cognizable\n\nfederal-habeas claim. Dowthitt v. Johnson, 230 F.3d 733, 741-42\n\n(5th Cir. 2000), cert. denied, 532 U.S. 915 (2001); see also Graves\n\nv. Cockrell, 351 F.3d 143, 151 (5th Cir. 2003).\n\n The Supreme Court recently decided House v. Bell, 126 S. Ct.\n\n2064 (2006), a habeas case in which “House, protesting his\n\ninnocence, [sought] access to federal court to pursue habeas corpus\n\nrelief based on constitutional claims that are procedurally barred\n\nunder state law”, id. at 2068; and as a stand-alone claim for such\n\nrelief, id. at 2086. The Court concluded House provided\n\nsubstantial evidence suggesting he might not have committed the\n\nmurder for which he was convicted; and thus held he satisfied the\n\nSchlup standard, enabling him to use his actual–innocence claim to\n\nraise an otherwise procedurally barred habeas claim. Id. at 2087.\n\n The Court, however, “decline[d] to resolve” whether Herrera\n\nleft open the possibility of stand-alone actual–innocence claims.\n\n 14\n\fId. It further stated: even if a stand-alone actual–innocence\n\nclaim were hypothetically cognizable, House was not entitled to\n\nrelief on that basis, despite meeting the Schlup standard. Id. at\n\n2087.\n\n Absent an en banc, or intervening Supreme Court, decision, one\n\npanel of this court may not overrule a prior panel’s decision.\n\nE.g., Hogue v. Johnson, 131 F.3d 466, 491 (5th Cir. 1997), cert.\n\ndenied, 523 U.S. 1014 (1998). Because House did not change the law\n\nto recognize the validity of stand-alone actual–innocence claims,\n\nthis panel may not entertain Foster’s stand-alone claim. E.g.,\n\nDowthitt, 230 F.3d at 741-42. Accordingly, pursuant to the\n\nearlier-described two-prong AEDPA standard for whether to grant a\n\nCOA, Foster is not entitled to a COA on this claim.\n\n B.\n\n In reviewing, under the deferential AEDPA standard, the\n\ndistrict court’s granting conditional habeas relief, its findings\n\nare reviewed for clear error; conclusions of law, de novo. E.g.,\n\nSchaetzle v. Cockrell, 343 F.3d 440, 443 (5th Cir. 2003), cert.\n\ndenied, 540 U.S. 1154 (2004). As discussed, pursuant to AEDPA,\n\nfederal-habeas relief cannot be granted “unless the challenged\n\nstate court proceeding resulted in: (1) ‘a decision that was\n\ncontrary to, or involved an unreasonable application of, clearly\n\nestablished Federal law, as determined by the Supreme Court of the\n\nUnited States’, 28 U.S.C. 2254(d)(1); or (2) ‘a decision that was\n\n 15\n\fbased on an unreasonable determination of the facts in light of the\n\nevidence presented in the State court proceeding’. 28 U.S.C.\n\n2254(d)(2)”. Id. A decision is not unreasonable merely because it\n\nis incorrect; to be unreasonable, it must be both incorrect and\n\nobjectively unreasonable. Miller v. Dretke, 420 F.3d 356, 360 (5th\n\nCir. 2005).\n\n As also discussed, a state court reaches an unreasonable\n\nresult when it correctly identifies the relevant precedent but\n\nunreasonably applies that precedent to the facts. Wiggins v.\n\nSmith, 539 U.S. 510, 520 (2003). Habeas relief will not be granted\n\nwhen the “state court, at a minimum, reaches a satisfactory\n\nconclusion”. Miller, 420 F.3d at 360 (internal quotation omitted).\n\n On direct appeal and in his federal-habeas petition, Foster\n\nclaimed: pursuant to the Eighth Amendment, he was ineligible for\n\nthe death penalty “because he did not kill, attempt to kill, or\n\nintend to kill [Michael] LaHood”. Foster, 2005 U.S. Dist. LEXIS\n\n13862, at *76. At oral argument here, Foster based his Eighth\n\nAmendment challenge largely on the above-described actual–innocence\n\nclaim, asserting he was ineligible for the death penalty because he\n\nwas actually innocent. Because we deny Foster a COA on that claim,\n\nwe do not consider it. Instead, we consider his Eighth Amendment\n\nclaim as presented to, and decided by, both the Court of Criminal\n\nAppeals on direct appeal and the district court.\n\n\n\n\n 16\n\f In rejecting this claim on direct appeal, the Court of\n\nCriminal Appeals held the evidence supported the jury’s finding on\n\nthe following special issue, and with it, the death penalty. See\n\nTCCA opn. at 31-32. That special issue asked whether the jury\n\n“found from the evidence beyond a reasonable doubt that Kenneth\n\nFoster actually caused the deceased’s death, or that he intended to\n\nkill the deceased or another, or that he anticipated that a human\n\nlife would be taken”. Id. at 12 (internal quotation omitted)\n\n(emphasis added). Because it was undisputed that Brown shot\n\nMichael LaHood, the issue relevant to Foster was whether the jury\n\nfound he “anticipated that a human life would be taken”. Id.\n\n The Court of Criminal Appeals had previously rejected similar\n\nclaims in Lawton v. State, 913 S.W.2d 542, 555 (Tex. Crim. App.\n\n1995), because, “before an accused can be convicted of capital\n\nmurder as a party [as Foster was], it must first be determined\n\nbeyond a reasonable doubt that the accused harbored a specific\n\nintent to promote or assist in the commission of intentional\n\nmurder”. TCCA opn. at 32. Therefore, for Foster’s direct appeal,\n\nthe court held it was inconsequential the jury may have found\n\n“Foster only anticipated that death would result” from his\n\nparticipation in the conspiracy. Id.\n\n The district court held this direct-appeal holding\n\nunreasonable under AEDPA. In addressing Foster’s Eighth Amendment\n\nclaim, the court first discussed applicable Supreme Court\n\n 17\n\fprecedent. Enmund, 458 U.S. 782, held the death penalty could not\n\nbe imposed on a getaway driver who not only neither committed\n\nmurder nor intended anyone be killed, but also did not even witness\n\nthe murder. Tison, 481 U.S. at 158, however, created an exception\n\nto Enmund, holding the death sentence constitutional for an\n\naccomplice: (1) whose participation in the crime was major; and (2)\n\nwho displayed “reckless indifference to human life”. Tison upheld\n\nthe death penalty for two brothers who helped arm prisoners for a\n\nsuccessful prison escape; aided that escape; participated in the\n\nrobbery of a family to further the escape; and then did nothing to\n\nstop the murder of that family. Id. at 151.\n\n Relying upon Supreme Court precedent discussed infra, the\n\ndistrict court granted Foster conditional habeas relief because a\n\njury had not made both requisite Tison findings: (1) that Foster\n\nsubstantially participated in the robbery–conspiracy; and (2) that\n\nhe acted with reckless indifference to human life. Foster, 2005\n\nU.S. Dist. LEXIS 13862, at *82-83. In so holding, as also\n\ndiscussed infra, the court held the jury had made the reckless-\n\nindifference finding. It held, however, that the jury had not been\n\nrequired to make the first of the two required findings: that\n\nFoster “had major participation in the felony committed, i.e., the\n\narmed robbery conspiracy that culminated in [Michael] LaHood's\n\nmurder”. Id. at *80 (internal quotation omitted).\n\n\n\n 18\n\f Along this line, the district court did not, however, accept\n\nFoster’s claim that, as the group’s driver, he was per se\n\nineligible for the death penalty. The court ruled a rational jury\n\nunquestionably could have made the above requisite major-\n\nparticipant finding, based on the following evidence: when\n\narrested, Foster had a pair of cellular telephones from robberies\n\ncommitted a few nights before the murder of Michael LaHood; on the\n\nnight Michael LaHood was killed, Foster drove his co-defendants\n\naround neighborhoods with which he was familiar; he shared in the\n\nproceeds of the night’s earlier robberies; no evidence suggested\n\nanyone directed Foster “to take up his extended pursuit” of Mary\n\nPatrick’s vehicle as she drove to Michael LaHood’s house; and Steen\n\nbelieved Foster was in charge that night because he controlled\n\nwhere the conspirators drove and when they stopped. Id. at *81.\n\n Nevertheless, the district court held Apprendi v. New Jersey,\n\n530 U.S. 466 (2000), Ring v. Arizona, 536 U.S. 584 (2002), and\n\nBlakely v. Washington, 542 U.S. 296 (2004), “make clear that only\n\na jury can make the factual determinations necessary to impose a\n\nsentence of death on a criminal defendant”. Id. at *82 (emphasis\n\nadded). Foster’s conviction became final, however, in April 2000\n\n(when the Supreme Court denied review from his direct appeal),\n\nbefore Apprendi, Ring, and Blakely were decided. None of those\n\ncases applies retroactively. Schriro v. Summerlin, 542 U.S. 348,\n\n358 (2004) (Ring does not apply retroactively); In re Elwood, 408\n\n 19\n\fF.3d 211, 213 (5th Cir. 2005)(Apprendi and Blakely do not apply\n\nretroactively). Therefore, they do not apply to this case.\n\n Accordingly, because, as the district court noted, no evidence\n\nsupports finding Foster intentionally murdered Michael LaHood or\n\nintended that he be murdered, the court should have examined the\n\nentire record of the state court proceedings to determine whether\n\nany state court made the requisite Tison/Enmund findings. Clark v.\n\nJohnson, 227 F.3d 273, 281 (5th Cir. 2000), cert. denied, 531 U.S.\n\n1167 (2001).\n\n Similar to the Court of Criminal Appeals’ decision reviewed in\n\nClark, it appears the Court of Criminal Appeals upheld Foster’s\n\ndeath–sentence on a flawed legal theory, based on its 1995 decision\n\nin Lawton. As noted supra, the Court of Criminal Appeals held\n\nthat, before convicting Foster, the jury had to determine he\n\nspecifically intended either to murder Michael LaHood or promote or\n\nassist in that murder. The cases Lawton cites (for example, Tucker\n\nv. State, 771 S.W.2d 523, 530 (Tex. Crim. App. 1988)) discuss the\n\n§ 7.02(a) instruction, which states a defendant tried for capital\n\nmurder as an accomplice is death–penalty eligible only if he\n\nintended to promote or assist in the commission of a capital\n\nmurder. TEX. PENAL CODE § 7.02(a).\n\n Foster's jury was instructed pursuant to both §§ 7.02(a) and\n\n(b). Section 7.02(b) does not require the same level of intent.\n\nIt allowed the jury to convict Foster if it found he should have\n\n 20\n\fanticipated a co-conspirator might commit murder, even if Foster\n\ndid not intend for that murder to occur. TEX. PENAL CODE § 7.02(b).\n\nTherefore, the Court of Criminal Appeals erred by relying on Lawton\n\nto uphold Foster’s death sentence.\n\n As discussed, our review does not end merely because the state\n\ncourt’s decision was based on flawed reasoning. Neal v. Puckett,\n\n286 F.3d 230, 246 (5th Cir. 2002) (federal habeas court reviews\n\nonly a state court’s decision, not the reasoning behind that\n\ndecision), cert. denied, 537 U.S. 1104 (2003). Therefore, as in\n\nClark, we examine the entire state-court record to determine\n\nwhether any state court made the requisite Enmund/Tison findings:\n\n(1) that Foster played a major role in the criminal activities\n\nleading to Michael LaHood’s death; and (2) that he displayed\n\nreckless indifference to human life.\n\n 1.\n\n Addressing the second required finding first, and as the\n\ndistrict court held, Foster obviously displayed reckless\n\nindifference to human life. The jury found as much when it\n\nanswered the earlier-described special issue in the affirmative\n\n(the jury could not answer that issue in the affirmative unless it\n\nfound, at a minimum, Foster anticipated a life would be taken).\n\nThe district court stated:\n\n [I]nsofar as [Foster] argues there was legally\n insufficient evidence showing that he acted\n with reckless disregard for human life, that\n\n\n 21\n\f contention lacks any arguable merit. Foster\n could not have helped but anticipate the\n possibility that a human life would be taken\n in the course of one or more of his co-\n conspirators’ armed robberies. By\n transporting a pair of pot-smoking armed\n robbers to and from one robbery after another,\n Foster clearly displayed the type of “reckless\n disregard for human life” the Supreme Court\n had in mind when it employed that term in\n Tison. Foster knowingly engaged in criminal\n activities known to carry a grave risk of\n death....\n\nFoster, 2005 U.S. Dist. LEXIS 13862, at *78-79 (emphasis added).\n\n 2.\n\n Despite the above-described district-court holding to the\n\ncontrary, there was a state-court finding that Foster played a\n\nmajor role in the criminal activity culminating in Michael LaHood’s\n\nmurder. First, it is at least arguable the jury made that finding.\n\nIn any event, the Court of Criminal Appeals did. Accordingly, its\n\nruling was not unreasonable under AEDPA.\n\n a.\n\n As discussed, the jury was allowed to find Foster guilty of\n\ncapital murder by finding he anticipated a life would be taken, a\n\nlesser standard than requiring intent to kill. Concomitantly, the\n\njury could have used the special issues to find Foster ineligible\n\nfor the death penalty based on his role in the crime. For example,\n\nthe jury found Foster anticipated a life would be taken; but, had\n\nit believed Foster did not play a major role in the activity\n\nleading to Michael LaHood’s murder, it could have found, for\n\n\n 22\n\fanother of the special issues, that he would not likely be\n\ndangerous in the future and, thus, answered that special issue in\n\nthe negative, notwithstanding the evidence presented for Foster’s\n\ncriminal conduct on other occasions.\n\n It did not. Instead, it found Foster anticipated a life would\n\nbe taken and presented a risk of future dangerousness; therefore,\n\nit recommended he receive the death sentence. As discussed, the\n\nspecial issues, however, did not require the jury to find Foster\n\nhad specific intent to kill; nor did they explicitly require the\n\njury to consider the Enmund/Tison requirements. Therefore, as\n\nnoted above, we consider the Court of Criminal Appeals’ direct-\n\nappeal opinion.\n\n b.\n\n That court denied Foster's claim that the evidence was\n\ninsufficient to “support a finding that Foster deliberately engaged\n\nin any culpable conduct that caused death”. Foster v. State, No.\n\n72,853 at 12. It noted the trial evidence demonstrated Foster:\n\n(1) actively participated in the group's robberies; (2) knew\n\nmembers of the group were using a gun to commit them; (3) shared\n\nthe proceeds from them; (4) was the getaway driver; and (5)\n\nexpressed no remorse when Michael LaHood was murdered. Id. at 13.\n\nTherefore, the court held a rational jury could have determined\n\nFoster anticipated a life would be taken. Id. In addition, the\n\ncourt noted: after Brown shot Michael LaHood, Foster “drove him\n\n\n 23\n\faway ... , all the while telling Brown to hide the gun”, id. at 10;\n\nfurther, when police pulled over the vehicle, Foster encouraged\n\nBrown to hide the gun in his underwear, id. at 5.\n\n These rulings demonstrate the Court of Criminal Appeals\n\ndetermined Foster was, inter alia, a major participant in the\n\nnight’s criminal activities, including the robbery and murder of\n\nMichael LaHood. That court, like the jury, rejected Foster’s\n\nclaims that he did not participate in the robberies and did not\n\nknow Brown was planning to rob Michael LaHood.\n\n A death sentence violates the Eighth Amendment if it is not\n\nproportional to the crime for which the defendant was convicted.\n\nSee Tison, 481 U.S. at 148 (noting death sentence for armed robbery\n\nviolates the Eighth Amendment because it is excessive).\n\nFurthermore, as the Supreme Court has held, the death penalty\n\nserves two main purposes: deterrence and retribution. Id. at 148-\n\n49. The rationale of retribution is to hold a criminal defendant\n\nliable in direct proportion to his personal culpability. Id. at\n\n149. Enmund held the death penalty excessive, in violation of the\n\nEighth Amendment, because the defendant’s personal conduct was so\n\nattenuated from the murder it did not warrant that sentence.\n\nEnmund, 458 U.S. at 798. On the other hand, the Court held the\n\nTison brothers’ substantial role in the activities leading to\n\nmurder demonstrated the personal culpability justifying such a\n\nsentence. Tison, 481 U.S. at 158.\n\n 24\n\f In a number of ways, the Court of Criminal Appeals’ rulings\n\nregarding Foster are similar to those noted by the Supreme Court in\n\nupholding the death sentence for the non–shooters in Tison. There,\n\nthe Court discussed the findings by the Arizona Supreme Court,\n\nwhich had noted: “After the killings [the brothers] did nothing to\n\ndisassociate [themselves] from [the shooters], but instead used the\n\nvictims’ car to continue on the joint venture, a venture that\n\nlasted several more days”. Tison, 481 U.S. at 145. In addition,\n\nthe Supreme Court noted the brothers made “no effort to assist the\n\nvictims before, during, or after the shooting”. Id. at 151. Like\n\nthe Tison brothers, Foster did nothing to disassociate himself from\n\nBrown after the shooting; instead, as the Court of Criminal Appeals\n\nnoted, he waited for Brown to return to the car and drove away,\n\nlater telling Brown to hide the murder weapon.\n\n Further, Tison noted both of the death–sentenced non–shooters\n\nassisted, in the prison breakout, a man they “knew had killed a\n\nprison guard in the course of a previous escape attempt”. Id.; see\n\nalso id. at 139 (noting previous escape attempt was “a number of\n\nyears” before the one in issue). The facts in Tison are analogous\n\nto those here. In denying Foster’s claim that the evidence was\n\ninsufficient to support the jury’s affirmative answer to the\n\nfuture-dangerousness special issue, the Court of Criminal Appeals\n\nnoted: a day or two before Michael LaHood was murdered, Foster,\n\nSteen, Dillard, and Brown had participated in another armed\n\n\n 25\n\frobbery, TCCA opn. at 11; and, previously, Foster and a friend shot\n\nat people in a truck while driving alongside them on a highway, id.\n\nat 12. In sum, as stated by the district court, discussed supra,\n\na rational fact finder could have found: Foster was a major\n\nparticipant; and he acted with reckless indifference to human life.\n\nThat the other robbery did not result in a murder in no way\n\nsuggests Foster did not play a major role in either that robbery or\n\nthe one leading to Michael LaHood’s murder. This point is further\n\nsupported by Foster’s having previously fired a weapon into the\n\nmoving vehicle.\n\n As stated above, and pursuant to AEDPA’s deferential standard\n\nof review, because the Court of Criminal Appeals (and arguably the\n\njury) made the requisite Enmund/Tison findings, that court’s\n\ndecision was not unreasonable. Accordingly, the district court\n\nerred in granting Foster habeas relief.\n\n III.\n\n For the foregoing reasons, a COA is DENIED; the conditional\n\nhabeas relief is VACATED; and habeas relief is DENIED.\n\n COA DENIED; CONDITIONAL HABEAS GRANT VACATED;\n\n HABEAS RELIEF DENIED\n\n\n\n\n 26\n\f",
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Fifth Circuit
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Court of Appeals for the Fifth Circuit
|
F
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USA, Federal
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2,385,554 |
Countiss, Dodson, Reynolds
| 1981-12-17 | false |
brown-v-getty-reserve-oil-inc
|
Brown
|
Brown v. Getty Reserve Oil, Inc.
|
Henry Trueheart BROWN, Et Al., Appellants, v. GETTY RESERVE OIL, INC., Et Al., Appellees
|
Lemon, Close, Atkinson & Shearer, Edward L. Atkinson, Amarillo, for appellants., Biggers, Beasley, Amerine & Earle, John C. Biggers, Jeffrey A. Hage, Dallas, Linn, Helms, Kirk & Burkett, J. D. Helms, Oklahoma City, Okl., Underwood, Wilson, Berry, Stein & Johnson, Amarillo, Gassaway, Gur-ley, Sheets & Mitchell, Borger, for appel-lees.
| null | null | null | null | null | null | null |
Rehearing Denied Jan. 20, 1982.
| null | null | 11 |
Published
| null |
<parties id="b846-12">
Henry Trueheart BROWN, et al., Appellants, v. GETTY RESERVE OIL, INC., et al., Appellees.
</parties><br><docketnumber id="b846-15">
No. 9297.
</docketnumber><br><court id="b846-16">
Court of Appeals of Texas, Amarillo.
</court><br><decisiondate id="b846-17">
Dec. 17, 1981.
</decisiondate><br><otherdate id="b846-18">
Rehearing Denied Jan. 20, 1982.
</otherdate><br><attorneys id="b847-17">
<span citation-index="1" class="star-pagination" label="811">
*811
</span>
Lemon, Close, Atkinson & Shearer, Edward L. Atkinson, Amarillo, for appellants.
</attorneys><br><attorneys id="b847-18">
Biggers, Beasley, Amerine & Earle, John C. Biggers, Jeffrey A. Hage, Dallas, Linn, Helms, Kirk & Burkett, J. D. Helms, Oklahoma City, Okl., Underwood, Wilson, Berry, Stein & Johnson, Amarillo, Gassaway, Gur-ley, Sheets & Mitchell, Borger, for appel-lees.
</attorneys><judges id="AfoY">
J. Before REYNOLDS, C. J., and DODSON,
</judges>
|
[
"626 S.W.2d 810"
] |
[
{
"author_str": "Dodson",
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": null,
"author_id": null,
"opinion_text": "\n626 S.W.2d 810 (1981)\nHenry Trueheart BROWN, et al., Appellants,\nv.\nGETTY RESERVE OIL, INC., et al., Appellees.\nNo. 9297.\nCourt of Appeals of Texas, Amarillo.\nDecember 17, 1981.\nRehearing Denied January 20, 1982.\n*811 Lemon, Close, Atkinson & Shearer, Edward L. Atkinson, Amarillo, for appellants.\nBiggers, Beasley, Amerine & Earle, John C. Biggers, Jeffrey A. Hage, Dallas, Linn, Helms, Kirk & Burkett, J. D. Helms, Oklahoma City, Okl., Underwood, Wilson, Berry, Stein & Johnson, Amarillo, Gassaway, Gurley, Sheets & Mitchell, Borger, for appellees.\nBefore REYNOLDS, C. J., and DODSON, J.\nDODSON, Justice.\nIn this interpleader action, the trial court rendered summary judgment unitizing Sections 27 and 29, Block One (1), Cherokee Furnace Company Survey, Hansford County, Texas, for the production of gas from a well located on Section 29. Each of the sections contains 320 acres of land, more or less, and is commonly called a \"Spanish Section.\" There is no producing gas well situated on Section 27. On appeal, the Section 29 royalty owners maintain that the trial court erroneously unitized their interest *812 in Section 29 with Section 27. Agreeing with the Section 29 royalty owners, we affirm in part, reverse and remand in part, and reverse and render in part.\nReserve Oil, Inc., one of the appellees, owns the working interest under an oil and gas lease dated 14 August 1972, which covers Sections 27 and 29.[1] Appellee Permian Corporation has purchased gas from the well on Section 29. The remaining appellees, Caroline Elizabeth Richardson, Julius Pabst, Caroline Adriance Taylor, Douglas B. Taylor, Eva Amanda Taylor, Henry Adriance Taylor, Carroll T. Adriance, David M. Adriance, Jr., Margaret Susan Adriance Pote, James Franklin Parker, Jr., Jack Adriance Parker, Adrienne Poillon Barker, William A. Poillon and Jane A. Huff, own an undivided 1/16th non-participating royalty interest in and to Section 27. The appellants, Henry Trueheart Brown, William Knox Brown, Joseph Chenoweth Brown and Mary Hill Brown Whitcomb, own 2/3rds of an undivided 1/16th non-participating royalty interest in and to Section 29.[2]\nOn 14 August 1972, Grace Thoreson Foster and the trust estate of Arnold L. Thoreson, deceased, owned all of the surface and mineral estate in Sections 27 and 29 except for the outstanding 1/16th non-participating royalty interests in and to such Sections. On that date, Mrs. Thoreson and the trustees of Thoreson Trust executed an oil and gas lease to Dudley R. Stanley covering Sections 27 and 29. The lease contained a unitization provision. However, none of the Section 27 non-participating royalty owners nor any of the Section 29 non-participating royalty owners executed the oil and gas lease. Mr. Stanley assigned the lease, with certain reservations, to Northern Natural Gas Company, which, in turn, assigned the lease, with certain reservations, to Basin Petroleum Corporation. After the assignment from Northern, Basic merged with Reserve Oil, Inc.\nIn 1973, Reserve drilled a well on Section 29, discovered gas, and began producing and selling that gas. Reserve drilled the well without obtaining a unitization agreement from the non-participating royalty owners. After it had begun producing and selling the gas, Reserve attempted to unitize the non-participating royalty interests by a division order. The Section 27 royalty owners executed the division order, but the Section 29 royalty owners, with one exception, refused to execute it. Reserve held in suspense the funds attributable to the 1/16th royalty interest and filed this action.\nIn its original petition, Reserve alleged, among other things, that it is an innocent and disinterested stakeholder, that it \"is or may be exposed to double or multiple liability,\" and that it \"has a reasonable doubt concerning the manner in which the 1/16th [non-participating royalty interest] should be apportioned, if at all, as between the two groups of defendants, and is faced with conflicting claims.\" Reserve tendered into court the funds it alleged to be attributable to the 1/16th royalty interest and asked the court to adjudicate the conflicting claims to those funds.[3]\nHaving purchased some of the gas runs from the well, Permian filed its bill of interpleader in this action. Permian alleged that it is a disinterested stakeholder and that there were conflicting claims to the 1/16th interest. Permian tendered into court the funds it alleged to be attributable to the *813 1/16th royalty interest, requested the court to adjudicate the conflicting claims and prayed for its costs and attorneys' fees.\nIn response to Reserve's action, the Section 29 royalty owners claimed that Reserve was not an innocent and disinterested stakeholder, and they further alleged that they had not ratified, adopted nor confirmed the 14 August 1972 lease and had not approved, condoned nor consented to communication of Sections 27 and 29. They asked the court to determine that the two sections had not been unitized as to their royalty interest. They did not challenge Permian's innocent stakeholder position, but urged again that their royalty interest in Section 29 had not been unitized. The Section 27 royalty owners answered by claiming that the two Sections had been unitized and alleging that they were entitled to apportion their royalty interest across both sections, which would entitle them to ½ of 1/16th of the gas produced from the well located on Section 29.\nAll of the parties filed motions for summary judgment. In their respective motions, the parties claimed that there were no material issues of fact for the court to determine and that the adverse claims presented only questions of law. In its motion, Reserve asked the court to adjudicate the conflicting claims of the Section 27 and 29 royalty owners and award it attorneys' fees and costs. Permian also asked for an adjudication of the conflicting claims, attorneys' fees and costs. The Section 27 and 29 royalty owners claimed that, as a matter of law, they were entitled to prevail on their respective positions. In response to Reserve's motion, the Section 29 royalty owners claimed that Reserve was not an innocent and disinterested stakeholder. Given this joinder of issues, the trial court determined that Sections 27 and 29 were unitized and rendered judgment granting the motions of Reserve, Permian and the Section 27 royalty owners, denying the Section 29 royalty owners' motion, and apportioning the Section 27 and 29 owners' interests across both Sections.\nAppealing from the judgment, the Section 29 royalty owners bring five points of error. Under their third point, they maintain that the trial court erred in granting \"the Appellees' Motion for Summary Judgment\" and in denying their own motion, \"because neither the lessors in the oil and gas lease dated August 14, 1972, nor any other person had the right, power or authority to communitize or consolidate Appellants' royalty interest [in Section 29] with other lands without the express consent of Appellants.\" With their fifth point, they claim the trial court erroneously \"apportioned royalties among all of the royalty owners in the two tracts on an acreage basis.\"\nConversely, the Section 27 royalty owners claim that the trial court correctly granted \"Appellees' Motion for Summary Judgment... since the interests of [the Section 27 and Section 29 royalty owners] were pooled under a valid and enforceable community oil and gas lease.\" In support of their position, the Section 27 royalty owners rely on French v. George, 159 S.W.2d 566 (Tex. Civ.App.Amarillo 1942, writ ref'd), and Parker v. Parker, 144 S.W.2d 303 (Tex.Civ. App.Galveston 1940, writ ref'd). These two cases stand for the principle that if several owners of adjoining tracts of land unite in a single oil and gas lease with a third party for the development of oil or gas as a single oil and gas lease with a third party for the development of oil or gas as a single tract, the royalties contracted for, in the absence of an agreement to the contrary, must be divided among the lessors in the proportion that the area owned by each bears to the total area covered by the lease, and the ownership of the tract upon which a producing well might be placed is of no consequence. That principle is not applicable in this instance.\nIt is undisputed that the Section 29 royalty owners did not execute the 14 August 1972 oil and gas lease from the Thoresons to Stanley. When the oil and gas lease was executed, the Thoresons owned the executive leasing rights to Sections 27 and 29. The Section 29 royalty owners' interest was created in a 1943 deed in which their predecessors in interest conveyed title to Section *814 29 to A. L. Thoreson. That deed reserved to the grantors a 1/16th royalty interest in all of the oil, gas and other minerals in the land. As stated in Brown v. Smith, 141 Tex. 425, 430, 174 S.W.2d 43, 46 (1943), the grantors did not reserve for themselves the right of leasing, and the grantee, therefore, possessed that right, but the grantee was not, as a consequence, authorized to pool the grantors' royalties with royalties from other land that might thereafter be included with it in a lease.\nAs a matter of law, the mere fact that the Thoresons were the holders of the executive leasing rights in and to Section 29 gave them no authority to pool, unitize or communitize the Section 29 royalty owners' interest with royalty interests of other property (i.e., Section 27). As stated in Montgomery v. Rittersbacher, 424 S.W.2d 210, 213 (Tex.1968), \"pooling on the part of the holder of the executive rights cannot be binding upon the non-participating royalty owner in the absence of his consent.\" There is no summary judgment evidence before us to show that the Section 29 royalty owners authorized the Thoresons to pool, unitize, or communitize their interest in Section 29 with Section 27, and the Section 27 royalty owners do not so contend. Under these circumstances, the 14 August 1972 lease executed by the Thoresons to Stanley did not effectuate a pooling, unitization or communitization of the Section 29 royalty owners' interest in Section 29 with Section 27.\nThe Section 27 royalty owners, however, contend that the Section 29 royalty owners ratified the lease through their pleadings by demanding royalties pursuant to the lease in their original answer, cross-action, and motion for summary judgment. The Section 27 royalty owners cite Montgomery for the proposition that a lease can be ratified through pleadings. We acknowledge the correctness of that basic proposition. In the Montgomery case, however, W. R. Montgomery owned a royalty interest in land which was covered by a lease which contained an entirety clause. His interest was purportedly pooled by that clause, even though the lessors had no authority to pool his interest, and the lessors argued that they specifically intended to leave his interest out of the pool. It was to Montgomery's advantage, however, to have his interest governed by the entirety clause, and he first offered to sign a ratification of the lease, then brought suit to enforce his rights under the lease as set out in the entirety clause. The Supreme Court held that bringing suit to enforce an unauthorized act constituted an implied ratification of that act, and Montgomery was entitled to a share of the pooled royalties.\nIn the present case, the Section 29 royalty owners have not attempted to enforce an unauthorized act. In Mathews v. Sun Oil Company, 425 S.W.2d 330, 333 (Tex.1968), the Supreme Court stated that \"[t]he distinction between the inclusion of two tracts in one lease by the holder of a leasing power and the pooling of royalty interests is that the execution of a lease is an authorized act, while pooling and the cross-conveying of royalty interests is an unauthorized act.\" The Section 29 royalty owners acknowledge that the Thoresons had the authority to lease Section 29. In claiming 2/3rds of 1/16th of the production under that authorized lease, they have not ratified the unitization provision of the lease, but have merely claimed what is reserved to them under the 1943 deed. They have not in their pleadings sought to enforce any unauthorized act purportedly pooling their royalty interests. In their pleadings, the Section 29 royalty owners have consistently challenged the authority of the Thoresons or anyone to pool, unitize or communitize their interest without their consent. We conclude that they did not ratify the unitization provision in the lease by their pleadings.\nThe Section 27 royalty owners further argue that the Texas Railroad Commission has a 640-acre gas well spacing requirement, that the acreage in Section 27 was used to meet the spacing requirement, and that \"it is only equitable\" that they be entitled to share in the production from Section 29. They cite no authority for this *815 position. The summary judgment evidence fails to show any action by the section 29 royalty owners which precludes them from exercising their established legal position. We overrule the equity argument.\nLastly, the Section 29 royalty owners assert that Reserve is not an innocent disinterested stakeholder and that the trial court erroneously awarded attorneys' fees to Reserve. When the interpleading party is responsible for the conflicting claims to the funds or property, that party is not entitled to attorneys' fees incurred in interpleading the claimants. See Texas State Bank & Trust Co. v. Patteo, 111 S.W.2d 1157, 1160 (Tex.Civ.App.San Antonio 1937, no writ), and Annotation: Interpleader-Attorney's Fees, 48 A.L.R. 2d 220 (1956). There is some evidence that Reserve was responsible for the conflicting claims. We conclude that Reserve did not conclusively establish its entitlement to attorneys' fees, and summary judgment on that point was improper. The Section 29 royalty owners' contention is sustained.\nAccordingly, we affirm that portion of the trial court's judgment which decrees that the Permian Corporation's motion for summary judgment on its interpleader action is granted and awards the Permian Corporation an attorney's fee of $1,914.00 out of the funds on deposit in the registry of the court. We further affirm that portion of the judgment which decrees that \"Marjorie Williams McCullough, is entitled to ½ × 1/3 × 1/16 of all future royalty payments under the above-described Thoreson # 1 oil and gas lease.\"[4]\nWe reverse that portion of the judgment which decrees that Reserve's motion for summary judgment on its interpleader action is granted and awards Reserve attorneys' fees from the funds on deposit in the registry of the court. Reserve's interpleader action and claim for attorneys' fees is remanded for a trial on the merits.\nWe reverse that portion of the judgment which decrees that the Section 27 royalty owners' motion for summary judgment is granted and awards them ½ of 1/16th of the royalty payments \"under the `Thoreson # 1' oil and gas lease executed on August 14, 1972 and recorded in Volume 66, Page 450, Lease and Contract Records, Hansford County, Texas.\" Judgment is rendered that the Section 27 royalty owners take nothing by their claim.\nWe further reverse that portion of the judgment which decrees that the Section 29 royalty owners' motion for summary judgment is denied and awards them ½ of 2/3 of 1/16th of the royalty payments \"under the above described Thoreson # 1 lease\"; and judgment is rendered that the Section 29 royalty owners own and hold 2/3rds of an undivided 1/16th non-participating royalty interest in and to Section 29, Block One (1), Cherokee Furnace Company Survey, Hansford County, Texas; that such royalty interest is not pooled, unitized or communitized with Section 27, Block One (1), Cherokee Furnace Company Survey, Hansford County, Texas, by virtue of the oil and gas lease dated 14 August 1972, executed by the Thoresons to Stanley; and that the Section 29 royalty owners did not ratify such lease by their pleadings in this action.\nAll of the remaining portions of the judgment which are inconsistent with this court's determination are reversed and decreed to be of no legal effect.[5] All costs are taxed against the Section 27 royalty owners.\nCOUNTISS, J., not participating.\nNOTES\n[1] Reserve Oil, Inc. has changed its name to Getty Reserve Oil, Inc. Reserve's working interest ownership is subject to certain farm-out agreements and overrides which are not material to this action.\n[2] The remaining fractional interest of this 1/16th non-participating royalty interest is owned by Marjorie Williams McCullough, who is not a party to this appeal. That royalty owner executed a division order in which she agreed to the unitization of the two Sections.\n[3] The amount of money which is attributable to the Section 29 royalty owners' interest is the subject of a severed action. By a cross-action against Reserve, Permian and Northern Gas Company, cross-defendants, the Section 29 royalty owners claim that the gas has been and is being sold for less than market value at the well as required by the lease. On Reserve's motion, the cross-action was severed from this action. The severed cross-action is not a part of this appeal.\n[4] On appeal, none of the parties challenged these portions of the judgment. Also, see footnote # 2 concerning the interest of Marjorie Williams McCullough.\n[5] No disposition is made of the funds tendered into court by Reserve and Permian, because the amount of money which is due to the Section 29 royalty owners for their interest in gas produced from the well located on such section is the subject matter of a severed cross-action by these royalty owners against Reserve, Permian and Northern Gas Company, cross-defendants.\n\n",
"ocr": false,
"opinion_id": 2385554
}
] |
Court of Appeals of Texas
|
Court of Appeals of Texas
|
SA
|
Texas, TX
|
130,612 | null | 2003-06-16 | false |
castillo-v-united-states
| null |
Castillo v. United States
|
Castillo v. United States, Jesse v. United States, McNeal v. United States, Nagel v. United States, Rivera v. United States, Sheridan v. United States, and Thomas v. United States
| null | null | null | null | null | null | null | null | null | null | null | 0 |
Published
| null | null |
[
"539 U.S. 936"
] |
[
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": "http://bulk.resource.org/courts.gov/c/US/539/539.US.936.02-10660.html",
"author_id": null,
"opinion_text": "539 U.S. 936\n Castillov.United States,Jessev.United States,McNealv.United States,Nagelv.United States,Riverav.United States,Sheridanv.United States, andThomasv.United States.\n No. 02-10660.\n Supreme Court of United States.\n June 16, 2003.\n \n 1\n Appeal from the C. A. 5th Cir.\n \n \n 2\n Certiorari denied. Reported below: 61 Fed. Appx. 920 (fifth and seventh judgments), 921 (first and second judgments), and 922 (third judgment); 67 Fed. Appx. 245 (fourth judgment) and 246 (sixth judgment).\n \n ",
"ocr": false,
"opinion_id": 130612
}
] |
Supreme Court
|
Supreme Court of the United States
|
F
|
USA, Federal
|
2,678,233 | null | 2014-06-12 | false |
state-v-gavie-julian-garcia
| null |
State v. Gavie Julian Garcia
| 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.isc.idaho.gov/opinions/41389.pdf",
"author_id": null,
"opinion_text": " IN THE COURT OF APPEALS OF THE STATE OF IDAHO\n\n Docket No. 41389\n\nSTATE OF IDAHO, ) 2014 Unpublished Opinion No. 563\n )\n Plaintiff-Respondent, ) Filed: June 12, 2014\n )\nv. ) Stephen W. Kenyon, Clerk\n )\nGAVIE JULIAN GARCIA, aka GAVIE J. ) THIS IS AN UNPUBLISHED\nGARCIA, GABE GARCIA, ) OPINION AND SHALL NOT\n ) BE CITED AS AUTHORITY\n Defendant-Appellant. )\n )\n\n Appeal from the District Court of the Third Judicial District, State of Idaho,\n Canyon County. Hon. Thomas J. Ryan, District Judge.\n\n Order denying I.C.R. 35 motion for reduction of sentence, affirmed.\n\n Sara B. Thomas, State Appellate Public Defender; Kimberly E. Smith, Deputy\n Appellate Public Defender, Boise, for appellant.\n\n Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy\n Attorney General, Boise, for respondent.\n ________________________________________________\n\n Before LANSING, Judge; GRATTON, Judge;\n and MELANSON, Judge\n\nPER CURIAM\n Gavie Julian Garcia, aka Gavie J. Garcia, Gabe Garcia pled guilty to violation of a no-\ncontact order. I.C. § 18-920(3). The district court sentenced Garcia to a unified term of five\nyears, with a minimum period of confinement of two years, but suspended the sentence and\nplaced Garcia on probation. Garcia violated the terms of his probation. The district court\nrevoked Garcia’s probation, but retained jurisdiction. Thereafter the district court relinquished\njurisdiction. Garcia filed an I.C.R 35 motion, which the district court denied. Garcia appeals.\n A motion for reduction of sentence under I.C.R. 35 is essentially a plea for leniency,\naddressed to the sound discretion of the court. State v. Knighton, 143 Idaho 318, 319, 144 P.3d\n23, 24 (2006); State v. Allbee, 115 Idaho 845, 846, 771 P.2d 66, 67 (Ct. App. 1989). In\n\n\n 1\n\fpresenting a Rule 35 motion, the defendant must show that the sentence is excessive in light of\nnew or additional information subsequently provided to the district court in support of the\nmotion. State v. Huffman, 144 Idaho 201, 203, 159 P.3d 838, 840 (2007). Upon review of the\nrecord, including the new information submitted in support of Garcia’s Rule 35 motion, we\nconclude no abuse of discretion has been shown. Therefore, the district court’s order denying\nGarcia’s Rule 35 motion is affirmed.\n\n\n\n\n 2\n\f",
"ocr": false,
"opinion_id": 2678233
}
] |
Idaho Court of Appeals
|
Idaho Court of Appeals
|
SA
|
Idaho, ID
|
1,638,941 |
Shannon, C.J., and Aboussie and Jones
| 1990-12-19 | false |
pinson-v-red-arrow-freight-lines-inc
|
Pinson
|
Pinson v. Red Arrow Freight Lines, Inc.
|
Ron PINSON, Appellant, v. RED ARROW FREIGHT LINES, INC., and Carolina Freight Corporation, Appellees
|
Don Busby, Temple, for appellant., Charles Herring, Jr., Jones, Day, Reevis & Pogue, Austin, Bruce Burleson, and Bowmer, Courtney, Burleson, Normand & Moore, Temple, for appellees.
| null | null | null | null | null | null | null | null | null | null | 21 |
Published
| null |
<parties id="b50-3">
Ron PINSON, Appellant, v. RED ARROW FREIGHT LINES, INC., and Carolina Freight Corporation, Appellees.
</parties><br><docketnumber id="b50-6">
No. 3-90-135-CV.
</docketnumber><br><court id="b50-7">
Court of Appeals of Texas, Austin.
</court><br><decisiondate id="b50-8">
Dec. 19, 1990.
</decisiondate><br><attorneys id="b50-19">
Don Busby, Temple, for appellant.
</attorneys><br><attorneys id="b50-20">
Charles Herring, Jr., Jones, Day, Reevis & Pogue, Austin, Bruce Burleson, and Bowmer, Courtney, Burleson, Normand & Moore, Temple, for appellees.
</attorneys><br><judges id="b50-21">
Before SHANNON, C.J., and ABOUSSIE and JONES, JJ.
</judges>
|
[
"801 S.W.2d 14"
] |
[
{
"author_str": "Shannon",
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": null,
"author_id": 8348,
"opinion_text": "\n801 S.W.2d 14 (1990)\nRon PINSON, Appellant,\nv.\nRED ARROW FREIGHT LINES, INC., and Carolina Freight Corporation, Appellees.\nNo. 3-90-135-CV.\nCourt of Appeals of Texas, Austin.\nDecember 19, 1990.\nDon Busby, Temple, for appellant.\nCharles Herring, Jr., Jones, Day, Reevis & Pogue, Austin, Bruce Burleson, and Bowmer, Courtney, Burleson, Normand & Moore, Temple, for appellees.\nBefore SHANNON, C.J., and ABOUSSIE and JONES, JJ.\nSHANNON, Chief Justice.\nAppellant Ron Pinson complains of the judgment of the district court of Bell County rendered after a jury trial. By its judgment, the district court ordered that Pinson recover $8,916.66 from appellee Red Arrow Freight Lines, Inc. for its violation of the Deceptive Trade Practices Act. Pursuant to the answers of the jury, the district court further rendered judgment that Pinson recover no attorney's fees.\nPinson and Red Arrow entered into an agreement by which Pinson would serve as Red Arrow's agent, or terminal manager, for its shipping business in Bell and Milam Counties. Pinson claimed, among other things, that Red Arrow promised him the exclusive business of several clients in that service area and that, once he had established his operation, neither Red Arrow nor any of its subsidiaries would venture into those two counties without compensating *15 him. Pinson asserted further that he was guaranteed a minimum level of income from this operation when, in fact, it was a money-losing venture. Pinson alleged that Red Arrow's failure to carry out these promises violated the DTPA and was a producing cause of his losses.\nThe jury determined that Red Arrow's actions were a producing cause of Pinson's damages. On the other hand, the jury answered that Pinson failed to mitigate his damages and, that had he taken steps to mitigate, his losses would have been completely avoided.[1]\nRed Arrow moved for judgment that Pinson take nothing. Red Arrow grounded its motion upon the jury's answers to the questions concerning Pinson's failure to mitigate. The district court overruled Red Arrow's motion for judgment.\nAs the appeal reaches this Court, Pinson claims error by the court in failing to render judgment awarding him attorney's fees and Red Arrow asserts by cross-point that the court erred in rendering judgment for Pinson in light of the jury's determinations on the mitigation questions. We have concluded that Red Arrow's cross-point is dispositive f the appeal.\nThe question for resolution is whether a consumer under the DTPA owes a duty to mitigate his damages and, if he does, what are the consequences if the duty is breached.\nIn a DTPA suit, the prevailing plaintiff is entitled to \"actual damages.\" Tex.Bus. and Com.Code § 17.50(b)(1) (1987). \"Actual damages\" are defined as those damages recoverable at common law. W.O. Bankston Nissan v. Walters, 754 S.W.2d 127, 128 (Tex.1988); Brown v. American Transfer and Storage Co., 601 S.W.2d 931, 939 (Tex.1980); Great State Petroleum v. Arrow Rig Sendee, 706 S.W.2d 803, 807 (Tex.App. 1986), affd, 714 S.W.2d 429 (1986). The common law recognizes a duty on the part of an injured party to mitigate his damages. Hycel, Inc. v. Wittstruck, 690 S.W.2d 914, 924 (Tex.App.1985, writ dism'd); Town East Ford Sales v. Gray, 730 S.W.2d 796 (Tex.App. 1987, no writ). Accordingly, we conclude that a claimant under the DTPA, likewise, owes a duty to minimize his losses.\nWhen an injured party fails to comply with the duty to mitigate damages, recovery is not permitted as to that part of damages that could have been avoided or was incurred as a result of the failure to mitigate. Alexander and Alexander v. Bacchus Industries, 754 S.W.2d 252, 253 (Tex.App. 1988, writ denied); R.A. Corbett Transport v. Oden, 678 S.W.2d 172, 176 (Tex.App. 1984, no writ); Henderson v. Otto Goedecke, Inc., 430 S.W.2d 120, 123 *16 (Tex.Civ.App.1968, writ ref'd n.r.e.). The burden of proof with respect to whether the plaintiff failed to mitigate and the extent to which his failure to mitigate caused or increased the damages, is upon the party who caused the loss. Town East Ford v. Gray, 730 S.W.2d at 806; Cocke v. White, 697 S.W.2d 739, 744 (Tex.App.1985, writ ref'd n.r.e.); United Furniture and Appliance v. Johnson, 456 S.W.2d 455, 459 (Tex. Civ.App. 1970, no writ).\nIn the instant appeal, the jury determined that Pinson failed to mitigate his damages and that, had he done so, he would have suffered no loss. Accordingly, Pinson was not entitled to a judgment for damages. We sustain Red Arrow's crosspoint.\nThe judgment is reversed and judgment is here rendered that Pinson take nothing.\nNOTES\n[1] The court submitted the matter of mitigation by questions 14 and 15:\n\nQUESTION NO. 14\nDO YOU FIND FROM A PREPONDERANCE OF THE EVIDENCE THAT RON PINSON FAILED TO EXERCISE REASONABLE CARE AND DILIGENCE TO AVOID OR MINIMIZE HIS DAMAGES, IF ANY?\nIN CONNECTION WITH THIS QUESTION, YOU ARE INSTRUCTED THAT A PERSON IS REQUIRED TO EXERCISE REASONABLE CARE AND DILIGENCE TO AVOID LOSS AND TO MINIMIZE THE CONSEQUENCES OF DAMAGES. IF WITH REASONABLE CARE AND DILIGENCE HE CAN DO SO, HE MUST PROTECT HIMSELF FROM THE IJURIOUS CONSEQUENCES OF THE ACT OF ANOTHER. AND IF HE FAILS TO DO SO AND BY REASON OF HIS FAILURE, HIS DAMAGES BECOME AGGRAVATED, HE MAY NOT RECOVER FOR SUCH PART OF THE DAMAGES AS MAY BE ATTRIBUTED TO HIS OMISSION TO TAKE PREVENTIVE MEASURES AND HIS RECOVERY WILL BE LIMITED ONLY TO THOSE DAMAGES THAT WOULD HAVE RESULTED HAD HE FUFILLED HIS DUTY.\nANSWER \"YES\" OR \"NO\".\nANSWER: YES\nIF YOU HAVE ANSWERED \"YES\" TO QUETION NO. 14, ANSWER QUESTION NO. 15, OTHERWISE, DO NOT ANSWER QUESTION NO. 15.\nQUESTION NO. 15\nWHAT AMOUNT, IF ANY, WOULD HAVE BEEN THE DAMAGES, IF ANY, SUFFERED BY RON PINSON, IF HE HAD EXERCISED REASONABLE CARE AND DILIGENCE TO AVOID OR MINIMIZE HIS DAMAGES? ANSWER IN DOLLARS AND CENTS, IF ANY\nANSWER: $ NONE\n\n",
"ocr": false,
"opinion_id": 1638941
}
] |
Court of Appeals of Texas
|
Court of Appeals of Texas
|
SA
|
Texas, TX
|
2,678,245 |
Fletcher, Nguyen, Tashima
| 2014-06-12 | false |
barone-v-merscorp-inc
|
Merscorp
|
Barone v. Merscorp, Inc.
|
In Re: MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., Lady Jennifer Barone, Plaintiff-Appellant, v. Merscorp, Inc.; Et Al., Defendants-Appellees
|
William A. Nebeker, Esquire, Valerie R. Edwards, Koeller Nebeker Carlson & Ha-luck, LLP, Phoenix, AZ, Robert Hager, Treva Hearne, Esquire, General, Hager & Hearne, Reno, NV, for Plaintiff-Appellant., Robert M. Brochin, Morgan, Lewis & Boekius LLP, Miami, FL, James R. Condo, Esquire, Snell & Wilmer L.L.P., Douglas Erickson, Jennifer Reiter, Phoenix, AZ, Danielle Jean Gould, Esquire, Leann Ped-ersen Pope, Esquire, Burke, Warren, Mac-Kay & Serritella, P.C., Chicago, IL, for Defendants-Appellees.
|
Civil
| null | null | null | null | null | null |
Submitted Nov. 8, 2013.*
| null | null | 0 |
Unpublished
| null |
<parties id="b732-16">
In re: MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.,
<span citation-index="1" class="star-pagination" label="707">
*707
</span>
Lady Jennifer Barone, Plaintiff-Appellant, v. Merscorp, Inc.; et al., Defendants-Appellees.
</parties><br><docketnumber id="b733-7">
No. 12-16449.
</docketnumber><br><court id="b733-8">
United States Court of Appeals, Ninth Circuit.
</court><br><otherdate id="b733-9">
Submitted Nov. 8, 2013.
<a class="footnote" href="#fn*" id="fn*_ref">
*
</a>
</otherdate><br><decisiondate id="b733-10">
Filed June 12, 2014.
</decisiondate><br><attorneys id="b733-11">
William A. Nebeker, Esquire, Valerie R. Edwards, Koeller Nebeker Carlson
<em>
&
</em>
Ha-luck, LLP, Phoenix, AZ, Robert Hager, Treva Hearne, Esquire, General, Hager & Hearne, Reno, NV, for Plaintiff-Appellant.
</attorneys><br><attorneys id="b733-12">
Robert M. Brochin, Morgan, Lewis & Boekius LLP, Miami, FL, James R. Condo, Esquire, Snell & Wilmer L.L.P., Douglas Erickson, Jennifer Reiter, Phoenix, AZ, Danielle Jean Gould, Esquire, Leann Ped-ersen Pope, Esquire, Burke, Warren, Mac-Kay & Serritella, P.C., Chicago, IL, for Defendants-Appellees.
</attorneys><br><judges id="b733-14">
Before: TASHIMA, W. FLETCHER, and NGUYEN, Circuit Judges.
</judges><div class="footnotes"><div class="footnote" id="fn*" label="*">
<a class="footnote" href="#fn*_ref">
*
</a>
<p id="b733-18">
The panel unanimously concludes this case is suitable for decision without oral argument.
<em>
See
</em>
Fed. R.App. P. 34(a)(2).
</p>
</div></div>
|
[
"578 F. App'x 706"
] |
[
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": 3,
"download_url": "http://cdn.ca9.uscourts.gov/datastore/memoranda/2014/06/12/12-16449.pdf",
"author_id": null,
"opinion_text": " NOT FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS FILED\n FOR THE NINTH CIRCUIT JUN 12 2014\n\n MOLLY C. DWYER, CLERK\n U.S. COURT OF APPEALS\n\nIn re: MORTGAGE ELECTRONIC No. 12-16449\nREGISTRATION SYSTEMS, INC.,\n D.C. No. 2:09-md-02119-JAT\n\nLADY JENNIFER BARONE,\n MEMORANDUM*\n Plaintiff - Appellant,\n\n v.\n\nMERSCORP, INC.; et al.,\n\n Defendants - Appellees.\n\n\n Appeal from the United States District Court\n for the District of Arizona\n James A. Teilborg, Senior District Judge, Presiding\n\n Submitted November 8, 2013**\n San Francisco, California\n\nBefore: TASHIMA, W. FLETCHER, and NGUYEN, Circuit Judges.\n\n\n\n\n *\n This disposition is not appropriate for publication and is not precedent\nexcept as provided by 9th Cir. R. 36-3.\n **\n The panel unanimously concludes this case is suitable for decision\nwithout oral argument. See Fed. R. App. P. 34(a)(2).\n\f Appellant Lady Barone challenges the district court’s dismissal of her\n\nclaims. We review dismissal for failure to state a claim de novo, Akhtar v. Mesa,\n\n698 F.3d 1202, 1212 (9th Cir. 2012), and reverse in part and affirm in part.\n\n Appellant’s claims were dismissed, in the first instance, because they were\n\npremised on the erroneous legal theory that assignments of the deed within the\n\nMortgage Electronic Registration System (“MERS”) were invalid under Arizona\n\nlaw because the note was “split” from the deed. That theory was rejected by our\n\nholding that, under Arizona law, “the split only renders the mortgage\n\nunenforceable if MERS or the trustee, as nominal holders of the deeds, are not\n\nagents of the lenders.” Cervantes v. Countrywide Home Loans, 656 F.3d 1034,\n\n1044 (9th Cir. 2011). Seizing on this language, Barone maintains she has alleged\n\nthe trustee was not an authorized agent of the lender. The district court correctly\n\ndeclined to accept that legal conclusion, which is unsupported by alleged facts, and\n\ncontradicted by the clear language on the face of the deed itself (which was\n\nattached to Barone’s pleading). Fed. R. Civ. P. 12(b)(6); Papasan v. Allain, 478\n\nU.S. 265, 286 (1986).\n\n The district court also correctly noted, with respect to Barone’s claim for\n\nwrongful foreclosure, that this tort is unrecognized in Arizona. Cervantes, 656\n\nF.3d at 1043. And, even assuming it were a viable theory, it does not appear from\n\n\n 2\n\fthe record that Barone can, in good faith, allege satisfaction of the traditional\n\nprerequisite, adopted by other states, that any default must be formally cured.\n\nBecause these defects cannot be cured by further amendment, the district court\n\nproperly denied leave to amend as futile. Eminence Capital, LLC v. Aspeon, Inc.,\n\n316 F.3d 1048, 1051–52 (9th Cir. 2003).\n\n The district court erred, however, in dismissing Barone’s claim for recording\n\nfalse documents, under Arizona Revised Statutes § 33-420. The court held that the\n\nstatute does not apply to assignments that do not originate a new property interest,\n\nbut Stauffer v. U.S. Bank National Ass’n, 308 P.3d 1173, 1175 (Ariz. Ct. App.\n\n2013), holds, to the contrary, that section 33-420 applies to notices of substitution\n\nof trustee, and assignments of deeds. Alternatively, the court held that Barone\n\nlacked standing to assert a claim; but, the Arizona courts have rejected that\n\nargument as well. Sitton v. Deutsche Bank Trust Co., 311 P.3d 237, 241 (Ariz. Ct.\n\nApp. 2013); see also In re Mortgage Elec. Registration Sys., Inc., No. 11-17615,\n\nSlip op. at 18, 20. We therefore reverse the dismissal of Barone’s false documents\n\nclaim and remand to the district court for further proceedings.\n\n Each side to bear its own costs on appeal.\n\n AFFIRMED IN PART; AND REVERSED AND REMANDED IN\n\nPART.\n\n\n 3\n\f",
"ocr": false,
"opinion_id": 2678245
}
] |
Ninth Circuit
|
Court of Appeals for the Ninth Circuit
|
F
|
USA, Federal
|
846,748 |
Marilyn J. Kelly
| 2006-03-22 | false |
people-v-memmer
|
MEMMER
|
People v. MEMMER
| null | null | null | null | null | null | null | null | null | null | null | null | 1 |
Published
| null | null |
[
"711 N.W.2d 43",
"474 Mich. 1086"
] |
[
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": 1,
"download_url": "http://publicdocs.courts.mi.gov:81/SCT/PUBLIC/ORDERS/20060322_S129499_62_129499_2006-03-22_or.pdf",
"author_id": 4782,
"opinion_text": "\n711 N.W.2d 43 (2006)\n474 Mich. 1086\nPEOPLE of the State of Michigan, Plaintiff-Appellee,\nv.\nMelissa Anne MEMMER, Defendant-Appellant.\nDocket No. 129499, COA No. 254839.\nSupreme Court of Michigan.\nMarch 22, 2006.\nOn order of the Court, the application for leave to appeal the August 11, 2005 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.\nMARILYN J. KELLY, J., would remand this case to the trial court for resentencing in accordance with People v. Babcock, 469 Mich. 247, 666 N.W.2d 231 (2003).\n",
"ocr": false,
"opinion_id": 846748
}
] |
Michigan Supreme Court
|
Michigan Supreme Court
|
S
|
Michigan, MI
|
379,659 | null | 1980-06-26 | false |
united-states-v-szwanki
|
Szwanki
|
United States v. Szwanki
| null | null | null | null | null | null | null | null | null | null | null | null | 0 |
Published
| null | null |
[
"624 F.2d 1092"
] |
[
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": "http://bulk.resource.org/courts.gov/c/F2/624/624.F2d.1092.79-1478.html",
"author_id": null,
"opinion_text": "624 F.2d 1092\n U. S.v.Szwanki\n 79-1478\n UNITED STATES COURT OF APPEALS Third Circuit\n 6/26/80\n \n 1\n E.D.Pa.\n \n VACATED AND REMANDED\n ",
"ocr": false,
"opinion_id": 379659
}
] |
Third Circuit
|
Court of Appeals for the Third Circuit
|
F
|
USA, Federal
|
555,776 |
Cardamone, Feinberg, Kaufman
| 1991-04-02 | false |
united-states-v-raoul-rivalta-and-fausto-rivalta
| null |
United States v. Raoul Rivalta and Fausto Rivalta
|
UNITED STATES of America, Appellee, v. Raoul RIVALTA and Fausto Rivalta, Defendants-Appellants
|
Peter J. Kahn, Washington, D.C. (Williams & Connolly, Thomas J. Murphy, of counsel), for defendants-appellants., J. Gilmore Childers, New York City, Asst. U.S. Atty. S.D. New York (Otto G. Obermaier, U.S. Atty. S.D. New York, David E. Brodsky, Asst. U.S. Atty., Peter M. Kougasian, Sp. Asst. U.S. Atty., of counsel), for appellee.
| null | null | null | null | null | null | null |
Argued Jan. 29, 1991., As Amended on Denial of Rehearing April 2, 1991.
| null | null | 23 |
Published
| null |
<parties id="b698-3">
UNITED STATES of America, Appellee, v. Raoul RIVALTA and Fausto Rivalta, Defendants-Appellants.
</parties><docketnumber id="AQX">
No. 180, Docket 90-1268.
</docketnumber><court id="AmOu">
United States Court of Appeals, Second Circuit.
</court><otherdate id="AsM">
Argued Jan. 29, 1991.
</otherdate><decisiondate id="AGZB">
Decided Feb. 12, 1991.
</decisiondate><otherdate id="A-dm">
As Amended on Denial of Rehearing April 2, 1991.
</otherdate><br><attorneys id="b698-21">
Peter J. Kahn, Washington, D.C. (Williams & Connolly, Thomas J. Murphy, of counsel), for defendants-appellants.
</attorneys><br><attorneys id="b698-22">
J. Gilmore Childers, New York City, Asst. U.S. Atty. S.D. New York (Otto G. Obermaier, U.S. Atty. S.D. New York, David E. Brodsky, Asst. U.S. Atty., Peter M. Kougasian, Sp. Asst. U.S. Atty., of counsel), for appellee.
</attorneys><br><judges id="b698-23">
Before KAUFMAN, FEINBERG, and CARDAMONE, Circuit Judges.
</judges>
|
[
"925 F.2d 596"
] |
[
{
"author_str": "Feinberg",
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": "http://bulk.resource.org/courts.gov/c/F2/925/925.F2d.596.90-1268.180.html",
"author_id": null,
"opinion_text": "925 F.2d 596\n UNITED STATES of America, Appellee,v.Raoul RIVALTA and Fausto Rivalta, Defendants-Appellants.\n No. 180, Docket 90-1268.\n United States Court of Appeals,Second Circuit.\n Argued Jan. 29, 1991.Decided Feb. 12, 1991.As Amended on Denial of RehearingApril 2, 1991.\n \n Peter J. Kahn, Washington, D.C. (Williams & Connolly, Thomas J. Murphy, of counsel), for defendants-appellants.\n J. Gilmore Childers, New York City, Asst. U.S. Atty. S.D. New York (Otto G. Obermaier, U.S. Atty. S.D. New York, David E. Brodsky, Asst. U.S. Atty., Peter M. Kougasian, Sp. Asst. U.S. Atty., of counsel), for appellee.\n Before KAUFMAN, FEINBERG, and CARDAMONE, Circuit Judges.\n FEINBERG, Circuit Judge:\n \n \n 1\n Raoul and Fausto Rivalta appeal from amended judgments of conviction filed on April 12, 1990 in the United States District Court for the Southern District of New York, Kevin T. Duffy, J., after their prior appeals to this court resulted in a remand for resentencing. United States v. Rivalta, 892 F.2d 223 (2d Cir.1989). Our prior opinion includes, and we do not repeat here, a detailed description of the factual background of this case, as well as an analysis of the evidence supporting the convictions and the sentences. Familiarity with our prior opinion is assumed.\n \n \n 2\n The Rivaltas were convicted in separate jury trials of the interstate transportation of a stolen diamond in violation of 18 U.S.C. Sec. 2314 and the sale of the diamond in violation of 18 U.S.C. Sec. 2315. When the Rivaltas were originally sentenced in March and April 1989, the district court departed from the applicable range under the United States Sentencing Guidelines (U.S.S.G.) of approximately two years and sentenced each defendant to the statutory maximum of 10 years on each count, to be served consecutively. The district judge based this departure on his finding that the offenses of conviction were \"intertwined\" with the death of the original consignee of the stolen diamond, Barbara Mangiameli, and found authority to depart in U.S.S.G. Sec. 5K2.1, which identifies death as a factor that may warrant an increase from the guideline range. On appeal, this court affirmed the Rivaltas' convictions, but held that on the facts of this case, an upward departure under U.S.S.G. Sec. 5K2.1 would be warranted only if defendants had \"intended\" or \"knowingly risked\" Mangiameli's death. We therefore remanded for further findings with regard to the sentences and reconsideration of the sentences and instructed that any further appeal should be assigned to the same panel, if practicable.\n \n \n 3\n In April 1990, the district court made additional findings and reimposed the same sentences. This appeal, pursuant to our instruction, now comes before the panel that heard the prior appeal. Appellants again challenge their sentences, and also claim that they are entitled to a new trial because of the government's belated disclosure of exculpatory evidence shortly before resentencing. For the reasons set forth below, we affirm.\n \n 1. The Brady Issue\n \n 4\n Shortly before appellants were scheduled to be resentenced, the government first disclosed a police report to the defense. According to the report, a friend of Mangiameli, Irene Goldsmith, had told the police over the telephone that she had seen Mangiameli walking on a Manhattan street some 30 hours after she was allegedly last seen talking to Fausto Rivalta on their apartment building intercom. Appellants argue that the government should have disclosed this information prior to trial pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and the government concedes that it would have been \"prudent practice\" to do so. The parties also agree that if the information withheld is \"material,\" defendants are entitled to a new trial. The sole issue, then, on appellants' Brady claim is whether the Goldsmith statement was \"material\" to their guilt.\n \n \n 5\n In the context of an alleged Brady violation, \" '[e]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A \"reasonable probability\" is a probability sufficient to undermine confidence in the outcome.' \" Pennsylvania v. Ritchie, 480 U.S. 39, 57, 107 S.Ct. 989, 1001, 94 L.Ed.2d 40 (1987) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985) (opinion of Blackmun, J.)); see also United States v. Bagley, 473 U.S. at 685, 105 S.Ct. at 3385 (opinion of White, J.); Miller v. Angliker, 848 F.2d 1312, 1320 (2d Cir.), cert. denied, 488 U.S. 890, 109 S.Ct. 224, 102 L.Ed.2d 214 (1988). Appellants argue that the Goldsmith statement would have created reasonable doubt in the minds of the jury, and that there is thus a \"reasonable probability\" that \"the result of the proceeding would have been different.\"\n \n \n 6\n The district judge, who presided over the trials of both Rivaltas as well as the sentencing proceedings both before and after remand, denied defendants' motion for a new trial, stating that in his view the Goldsmith statement would not \"create[ ] reasonable doubt at all.\" We have noted that the trial judge's conclusion as to the effect of nondisclosure on the outcome of the trial is \"entitled to great weight\" because \"[a]fter all, [he] was at the trial. We were not.\" United States v. Provenzano, 615 F.2d 37, 49 (2d Cir.), cert. denied, 446 U.S. 953, 100 S.Ct. 2921, 64 L.Ed.2d 810 (1980); see also United States v. Petrillo, 821 F.2d 85, 88 (2d Cir.1987). Relying solely on Provenzano and Petrillo, the government contends that \"[l]ike other factual determinations, the District Court's findings as to materiality should not be disturbed unless clearly erroneous.\" However, in those cases we conducted our own \"independent examination\" of the materiality of the undisclosed information. United States v. Provenzano, 615 F.2d at 49; United States v. Petrillo, 821 F.2d at 89-90. In other cases where the ultimate question is whether alleged prosecutorial misconduct was likely to have affected the outcome, we have similarly made an \"independent examination\" of the record. See, e.g., Mills v. Scully, 826 F.2d 1192, 1195 (2d Cir.1987).\n \n \n 7\n We have thus treated the materiality of an alleged Brady violation not, as the government contends, as a purely factual issue, but as a mixed question of law and fact, consistent with the holdings of a number of other circuits. See, e.g., United States v. Buchanan, 891 F.2d 1436, 1440 (10th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1829, 108 L.Ed.2d 958 (1990); Carter v. Rafferty, 826 F.2d 1299, 1306 (3d Cir.1987), cert. denied, 484 U.S. 1011, 108 S.Ct. 711, 98 L.Ed.2d 661 (1988). Moreover, the Supreme Court's formulation of the materiality inquiry--whether there is a reasonable probability that the result of the proceeding would have been different--is derived from a case in which the Court had explicitly held that the same inquiry in a different context presented a mixed question of law and fact. See United States v. Bagley, 473 U.S. at 682, 105 S.Ct. at 3383 (opinion of Blackmun, J.) (citing Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984)); Strickland v. Washington, 466 U.S. at 698, 104 S.Ct. at 2070. We therefore reject the government's suggestion that we employ the \"clearly erroneous\" standard of review.\n \n \n 8\n Nevertheless, we agree with the district court that the alleged Brady violation here was not \"material.\" We note that appellants do not argue that nondisclosure of the Goldsmith statement foreclosed other lines of inquiry, thereby depriving them of other evidence. Nor do they argue that Goldsmith's statement would have been confirmed or strengthened by her testimony; indeed, they decided not to subpoena her to the sentencing hearing. Appellants rely solely on the statement itself; they principally argue that the government's case against them was built on inferences from the chronology of events and that Goldsmith's statement destroys that chronology because it shows that Mangiameli was \"alive and well at a time when the Rivalta brothers supposedly were fleeing Manhattan.\" Appellants also contend that the Goldsmith statement supports the testimony of defense witness Hodges at Fausto Rivalta's trial that he saw Mangiameli with Fausto Rivalta in Florida at about the time the Rivaltas sold the diamond there, suggesting that Mangiameli herself transported the diamond to Florida.\n \n \n 9\n However, even if Goldsmith's statement indicating that Mangiameli was \"alive and well\" on February 5, 1988 when the Rivaltas were attempting to leave Manhattan had been admitted, its impact at trial would have been greatly diminished by other compelling evidence that Mangiameli disappeared on February 4, 1988.\n \n \n 10\n In any event, the parties concentrated at trial, as they should have, on the elements of the crimes with which defendants were charged. Indeed, the government emphasized in its summations at both trials that it was not attempting to show precisely how the diamond was transferred from Barbara Mangiameli to the Rivaltas. The government told the jury, and the judge repeated in his charge, that such proof was not necessary for the alleged crimes at issue. After reviewing the evidence presented at trial, which is summarized in our prior opinion, see United States v. Rivalta, 892 F.2d at 224-26, we do not find the brief police report of the Goldsmith telephone call sufficient to \"undermine confidence in the outcome\" of the Rivaltas' trials.\n \n 2. The Sentences\n \n 11\n With regard to the reimposed sentences, appellants rely heavily on the Goldsmith statement and renew the argument they made on their prior appeal that the evidence is insufficient to support a finding by a preponderance of the evidence that the Rivaltas were responsible for Mangiameli's death. See id. at 230. We rejected this argument previously, see id. at 231, and we are not persuaded otherwise by the Goldsmith statement.\n \n \n 12\n We come, finally, to our original reason for remanding this case. As noted above, we held that on the facts of this case, an upward departure under Sec. 5K2.1 for the death of Mangiameli would be warranted only if the Rivaltas had \"intended\" or \"knowingly risked\" her death. The district court made more findings regarding the circumstances of Mangiameli's death than our remand required, some of which defendants persuasively challenge. We need not, however, consider these additional findings. Our remand was based on the absence of an explicit finding by the court that the defendants had \"intended\" or \"knowingly risked\" Mangiameli's death. After remand, the district judge made such a finding, which is not itself clearly erroneous. Therefore, we find that the upward departure was authorized by U.S.S.G. Sec. 5K2.1. In light of this determination, we need not consider the parties' arguments as to whether other sections of the Guidelines authorizing upward departure would also apply.\n \n \n 13\n We have considered all of appellants' arguments, and we affirm the amended judgments of the district court as to both appellants.\n \n ",
"ocr": false,
"opinion_id": 555776
}
] |
Second Circuit
|
Court of Appeals for the Second Circuit
|
F
|
USA, Federal
|
2,678,280 |
Higginbotham, Higginson, Owen
| 2014-06-12 | false |
united-states-v-desmond-jones
| null |
United States v. Desmond Jones
|
UNITED STATES of America, Plaintiff-Appellee, v. Desmond Deon JONES, Defendant-Appellant
|
Julia Bowen Stem, Assistant U.S. Attorney, Renata Ann Gowie, Assistant U.S. Attorney, Eileen K. Wilson, Assistant U.S. Attorney, U.S. Attorney’s Office, Houston, TX, for Plaintiff-Appellee., Marjorie A. Meyers, Federal Public Defender, Timothy William Crooks, Assistant Federal Public Defender, Margaret Christina Ling, Assistant Federal Public Defender, Molly Estelle Odom, Esq., Assistant Federal Public, Federal Public Defender’s Office, Houston, TX, for Defendant-Appellant.
| null | null | null | null | null | null | null | null | null | null | 0 |
Published
| null |
<parties id="b1063-7">
UNITED STATES of America, Plaintiff-Appellee, v. Desmond Deon JONES, Defendant-Appellant.
</parties><br><docketnumber id="b1063-10">
No. 12-40877.
</docketnumber><br><court id="b1063-11">
United States Court of Appeals, Fifth Circuit.
</court><br><decisiondate id="b1063-13">
June 12, 2014.
</decisiondate><br><attorneys id="b1063-28">
Julia Bowen Stem, Assistant U.S. Attorney, Renata Ann Gowie, Assistant U.S. Attorney, Eileen K. Wilson, Assistant U.S. Attorney, U.S. Attorney’s Office, Houston, TX, for Plaintiff-Appellee.
</attorneys><br><attorneys id="b1063-29">
Marjorie A. Meyers, Federal Public Defender, Timothy William Crooks, Assistant Federal Public Defender, Margaret Christina Ling, Assistant Federal Public Defender, Molly Estelle Odom, Esq., Assistant Federal Public, Federal Public Defender’s Office, Houston, TX, for Defendant-Appellant.
</attorneys><br><judges id="b1063-31">
Before HIGGINBOTHAM, OWEN, and HIGGINSON, Circuit Judges.
</judges>
|
[
"752 F.3d 1039"
] |
[
{
"author_str": "Owen",
"per_curiam": false,
"type": "010combined",
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"opinion_text": " Case: 12-40877 Document: 00512661408 Page: 1 Date Filed: 06/12/2014\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n No. 12-40877 FILED\n June 12, 2014\n Lyle W. Cayce\nUNITED STATES OF AMERICA, Clerk\n\n Plaintiff–Appellee,\nv.\n\nDESMOND DEON JONES,\n\n Defendant–Appellant.\n\n\n\n\n Appeal from the United States District Court\n for the Southern District of Texas\n\n\n\nBefore HIGGINBOTHAM, OWEN, and HIGGINSON, Circuit Judges.\nPRISCILLA R. OWEN, Circuit Judge:\n Desmond Deon Jones, convicted as a felon unlawfully in possession of a\nfirearm, challenges his sentence, contending that the district court erred in\nconcluding that his prior federal conviction for escaping from the custody of the\nBureau of Prisons by leaving a halfway house was a “crime of violence” within\nthe meaning of Sentencing Guidelines § 4B1.2(a). 1 We vacate the sentence and\nremand.\n\n\n I\n\n\n1 U.S. SENTENCING GUIDELINES MANUAL (“U.S.S.G.”) § 4B1.2(a) (2011).\n\f Case: 12-40877 Document: 00512661408 Page: 2 Date Filed: 06/12/2014\n\n\n\n No. 12-40877\n Jones was convicted of possession of a firearm by a felon. 2 The\npresentence report recommended a base offense level of 20 under\n§ 2K2.1(a)(4)(A), based on the presentencing officer’s conclusion that Jones had\na prior felony conviction for a “crime of violence,” as defined in § 4B1.2(a). 3 The\nprior felony conviction was under 18 U.S.C. § 751(a) for leaving a halfway\nhouse. The indictment underlying that conviction alleged that Jones\n“knowingly escape[d] from the custody of the Bureau of Prisons, by absconding\nfrom Dismas Halfway House in Corpus Christi, Texas, an institutional facility\nin which he was lawfully confined . . . .” Jones objected to the presentence\nreport, arguing that this prior conviction did not constitute a crime of violence\nand therefore, that the base offense level should be 14, which, with a Criminal\nHistory Category of VI, would result in an advisory Sentencing Guidelines\nrange of 37 to 46 months of imprisonment. The district court overruled Jones’s\nobjection, concluding that the applicable advisory Guidelines range was 70 to\n87 months of imprisonment. The district court sentenced Jones to 70 months\nin prison. This appeal ensued.\n II\n Whether a district court correctly interpreted the Guidelines is a\nquestion of law that we review de novo. 4 The determination that an offense is\na “crime of violence” is a legal question subject to de novo review. 5 The\nGuideline provision at issue is § 2K2.1, which applies to convictions for the\nunlawful possession of a firearm by a felon. The base offense level is 20 if the\ndefendant “committed any part of the instant offense subsequent to sustaining\n\n\n\n2 18 U.S.C. §§ 922(g)(1), 924(a)(2).\n3 U.S.S.G. § 2K2.1(a)(4)(A) (2011).\n4 United States v. Stoker, 706 F.3d 643, 645-46 (5th Cir. 2013).\n5 Id.\n 2\n\f Case: 12-40877 Document: 00512661408 Page: 3 Date Filed: 06/12/2014\n\n\n\n No. 12-40877\none felony conviction of . . . a crime of violence.” 6 The commentary to § 2K2.1\nprovides that “crime of violence” is defined with reference to § 4B1.2(a) and\napplication note 1 of the commentary to § 4B1.2. 7 Under § 4B1.2(a), the term\n“‘crime of violence’ means any offense under federal or state law, punishable\nby imprisonment for a term exceeding one year,” that\n (1) has as an element the use, attempted use, or threatened use\n of physical force against the person of another, or\n\n (2) is burglary of a dwelling, arson, or extortion, involves use of\n explosives, or otherwise involves conduct that presents a\n serious potential risk of physical injury to another. 8\n\n\n The commentary to § 4B1.2 elaborates, further defining what constitutes\na “crime of violence” for purposes of this section of the Guidelines:\n “Crime of violence” includes murder, manslaughter, kidnapping,\n aggravated assault, forcible sex offenses, robbery, arson, extortion,\n extortionate extension of credit, and burglary of a dwelling. Other\n offenses are included as “crimes of violence” if (A) that offense has\n as an element the use, attempted use, or threatened use of physical\n force against the person of another, or (B) the conduct set forth\n (i.e., expressly charged) in the count of which the defendant was\n convicted involved use of explosives (including any explosive\n material or destructive device) or, by its nature, presented a serious\n potential risk of physical injury to another. 9\nOnly the residual clause is at issue. The question is whether Jones’s prior\nescape conviction qualifies as a crime of violence because it “involve[d] conduct\n\n\n\n\n6 U.S.S.G. § 2K2.1(a)(4)(A) (2011).\n7Id. cmt. n.1 (“‘Crime of violence’ has the meaning given that term in § 4B1.2(a) and\nApplication Note 1 of the Commentary to § 4B1.2.”).\n8 U.S.S.G. § 4B1.2(a) (2011) (emphasis added).\n9 Id. cmt. n.1 (emphasis added).\n\n 3\n\f Case: 12-40877 Document: 00512661408 Page: 4 Date Filed: 06/12/2014\n\n\n\n No. 12-40877\nthat present[ed] a serious potential risk of physical injury to another” 10 or “by\nits nature, presented a serious potential risk of physical injury to another.” 11\n Jones’s prior conviction for escape was obtained under a federal statute,\nwhich provides:\n Whoever escapes or attempts to escape from the custody of the\n Attorney General or his authorized representative, or from any\n institution or facility in which he is confined by direction of the\n Attorney General, or from any custody under or by virtue of any\n process issued under the laws of the United States . . . shall, if the\n custody or confinement is by virtue of an arrest on a charge of\n felony, or conviction of any offense, be fined under this title or\n imprisoned not more than five years, or both . . . . 12\n\n\n In determining what constitutes “a serious potential risk of physical\ninjury to another” under § 4B1.2(a) of the Guidelines, our court has considered\ndecisions of the Supreme Court construing the Armed Career Criminal Act\n(ACCA), 18 U.S.C. § 924(e)(2)(B), to be instructive. 13 There are differences\nbetween the residual clause in the ACCA’s definition of a “violent felony” and\n§ 4B1.2(a)’s residual clause, as will be discussed in more detail. 14 However,\nour court has held that like the residual clause of the ACCA’s definition of\n“violent felony,” the residual clause in § 4B1.2(a), at a minimum, includes\ncrimes that, like the enumerated crimes in § 4B1.2(a), “typically involve\npurposeful, violent, and aggressive conduct,” and that this “conduct is such\n\n\n\n\n10 Id. § 4B1.2(a) (2011).\n11 Id. cmt. n.1.\n12 18 U.S.C. § 751(a).\n13 See, e.g., United States v. Marquez, 626 F.3d 214, 217-18 (5th Cir. 2010).\n14 Compare U.S.S.G. § 4B1.2(a) (2011) with 18 U.S.C. § 924(e)(2)(B).\n\n 4\n\f Case: 12-40877 Document: 00512661408 Page: 5 Date Filed: 06/12/2014\n\n\n\n No. 12-40877\nthat it makes more likely that an offender, later possessing a gun, will use that\ngun deliberately to harm a victim.” 15\n Jones argues that the Supreme Court’s opinion in Chambers v. United\nStates, 16 a decision construing the ACCA, indicates that absconding from a\nhalfway house does not present a serious potential risk of injury to another.\nThe defendant in Chambers was convicted of failing to report to serve a penal\nsentence under a state statute that described “several different kinds of\nbehavior” including failure to return from work or from a furlough, failure to\nabide by the terms of home confinement, escape from custody, and escape from\na penal institution. 17 Categorizing a conviction for failure to report as distinct\nfrom escape, the Supreme Court held that failure to report for imprisonment\nwas not a violent felony under the ACCA. 18 This holding was predominantly\nsupported by statistics compiled by the United States Sentencing Commission\nshowing that of 160 failures to report in 2006 and 2007, none resulted in the\nuse or threat of force, and only five (3.1%) involved a dangerous weapon. 19\n The same report upon which the Supreme Court relied in Chambers\ncategorized leaving a halfway house as “Leaving nonsecure custody,” a\ncategory that included, without distinction, escapes from facilities such as\nprison camps, as well as escapes from home detention. 20 Of 177 instances,\nthree (1.7%) involved the use of force or threat of force, and four instances\n\n\n\n15 Marquez, 626 F.3d at 221 (quoting Begay v. United States, 553 U.S. 137, 144-45 (2008))\n(internal quotation marks omitted).\n16 555 U.S. 122 (2009).\n17 Chambers, 555 U.S. at 126.\n18 Id. at 126-30.\n19Id. at 129, 131 (citing U.S. SENTENCING COMM’N, REPORT ON FEDERAL ESCAPE OFFENSES\nIN FISCAL YEARS 2006 AND 2007 7 (Nov. 2008)).\n20 U.S. SENTENCING COMM’N, supra note 19, at 4.\n\n 5\n\f Case: 12-40877 Document: 00512661408 Page: 6 Date Filed: 06/12/2014\n\n\n\n No. 12-40877\n(2.3%) involved a dangerous weapon. 21 These statistics support treating an\nescape from a halfway house as conceptually different from an escape from\nother types of correctional facilities when considering the potential risk of\nphysical injury to another.\n The Supreme Court’s decision in Chambers has led other circuit courts\nto conclude that escape from a halfway house and other similar escapes are not\n“crimes of violence” within the meaning of § 4B1.2. 22 We agree that typically,\nsuch a crime does not present a potential risk of physical injury to another. In\naddition to the statistics gathered by the Sentencing Commission, the\ncharacteristics of commitment to a halfway house differ from commitment to\nother penal facilities. A halfway house, also known as a community corrections\ncenter or residential reentry center, represents “the lowest custody level within\nthe [federal prison] system.” 23 Individuals are generally required to be in the\nfacility from 9:00 pm to 6:00 am, and exceptions are made during these hours\nfor employment or other approved programming. 24 As we have noted, “a\ncommunity corrections facility is not a jail.” 25 Leaving a facility that allows\n\n\n21 Id. at 7.\n22E.g., United States v. Clay, 627 F.3d 959, 970 (4th Cir. 2010); United States v. Hart, 578\nF.3d 674, 680-81 (7th Cir. 2009); United States v. Ford, 560 F.3d 420, 425 (6th Cir. 2009); see\nalso United States v. Mills, 570 F.3d 508, 512-13 (2d Cir. 2009) (holding that a defendant’s\nfailure to return to his place of confinement was not a violent felony under the ACCA); United\nStates v. Lee, 586 F.3d 859, 870-71 (11th Cir. 2009) (same); United States v. Templeton, 543\nF.3d 378, 383 (7th Cir. 2008) (holding, before Chambers was decided, that a “walkaway”\nescape was not a crime of violence under § 4B1.2).\n23 United States v. Shaw, 979 F.2d 41, 43 (5th Cir. 1992).\n24See BUREAU OF PRISONS, STATEMENT OF WORK: RESIDENTIAL REENTRY CENTER 63 (Feb.\n2012), available at www.bop.gov/business/docs/res_reentry_ctr_sow_2012.pdf.\n25United States v. Voda, 994 F.2d 149, 152 (5th Cir. 1993); see also United States v. Chavez,\n204 F.3d 1305, 1315 (11th Cir. 2000) (“We have previously held that confinement to a halfway\nhouse at night with the requirement that a defendant work at a job or seek employment\nduring the day is a liberty ‘markedly different from custodial incarceration in a penitentiary.’”\n(quoting Dawson v. Scott, 50 F.3d 884, 888 (11th Cir. 1995))); Bailor v. Salvation Army, 51\n 6\n\f Case: 12-40877 Document: 00512661408 Page: 7 Date Filed: 06/12/2014\n\n\n\n No. 12-40877\nindividuals to sign in and sign out does not typically involve “violent” or\n“aggressive” behavior. “[A]n individual who simply walks away from custody\n[is] just as unlikely as an individual who fails to report to custody ‘to call\nattention to his whereabouts by simultaneously engaging in additional violent\nand unlawful conduct.’” 26 Unlike some other escapes, leaving a halfway house\ndoes not require overcoming physical barriers, breaking locks on doors, or\nevading security personnel. 27 “Escaping” from a halfway house does not\ntypically “present a serious potential risk of physical injury” to others.\n III\n The Government contends that our decisions in United States v. Ruiz 28\nand United States v. Hughes 29 are binding precedent that require us to hold\nthat Jones’s prior conviction for escape is a “crime of violence.” We disagree.\n In Ruiz, the defendant had previously been convicted under 18 U.S.C.\n§ 751(a) for escaping from a federal prison camp. 30 The indictment underlying\nthe escape offense alleged that Ruiz “‘knowingly escape[d] from custody of [a\nfederal prison camp] . . . in which he was lawfully confined.’” 31 Ruiz asked this\ncourt to consider facts that were not in the indictment, arguing that he “simply\nwalked away from a prison camp where no physical barriers prevented the\n\n\n\nF.3d 678, 683 (7th Cir. 1995) (describing residents’ freedom of movement in a halfway house);\nUnited States v. Parker, 902 F.2d 221, 222 (3d Cir. 1990) (“We think it clear that a period of\nconfinement [at a halfway house] cannot possibly be equated with an equivalent period of\nimprisonment.”).\n26 Lee, 586 F.3d at 870-71 (quoting Ford, 560 F.3d at 425).\n27 Id. at 870.\n28 180 F.3d 675 (5th Cir. 1999).\n29 602 F.3d 669 (5th Cir. 2010).\n30 Ruiz, 180 F.3d at 676.\n31 Id. (alterations in original).\n\n 7\n\f Case: 12-40877 Document: 00512661408 Page: 8 Date Filed: 06/12/2014\n\n\n\n No. 12-40877\nescape and no guards were armed.” 32 We considered only the contents of the\nindictment and concluded that escape from a federal prison camp was a crime\nof violence within the meaning of § 4B1.2. 33 We quoted decisions of the Tenth\nCircuit to the effect that “‘[e]very escape scenario is a powder keg, which may\nor may not explode into violence and result in physical injury to someone at\nany given time.’” 34 In one of those decisions from the Tenth Circuit, the\ndefendant had been convicted of escape on two prior occasions, once for\nescaping from a community treatment center and then for escaping from a\ncorrection center. 35\n We did not have before us in Ruiz an indictment that charged absconding\nfrom a halfway house. Our holding in Ruiz dealt with an escape from a prison\ncamp, which is not the equivalent of a halfway house. We are unpersuaded\nthat leaving and failing to return to a halfway house presents a “powder keg”\nsituation. We further note that in a habeas proceeding under 28 U.S.C. § 2255\nafter Chambers was decided, the Tenth Circuit has disavowed the decisions\nthat we cited favorably in Ruiz. 36 After our decision in Ruiz, the Tenth Circuit\nheld that a defendant’s prior conviction for “failure to report to a penal\ninstitution after he was permitted to be away on an official pass” was not a\n“violent felony” under the ACCA. 37 The Tenth Circuit expressly “disregard[ed]\n[its] prior precedent” regarding failure-to-return escape convictions, citing\n\n\n\n32 Id.\n33 Id. at 677\n34Id. (quoting United States v. Mitchell, 113 F.3d 1528, 1533 (10th Cir. 1997) (quoting United\nStates v. Gosling, 39 F.3d 1140, 1142 (10th Cir. 1994))).\n35 Mitchell, 113 F.3d at 1533.\n36 See United States v. Shipp, 589 F.3d 1084, 1090-91 (10th Cir. 2009).\n37 Id. at 1086, 1090-91.\n\n 8\n\f Case: 12-40877 Document: 00512661408 Page: 9 Date Filed: 06/12/2014\n\n\n\n No. 12-40877\nUnited States v. Mitchell and United States v. Gosling as being among its\n“disregarded” decisions. 38\n The other decision of our court that the Government contends mandates\nan affirmance of Jones’s sentence is United States v. Hughes. 39 That case\ninvolved the ACCA, not § 4B1.2 of the Guidelines. 40 Hughes had previously\nbeen convicted of escape from a federal institution, in violation of 18 U.S.C.\n§ 751(a). 41 Our court applied the categorical approach, 42 as the Supreme Court\nhas directed in construing the ACCA, including its residual clause. 43 We\nconcluded that § 751(a) is divisible because it “contains multiple crimes” one of\nwhich is “‘escape . . . from an[] institution . . . in which [a person] is confined,’” 44\nand we applied the modified categorical approach 45 to determine that this was\n\n\n\n38Id. at 1090 n.3; see also United States v. Charles, 576 F.3d 1060, 1066-70 (10th Cir. 2009)\n(questioning whether, in light of Chambers, a walkaway escape is necessarily a “crime of\nviolence” under the career offender sections of the Guidelines, and vacating and remanding\nfor consideration of whether the walkaway escape at issue was necessarily a “crime of\nviolence”).\n39 602 F.3d 669 (5th Cir. 2010).\n40 Hughes, 602 F.3d at 673-77.\n41 Id. at 676.\n42 Id. at 674-76.\n43See, e.g., Sykes v. United States, 131 S. Ct. 2267, 2272-73 (2011); Begay v. United States,\n553 U.S. 137, 141 (2008) (“In determining whether this crime is a violent felony [under the\nACCA’s residual clause], we consider the offense generically, that is to say, we examine it in\nterms of how the law defines the offense and not in terms of how an individual offender might\nhave committed it on a particular occasion.”) (citing James v. United States, 550 U.S. 192,\n208-09 (2007) for the proposition that “attempted burglary is a violent felony even if, on some\noccasions, it can be committed in a way that poses no serious risk of physical harm” (emphasis\nin original)).\n44 Hughes, 602 F.3d at 676 (quoting 18 U.S.C. § 751(a)) (last alteration added).\n45 See, e.g., Chambers v. United States, 555 U.S. 122, 125-26 (2009) (“We have made clear,\nhowever, that, for purposes of ACCA’s definitions, it is the generic sense of the word ‘felony’\nthat counts. The statute’s defining language, read naturally, uses ‘felony’ to refer to a crime\nas generally committed. And by so construing the statute, one avoids the practical difficulty\nof trying to ascertain at sentencing, perhaps from a paper record mentioning only a guilty\n 9\n\f Case: 12-40877 Document: 00512661408 Page: 10 Date Filed: 06/12/2014\n\n\n\n No. 12-40877\nthe crime of conviction. 46 Our court was constrained from looking beyond the\nelements of the statute of conviction in Hughes because the categorical and\nmodified categorical approaches consider only the elements of the crime of\nconviction and whether, typically, such a crime presents a serious potential\nrisk of harm to another person. 47 One of the inquiries in construing the\nresidual clause under the ACCA is whether, categorically, the risk posed by a\ncrime is the same kind of risk posed by the enumerated offenses in the ACCA. 48\nFor example, burglary is an enumerated offense in the ACCA. Not all\n\n\n\nplea, whether the present defendant’s prior crime, as committed on a particular occasion, did\nor did not involve violent behavior. Thus, to determine, for example, whether attempted\nburglary [a non-enumerated offense] is a ‘violent felony,’ we have had to examine, not the\nunsuccessful burglary the defendant attempted on a particular occasion, but the generic\ncrime of attempted burglary. . . . The Illinois statute now before us . . . places together in a\nsingle numbered statutory section several different kinds of behavior. It separately describes\nthose behaviors as (1) escape from a penal institution, (2) escape from the custody of an\nemployee of a penal institution, (3) failing to report to a penal institution, (4) failing to report\nfor periodic imprisonment, (5) failing to return from furlough, (6) failing to return from work\nand day release, and (7) failing to abide by the terms of home confinement. We know from\nthe state-court information in the record that Chambers pleaded guilty to ‘knowingly failing\nto report’ for periodic imprisonment ‘to the Jefferson County Jail, a penal institution.’”)\n(citations and some alterations omitted).\n46 Hughes, 602 F.3d at 676.\n47 See, e.g., James, 550 U.S. at 202 (discussing the categorical and modified categorical\napproaches in construing the ACCA, explaining that “we ‘look only to the fact of conviction\nand the statutory definition of the prior offense,’ and do not generally consider the ‘particular\nfacts disclosed by the record of conviction’”) (quoting Shepard v. United States, 544 U.S. 13,\n17 (2005) (quoting Taylor v. United States, 495 U.S. 575, 602 (1990))); id. at 207-08 (rejecting\nthe argument that courts “cannot treat attempted burglary as an ACCA predicate offense\nunless all cases present such a risk,” observing that “[o]ne could, of course, imagine a\nsituation in which attempted burglary might not pose a realistic risk of confrontation or\ninjury to anyone—for example, a break-in of an unoccupied structure located far off the\nbeaten path and away from any potential intervenors,” and holding that “the proper inquiry\nis whether the conduct encompassed by the elements of the offense, in the ordinary case,\npresents a serious potential risk of injury to another”); see also Sykes, 131 S. Ct. at 2272 (“So\nwhile there may be little doubt that the circumstances of the flight in [the defendant’s] own\ncase were violent, the question is whether [the statute of conviction], as a categorical matter,\nis a violent felony.”).\n48 James, 550 U.S. at 203.\n\n 10\n\f Case: 12-40877 Document: 00512661408 Page: 11 Date Filed: 06/12/2014\n\n\n\n No. 12-40877\nburglaries involve an actual confrontation between the burglar and occupants\nof a home. But the risk of such a confrontation is what makes burglary a\n“violent felony.” 49 Though attempted burglary is not an enumerated offense,\nthe risk of confrontation during an attempted burglary is the same as or\ngreater than that presented by a burglary. 50 In construing the ACCA, a court\nconsiders a crime categorically in assessing the risk.\n That is what our court did in Hughes, concluding that the statutory\nelements of Hughes’s conviction under 18 U.S.C. § 751(a) were that he escaped\nfrom an institution in which he was confined. The statute of conviction did not\ngranulate this means of violating the statute further. Our court concluded that\nescape from a penal institution in which one is confined typically “creat[es] a\nsituation described in the statutory language as involving ‘conduct that\npresents a serious potential risk of physical harm to another.’” 51 We recognized\nthat even if failure to report were covered by § 751(a), “failures to report\naccounted for only 10 percent of the instances of escape crimes the Sentencing\nCommission considered.” 52 Accordingly, because escape from an institution\ntypically, though not always, presented a serious potential risk of physical\nharm to another, it was within the ACCA’s residual clause. 53\n But the residual clause in § 4B1.2 differs materially from the ACCA’s\nresidual clause. The commentary to § 4B1.2 regarding the residual clause does\nnot have an analog in the ACCA. The commentary to § 4B1.2 provides that\n\n\n\n James, 550 U.S. at 203; see also Chambers, 555 U.S. at 128-29; Begay v. United States, 553\n49\n\nU.S. 137, 145-46 (2008).\n50 James, 550 U.S. at 203-204.\n51 Hughes, 602 F.3d at 676-77.\n52 Id. at 677 n.7.\n53 Id. at 677.\n\n 11\n\f Case: 12-40877 Document: 00512661408 Page: 12 Date Filed: 06/12/2014\n\n\n\n No. 12-40877\n“[o]ther offenses are included as ‘crimes of violence’ if . . . the conduct set forth\n(i.e., expressly charged) in the count of which the defendant was convicted\ninvolved use of explosives (including any explosive material or destructive\ndevice) or, by its nature, presented a serious potential risk of physical injury to\nanother.” 54 The commentary regarding the residual clause in § 4B1.2 directs\na court to look at conduct expressly charged in the count of conviction to\ndetermine if that conduct by its nature presented a serious potential risk of\nphysical injury to another.\n Our en banc court held in United States v. Charles 55 that because the\nexpress language in the commentary to § 4B1.2 pertaining to the residual\nclause references conduct expressly charged in a count of conviction, “a crime\nis a crime of violence under § 4B1.2(a)(2) only if, from the face of the indictment,\nthe crime charged or the conduct charged presents a serious potential risk of\ninjury to a person.” 56 We said that “[i]njury to another need not be a certain\nresult, but it must be clear from the indictment that the crime itself or the\nconduct specifically charged posed this serious potential risk.” 57 We explained\nthat “Application Note 1, by requiring that other crimes must ‘by [their] nature’\npresent a ‘serous potential risk of physical injury to another,’ calls for a\ncategorical inclusion or exclusion of crimes and/or conduct.” 58 We note that\nthere is some inconsistency in our case law as to whether courts can consider\nthe conduct alleged in the indictment, or are strictly bound by the categorical\nand modified categorical approaches, when applying the residual clause of\n\n\n54 U.S.S.G. § 4B1.2 cmt. n.1 (2011).\n55 301 F.3d 309 (5th Cir. 2002) (en banc).\n56 Charles, 301 F.3d at 314.\n57 Id.\n58 Id.\n\n 12\n\f Case: 12-40877 Document: 00512661408 Page: 13 Date Filed: 06/12/2014\n\n\n\n No. 12-40877\n§ 4B1.2(a)(2). 59 However, we are bound by this court’s en banc ruling in\nCharles, which permitted consideration of the conduct alleged in the\nindictment.\n The indictment underlying Jones’s conviction alleged that he “knowingly\nescape[d] from the custody of the Bureau of Prisons, by absconding from\nDismas Halfway House in Corpus Christi, Texas, an institutional facility in\nwhich he was lawfully confined, at the direction of the United States Attorney\nGeneral by virtue of a judgment and commitment of the United States District\nCourt . . . .” The conduct charged on “the face of the indictment” is that Jones\nabsconded from a halfway house. Absconding from a halfway house does not\ncategorically present a serious potential risk of physical injury to another.\n This holding is consistent with Chambers and is consistent with other\ndecisions from federal courts of appeals that have addressed the issue of\nescapes from halfway houses or other similar walkaway escapes post-\nChambers. Each of our sister circuits to reach the issue has reached the\nconclusion that escapes from halfway houses are not a “crime of violence.” 60\n * * *\n\n\n59Compare id. at 313-14, and United States v. Lipscomb, 619 F.3d 474, 477-79 (5th Cir.\n2010), with United States v. Mohr, 554 F.3d 604, 607, 609 (5th Cir. 2009), with United\nStates v. Stoker, 706 F.3d 643, 649-51 (5th Cir. 2013).\n60See, e.g., United States v. Clay, 627 F.3d 959, 970 (4th Cir. 2010); United States v. Hart,\n578 F.3d 674, 680-81 (7th Cir. 2009); United States v. Ford, 560 F.3d 420, 425 (6th Cir. 2009);\nsee also United States v. Mills, 570 F.3d 508, 512-13 (2d Cir. 2009) (holding that a defendant’s\nfailure to return to his place of confinement was not a violent felony under the ACCA); United\nStates v. Lee, 586 F.3d 859, 870-71 (11th Cir. 2009) (same); United States v. Templeton, 543\nF.3d 378, 383 (7th Cir. 2008) (holding, before Chambers was decided, that a “walkaway”\nescape was not a crime of violence under § 4B1.2). The Ninth Circuit reached this conclusion\nbefore Chambers. See United States v. Piccolo, 441 F.3d 1084, 1085, 1088-90 (9th Cir. 2006).\nThe Tenth Circuit also seems to agree. In United States v. Charles, involving an escape from\na halfway house, the Tenth Circuit remanded to the district court to clarify the nature of the\nescape. 576 F.3d 1060, 1068-69 (10th Cir. 2009). The district court then determined that the\nescape was not a crime of violence. United States v. Charles, 667 F. Supp. 2d 1246 (D. Kan.\n2009).\n\n 13\n\f Case: 12-40877 Document: 00512661408 Page: 14 Date Filed: 06/12/2014\n\n\n\n No. 12-40877\n\n\n The sentence is VACATED. The case is remanded to the district court\nfor proceedings consistent with this opinion.\n\n\n\n\n 14\n\f",
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] |
Fifth Circuit
|
Court of Appeals for the Fifth Circuit
|
F
|
USA, Federal
|
845,965 | null | 2006-06-26 | false |
keller-v-brackney
|
Keller
|
Keller v. BRACKNEY
| null | null | null | null | null | null | null | null | null | null | null | null | 0 |
Published
| null | null |
[
"715 N.W.2d 893",
"475 Mich. 888"
] |
[
{
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"per_curiam": false,
"type": "010combined",
"page_count": 1,
"download_url": "http://publicdocs.courts.mi.gov:81/SCT/PUBLIC/ORDERS/20060626_S130726_26_130726_2006-06-26_or.pdf",
"author_id": null,
"opinion_text": "\n715 N.W.2d 893 (2006)\n475 Mich. 888\nCheryl KELLER, Plaintiff-Appellee,\nv.\nDr. Michael BRACKNEY, and Brackney Chiropractic, Defendants-Appellants.\nDocket No. 130726. COA No. 265963.\nSupreme Court of Michigan.\nJune 26, 2006.\nOn order of the Court, the application for leave to appeal the February 15, 2006 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.\n",
"ocr": false,
"opinion_id": 845965
}
] |
Michigan Supreme Court
|
Michigan Supreme Court
|
S
|
Michigan, MI
|
2,329,507 | null | 2012-04-25 | false |
american-states-ins-co-ex-rel-kommavongsa-v-nammat
|
Nammathao
|
American States Ins. Co. Ex Rel. Kommavongsa v. Nammathao
| null | null | null | null | null | null | null | null | null | null | null | null | 0 |
Published
| null | null |
[
"277 P.3d 668"
] |
[
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": null,
"author_id": null,
"opinion_text": "\n277 P.3d 668 (2012)\nAMERICAN STATES INS. CO. EX REL. KOMMAVONGSA\nv.\nNAMMATHAO.\nNo. 86905-7.\nSupreme Court of Washington, Department II.\nApril 25, 2012.\nDisposition of Petition for Review Denied.\n",
"ocr": false,
"opinion_id": 2329507
}
] |
Washington Supreme Court
|
Washington Supreme Court
|
S
|
Washington, WA
|
127,855 | null | 2003-03-03 | false |
anderson-v-united-states
|
Anderson
|
Anderson v. United States
| null | null | null | null | null | null | null | null | null | null | null | null | 0 |
Published
| null | null |
[
"537 U.S. 1243"
] |
[
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": "http://bulk.resource.org/courts.gov/c/US/537/537.US.1243.02-8806.html",
"author_id": null,
"opinion_text": "537 U.S. 1243\n ANDERSONv.UNITED STATES.\n No. 02-8806.\n Supreme Court of United States.\n March 3, 2003.\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. Reported below: 48 Fed. Appx. 104.\n \n ",
"ocr": false,
"opinion_id": 127855
}
] |
Supreme Court
|
Supreme Court of the United States
|
F
|
USA, Federal
|
2,711,782 | null | 2013-11-25 | false |
people-of-michigan-v-charleston-blue-washington
| null |
People of Michigan v. Charleston Blue Washington
| 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/20131125_S147310_75_147310_2013-11-25_or.pdf",
"author_id": null,
"opinion_text": "Order Michigan Supreme Court\n Lansing, Michigan\n\n November 25, 2013 Robert P. Young, Jr.,\n Chief Justice\n\n 147310 Michael F. Cavanagh\n Stephen J. Markman\n Mary Beth Kelly\n Brian K. Zahra\n Bridget M. McCormack\n PEOPLE OF THE STATE OF MICHIGAN, David F. Viviano,\n Plaintiff-Appellee, Justices\n\n v SC: 147310\n COA: 304611\n Wayne CC: 10-003701-FH\n CHARLESTON BLUE WASHINGTON,\n Defendant-Appellant.\n\n _________________________________________/\n\n On order of the Court, the application for leave to appeal the May 21, 2013\n judgment 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, Larry S. Royster, 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 November 25, 2013\n h1118\n Clerk\n\f",
"ocr": false,
"opinion_id": 2711782
}
] |
Michigan Supreme Court
|
Michigan Supreme Court
|
S
|
Michigan, MI
|
383,752 |
Frank, Henderson, Johnson, Roney
| 1981-01-05 | false |
odell-aaron-hicks-v-louie-l-wainwright-secretary-department-of
| null |
Odell Aaron Hicks v. Louie L. Wainwright, Secretary, Department of Corrections, State of Florida
|
Odell Aaron HICKS, Petitioner-Appellee, v. Louie L. WAINWRIGHT, Secretary, Department of Corrections, State of Florida, Respondent-Appellant
|
Calvin L. Fox, Asst. Atty. Gen. of Fla., Miami, Fla., for respondent-appellant., Elliot H. Scherker, Asst. Public Defender, Miami, Fla., for petitioner-appellee.
| null | null | null | null | null | null | null | null | null | null | 75 |
Published
| null |
<parties data-order="0" data-type="parties" id="b1250-7">
Odell Aaron HICKS, Petitioner-Appellee, v. Louie L. WAINWRIGHT, Secretary, Department of Corrections, State of Florida, Respondent-Appellant.
</parties><br><docketnumber data-order="1" data-type="docketnumber" id="b1250-9">
No. 80-5097
</docketnumber><p data-order="2" data-type="misc" id="a1m-dedup-0">
Summary Calendar.
</p><br><court data-order="3" data-type="court" id="b1250-10">
United States Court of Appeals, Fifth Circuit. Unit B
</court><br><decisiondate data-order="4" data-type="decisiondate" id="b1250-13">
Jan. 5, 1981.
</decisiondate><br><attorneys data-order="5" data-type="attorneys" id="b1251-5">
<span citation-index="1" class="star-pagination" label="1147">
*1147
</span>
Calvin L. Fox, Asst. Atty. Gen. of Fla., Miami, Fla., for respondent-appellant.
</attorneys><br><attorneys data-order="6" data-type="attorneys" id="b1251-6">
Elliot H. Scherker, Asst. Public Defender, Miami, Fla., for petitioner-appellee.
</attorneys><br><p data-order="7" data-type="judges" id="b1251-8">
Before RONEY, FRANK M. JOHNSON, Jr. and HENDERSON, Circuit Judges.
</p>
|
[
"633 F.2d 1146"
] |
[
{
"author_str": "Roney",
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": "http://bulk.resource.org/courts.gov/c/F2/633/633.F2d.1146.80-5097.html",
"author_id": null,
"opinion_text": "633 F.2d 1146\n Odell Aaron HICKS, Petitioner-Appellee,v.Louie L. WAINWRIGHT, Secretary, Department of Corrections,State of Florida, Respondent-Appellant.\n No. 80-5097\n \n Summary Calendar.\n United States Court of Appeals,Fifth Circuit.\n Unit B\n Jan. 5, 1981.\n Calvin L. Fox, Asst. Atty. Gen. of Fla., Miami, Fla., for respondent-appellant.\n Elliot H. Scherker, Asst. Public Defender, Miami, Fla., for petitioner-appellee.\n Appeal from the United States District Court for the Southern District of Florida.\n Before RONEY, FRANK M. JOHNSON, Jr. and HENDERSON, Circuit Judges.\n RONEY, Circuit Judge:\n \n \n 1\n This is an appeal from the grant of a writ of habeas corpus under 28 U.S.C.A. § 2254. Although mindful of the difficulties which confront state trial judges in managing busy dockets, especially in the handling of professional witnesses and in the recalcitrance of some counsel, we nevertheless agree with the district court that the denial of a continuance in this case prevented petitioner from presenting his only expert witness on his insanity defense, the sole issue at trial, and deprived petitioner of his right to due process. The conditional grant of a writ of habeas corpus is affirmed.\n \n \n 2\n Petitioner was prosecuted in state court for breaking and entering a dwelling with intent to commit a felony and involuntary sexual battery. His only defense at trial was insanity. The prosecution rested its case at approximately 4:30 p. m. on the first day of trial. At that time, counsel for petitioner requested a continuance because the petitioner's sole witness, Dr. David Rothenberg, a clinical psychologist, was unavailable to testify. Counsel explained that Dr. Rothenberg had been available up until 4:00 o'clock and would be willing to testify after he finished a therapy group at 10:00 p. m., but he could not come now. To counsel's request for a recess, the judge responded \"No way.\" The following exchange ensued.\n \n \n 3\n The Court: We are taking all the testimony tonight.\n \n \n 4\n Mr. Rubio (petitioner's counsel): 10:30 is all right, then?\n \n \n 5\n The Court: We have another case that will be tried this week. It will be tried.\n \n \n 6\n Mr. Rubio: I am not so sure that case is going to be tried.\n \n \n 7\n The Court: Or it will close. At any rate, I am assuming it is a jury and we are definitely not recessing this case. Definitely not.\n \n \n 8\n Mr. Rubio: He can't testify until tomorrow.\n \n \n 9\n The Court: That is unfortunate. We are proceeding.\n \n \n 10\n Mr. Rubio: Then, I'd like to make a proffer of what his testimony would have been. He would have testified favorably for the Defense.\n \n \n 11\n He would have testified that Odell Hicks did not know right from wrong or the nature and consequences of his act.\n \n \n 12\n The Court: We are proceeding.\n \n \n 13\n Mr. Rubio: We are not going to be allowed to present our Defense, then, with our psychiatrist.\n \n \n 14\n The Court: You can present anything you want. This case announced ready. It's going to trial. It's in trial and it's going forward.\n \n \n 15\n Mr. Rubio: I have done my best. I have done everything I can to get Doctor Rothenberg here.\n \n \n 16\n The Court: What can I tell you? We are going forward.\n \n \n 17\n Mr. Rubio: Is there any way the Court can require Doctor Rothenberg, then, to appear?\n \n \n 18\n The Court: Isn't he under subpoena?\n \n \n 19\n Mr. Rubio: Yes, he is.\n \n \n 20\n The Court: Why is he refusing?\n \n \n 21\n Mr. Rubio: Because he was available all day and he's got commitments until 10:00 o'clock tonight.\n \n \n 22\n The Court: I would suggest you have your associate telephone him and say he'd best get his way over here.We will sit right here. Go use my phone. Go use Peggy's phone.\n \n \n 23\n (Apparently a pause while Mr. Rubio telephoned Dr. Rothenberg.)\n \n \n 24\n Mr. Rubio: Judge, he says that he's for years, on Wednesday nights, he's had-\n \n \n 25\n The Court: I don't care for years.\n \n \n 26\n Mr. Rubio: He says he will be here after the group, which is around 10:00, 10:30.\n \n \n 27\n The Court: I don't care what he's done for years. This case is proceeding with him or without him ....\n \n \n 28\n Petitioner's counsel then made his introductory statement to the jury. Immediately afterwards, he again asked that the case be recessed until he could call the psychologist. The motion was firmly denied. Counsel announced that he would be forced to call petitioner to the stand.\n \n \n 29\n The motion to recess was renewed and denied following petitioner's testimony and again at the close of the prosecution's insanity testimony. All the testimony was taken that night and closing arguments were made. The next morning the jury was instructed and they rendered their guilty verdict. Petitioner's motion for a new trial, which did not raise the issue of a compulsory process or the denial of continuance, was denied.\n \n \n 30\n On direct appeal to the District Court of Appeal of Florida, petitioner asserted, inter alia, that the denial by the trial court of a continuance or a recess denied petitioner due process and his right to present a defense under the Sixth Amendment. Petitioner's conviction was affirmed in a per curiam order without opinion.\n \n \n 31\n The identical issue formed the basis of petitioner's petition for a writ of habeas corpus in the district court. The court, over the State's objections that petitioner did not properly raise the issue in the trial court and the proffer by petitioner's counsel was not true, granted the writ without an evidentiary hearing. The State now appeals to this Court.\n \n \n 32\n The State argues that the constitutional issue presented in the federal court was not raised in the state trial court and therefore petitioner is not entitled to relief because of failure to exhaust state remedies and because he is now barred by the contemporaneous objection rule. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).\n \n \n 33\n This argument is based on a mischaracterization of the constitutional claim. The State characterizes the issue as whether the trial court denied petitioner his constitutional right to compulsory process under the Sixth Amendment. The petition in the district court, however, framed the claim as a due process violation, that is, the denial of a continuance violated the right to present a crucial defense witness. While not stated in specific federal constitutional terms, this issue, as shown by the portion of the transcript quoted above, was repeatedly raised by petitioner in the trial court and was specifically relied upon as a basis of error in his direct appeal to the state appellate court. This was sufficient. See Picard v. Connor, 404 U.S. 270, 278, 92 S.Ct. 509, 513, 30 L.Ed.2d 438 (1971); Lamberti v. Wainwright, 513 F.2d 277, 282 (5th Cir. 1975).\n \n \n 34\n A motion for continuance is addressed to the sound discretion of the trial court and will not be disturbed on a direct appeal unless there is a showing that there has been an abuse of that discretion. United States v. Uptain, 531 F.2d 1281 (5th Cir. 1976); United States v. Gidley, 527 F.2d 1345 (5th Cir. 1976), cert. denied, 429 U.S. 841, 97 S.Ct. 116, 50 L.Ed.2d 110 (1977). When a denial of a continuance forms a basis of a petition for a writ of habeas corpus, not only must there have been an abuse of discretion but it must have been so arbitrary and fundamentally unfair that it violates constitutional principles of due process. See Gandy v. Alabama, 569 F.2d 1318, 1323 (5th Cir. 1978); Shirley v. North Carolina, 528 F.2d 819, 822 (4th Cir. 1975).\n \n \n 35\n The Supreme Court addressed this subject in Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964):\n \n \n 36\n The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel. Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality. There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. (Citations omitted.)\n \n \n 37\n When a motion for a continuance for the purpose of securing defense witnesses is denied, our cases have identified the following factors in considering whether denial of the motion was an abuse of the trial court's discretion:\n \n \n 38\n the diligence of the defense in interviewing witnesses and procuring their presence, the probability of procuring their testimony within a reasonable time, the specificity with which the defense is able to describe their expected knowledge or testimony, the degree to which such testimony is expected to be favorable to the accused, and the unique or cumulative nature of the testimony.\n \n \n 39\n United States v. Uptain, 531 F.2d at 1287 (footnotes omitted).\n \n \n 40\n The record in this case demonstrates that the defense exercised due diligence to obtain the witness's presence. Dr. Rothenberg had interviewed petitioner and had been prepared by the defense to testify. He had been placed under subpoena and had been available to testify earlier in the day. Petitioner's counsel was in telephone contact with him during the trial. The witness's unwillingness to appear when the court was ready to hear his testimony cannot be attributed to the petitioner.\n \n \n 41\n The State faults petitioner for failing to attempt to have the witness testify the next morning. This argument ignores the fact that the proceedings on the second day were after the State and the defense had presented their cases in chief and in rebuttal, and after they had completed their closing arguments. The trial judge may have foreclosed this avenue completely the night before when she ruled, \"We are taking all the testimony tonight.\"\n \n \n 42\n The record also shows that Dr. Rothenberg would have testified within a reasonable time. It was represented to the state court and never controverted that the witness was willing to testify after his group therapy session at 10:00 that evening or at any time thereafter.\n \n \n 43\n The district court found that Dr. Rothenberg would have given substantial and significant testimony in favor of the petitioner. As shown in the proffer by petitioner's counsel, Dr. Rothenberg was prepared to testify that petitioner was insane at the time of the offense for which he was being tried. This proffer was not challenged by the State's attorney. From the opening statement to the jury made by the State's attorney, it is clear that she expected Dr. Rothenberg to so testify. Where insanity was the sole issue at trial, this testimony was plainly substantial and significant.\n \n \n 44\n The State argues, however, that Dr. Rothenberg would not have so testified. This argument is based on a deposition of Dr. Rothenberg taken three months after the trial in which the doctor stated that he had not determined that petitioner was insane at the time of the offense, but only that he had determined that petitioner was incompetent to stand trial. This argument is misleading. The district court found, and the record amply supports the conclusion, that the deposition referred to was taken in another criminal matter in which petitioner was involved. The statement referred to another offense and had nothing to do with this case. The State's argument is squarely rebutted by the affidavits of the doctor and petitioner's trial attorney filed with the district court. The doctor's affidavit specifically states that he was prepared to testify that petitioner was psychotic on the date of the alleged offense and was unable to determine right from wrong or understand the consequences of his actions at that time.\n \n \n 45\n Dr. Rothenberg's testimony was critical. It was, as the district court found, the \"only testimony potentially effective to his defense.\" United States v. Fessel, 531 F.2d 1275, 1280 (5th Cir. 1976). Denying petitioner's motion for a continuance for a few hours effectively stripped him of any defense he might have had.\n \n \n 46\n The State argues that the district court should have held an evidentiary hearing. An evidentiary hearing is necessary only when facts are at issue. When the only question is legal rather than factual no evidentiary hearing is needed. Anderson v. Maggio, 555 F.2d 447 (5th Cir. 1977).\n \n \n 47\n The district court properly balanced the competing interests at stake here and held the right of petitioner to present the witness outweighed any inconvenience that would have been caused by extending the trial by a few hours.\n \n \n 48\n AFFIRMED.\n \n ",
"ocr": false,
"opinion_id": 383752
}
] |
Fifth Circuit
|
Court of Appeals for the Fifth Circuit
|
F
|
USA, Federal
|
2,711,875 | null | 2013-11-25 | false |
people-of-michigan-v-james-oliver-mackechnie-ii
| null |
People of Michigan v. James Oliver MacKechnie II
| 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/20131125_S147677_15_147677_2013-11-25_or.pdf",
"author_id": null,
"opinion_text": "Order Michigan Supreme Court\n Lansing, Michigan\n\n November 25, 2013 Robert P. Young, Jr.,\n Chief Justice\n\n 147677 Michael F. Cavanagh\n Stephen J. Markman\n Mary Beth Kelly\n Brian K. Zahra\n Bridget M. McCormack\n PEOPLE OF THE STATE OF MICHIGAN, David F. Viviano,\n Plaintiff-Appellee, Justices\n\n v SC: 147677\n COA: 316724\n Allegan CC: 12-017739-FC\n JAMES OLIVER MACKECHNIE, II,\n Defendant-Appellant.\n\n _________________________________________/\n\n On order of the Court, the application for leave to appeal the July 17, 2013 order\n of the Court of Appeals is considered, and it is DENIED, because we are not persuaded\n that the question presented should be reviewed by this Court.\n\n\n\n\n I, Larry S. Royster, 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 November 25, 2013\n h1118\n Clerk\n\f",
"ocr": false,
"opinion_id": 2711875
}
] |
Michigan Supreme Court
|
Michigan Supreme Court
|
S
|
Michigan, MI
|
1,580,270 | null | 2009-06-23 | false |
jordan-v-state
|
Jordan
|
Jordan v. State
| null | null | null | null | null | null | null | null | null | null | null | null | 0 |
Published
| null | null |
[
"12 So. 3d 237"
] |
[
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": null,
"author_id": null,
"opinion_text": "\n12 So. 3d 237 (2009)\nJORDAN\nv.\nSTATE.\nNo. 5D09-387.\nDistrict Court of Appeal of Florida, Fifth District.\nJune 23, 2009.\nDecision without published opinion Affirmed.\n",
"ocr": false,
"opinion_id": 1580270
}
] |
District Court of Appeal of Florida
|
District Court of Appeal of Florida
|
SA
|
Florida, FL
|
199,704 |
Coffin, Lipez, Selya
| 2001-11-30 | false |
lohnes-v-level-3-communications-inc
|
Lohnes
|
Lohnes v. Level 3 Communications, Inc.
|
Paul R. LOHNES, Plaintiff, Appellant, v. LEVEL 3 COMMUNICATIONS, INC., Defendant, Appellee
|
Michael Eby, with whom Robert E. McLaughlin, Sr. and Gilman, McLaughlin & Hanrahan LLP were on brief, for appellant., Joseph E. Jones, with whom Fraser, Stryker, Meusey, Olson, Boyer & Block, P.C., Paul G. Lannon, Jr., and Holland & Knight LLP were on brief, for appellee.
| null | null | null | null | null | null | null |
Heard Nov. 5, 2001.
| null | null | 44 |
Published
| null |
<parties id="b79-6">
Paul R. LOHNES, Plaintiff, Appellant, v. LEVEL 3 COMMUNICATIONS, INC., Defendant, Appellee.
</parties><br><docketnumber id="b79-9">
No. 01-1613.
</docketnumber><br><court id="b79-10">
United States Court of Appeals, First Circuit.
</court><br><otherdate id="b79-12">
Heard Nov. 5, 2001.
</otherdate><br><decisiondate id="b79-13">
Decided Nov. 30, 2001.
</decisiondate><br><attorneys id="b80-13">
<span citation-index="1" class="star-pagination" label="50">
*50
</span>
Michael Eby, with whom Robert E. McLaughlin, Sr. and Gilman, McLaughlin & Hanrahan LLP were on brief, for appellant.
</attorneys><br><attorneys id="b80-14">
Joseph E. Jones, with whom Fraser, Stryker, Meusey, Olson, Boyer & Block, P.C., Paul G. Lannon, Jr., and Holland & Knight LLP were on brief, for appellee.
</attorneys><br><judges id="b80-15">
Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and LIPEZ, Circuit Judge.
</judges>
|
[
"272 F.3d 49"
] |
[
{
"author_str": "Selya",
"per_curiam": false,
"type": "010combined",
"page_count": 36,
"download_url": "http://www.ca1.uscourts.gov/pdf.opinions/01-1613-01A.pdf",
"author_id": null,
"opinion_text": "272 F.3d 49 (1st Cir. 2001)\n PAUL R. LOHNES, Plaintiff, Appellant,v.LEVEL 3 COMMUNICATIONS, INC., Defendant, Appellee.\n No. 01-1613\n United States Court of Appeals For the First Circuit\n Heard Nov. 5, 2001Decided November 30, 2001\n \n APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS\n [Hon. Edward F. Harrington, Senior U.S. District Judge]\n Michael Eby, with whom Robert E. McLaughlin, Sr. and Gilman, McLaughlin & Hanrahan LLP were on brief, for appellant.\n Joseph E. Jones, with whom Fraser, Stryker, Meusey, Olson, Boyer & Block, P.C., Paul G. Lannon, Jr., and Holland & Knight LLP were on brief, for appellee.\n Before Selya, Circuit Judge, Coffin, Senior Circuit Judge, and Lipez, Circuit Judge.\n SELYA, Circuit Judge.\n \n \n 1\n The primary issue raised in this appeal is whether the terms \"capital reorganization\" and/or \"reclassification of stock,\" as used in a stock warrant, encompass a stock split. Asserting the affirmative of this proposition, a warrantholder, plaintiff-appellant Paul R. Lohnes, claims that a stock split effectuated by defendant-appellee Level 3 Communications, Inc. (Level 3) triggered an antidilution provision in the warrant that automatically increased the number of shares of stock to which he was entitled. Level 3 resists this claim. The district court concluded that the language of the warrant could not reasonably be construed to encompass a stock split and, accordingly, granted Level 3's motion for summary judgment. Lohnes v. Level 3 Communications, Inc., 135 F. Supp. 2d 105, 106 (D. Mass. 2001). We affirm.\n \n I. BACKGROUND\n \n 2\n Consistent with the conventional summary judgment praxis, our account of the relevant facts construes the record in the light most favorable to the nonmoving party (here, the appellant). McCarthy v. N.W. Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995).\n \n \n 3\n The appellant is both a trustee and a beneficiary of C.E.M. Realty Trust (the Trust). In February of 1998, the Trust leased 40,000 square feet of commercial space to XCOM Technologies, Inc. (XCOM). The details of the lease transaction need not concern us, save for the fact that, as part of the consideration, XCOM issued a stock warrant to the appellant. The parties negotiated the principal terms of the warrant -- the number of shares, the exercise price, and the expiration date -- and XCOM's lawyer then drafted the document. The warrant specified that its exercise would be governed by Massachusetts law. It empowered the holder to purchase, at his discretion but within a fixed period, 100,000 shares of XCOM common stock at $0.30 per share.\n \n \n 4\n Unbeknownst to the appellant, XCOM's days as an independent entity were numbered. Shortly after the appellant executed the lease and accepted the warrant, Level 3 acquired XCOM in a stock-for-stock transaction and converted XCOM into a wholly-owned subsidiary. As part of this transaction, Level 3 agreed to assume XCOM's warrant obligations and satisfy them with shares of Level 3's common stock (using a designated share exchange formula). Following this paradigm, the appellant's unexercised warrant for XCOM shares was duly converted into a warrant to purchase 8,541 shares of Level 3's common stock. The appellant does not challenge this conversion (which took effect in April of 1998).\n \n \n 5\n The next significant development occurred on July 14, 1998. On that date, Level 3's board of directors authorized a two-for-one stock split, to be effectuated in the form of a stock dividend granting common shareholders one new share of stock for each share held.1 The board set the record date as July 30, 1998. On July 20, Level 3 issued a press release announcing the stock split, but it did not provide the appellant with personalized notice.\n \n \n 6\n The split occurred as scheduled. Adhering to generally accepted accounting practices, Level 3 adjusted its balance sheet to account for the split by increasing its common stock account in the amount of $1,000,000 and reducing paid-in-capital by a like amount. These accounting entries had no net effect on either the retained earnings or the net equity of the company.\n \n \n 7\n Despite the sharp reduction in the share price that accompanied the stock split, the appellant paid no heed until approximately three months after the record date. When his belated inquiry revealed what had transpired, the appellant contacted Level 3 to confirm that the stock split had triggered a share adjustment provision, thus entitling him to 17,082 shares (twice the number of shares specified in the warrant). Level 3 demurred on the ground that the warrant did not provide for any share adjustment based upon the occurrence of a stock split effected as a stock dividend.\n \n \n 8\n Dissatisfied by Level 3's response, the appellant exercised the warrant and received 8,541 shares of Level 3's common stock. He then sued Level 3 in a Massachusetts state court alleging breach of both the warrant and the implied duty of good faith and fair dealing. Citing diversity of citizenship and the existence of a controversy in the requisite amount, Level 3 removed the action to the federal district court. See 28 U.S.C. §§ 1332(a), 1441. The parties then engaged in a protracted period of pretrial discovery.\n \n \n 9\n Discovery closed on October 30, 2000. Thereafter, Level 3 moved for summary judgment. See Fed. R. Civ. P. 56. The appellant's opposition to the motion included, inter alia, the affidavit of Jonathan C. Guest, whom the appellant held out to be a securities expert. Level 3 moved to strike the Guest affidavit.\n \n \n 10\n In due course, the district court ruled that, as a matter of law, a stock split, effected as a stock dividend, did not constitute a \"capital reorganization\" as that term was used in the warrant and, accordingly, granted the motion for summary judgment. Lohnes, 135 F. Supp. 2d at 106. In its rescript, the court neither referred to the Guest affidavit nor ruled explicitly on Level 3's motion to strike that affidavit. This timely appeal ensued.\n \n II. METHODOLOGY OF REVIEW\n \n 11\n We begin our analysis by outlining the legal framework that governs our review. Next, we apply well-worn principles of contract interpretation to resolve the appellant's contention that the terms \"capital reorganization\" and \"reclassification of stock\" encompass a stock split implemented as a stock dividend. In this endeavor, our principal task is to determine the ambiguity vel non of the disputed terms. Thus, we investigate whether either term is reasonably susceptible to the interpretation urged by the appellant. As part of this exercise, we consider (and reject) the appellant's belated attempt to introduce expert testimony bearing on this question. We conclude by addressing the appellant's claim that Level 3 breached the implied duty of good faith and fair dealing inherent in the warrant.\n \n \n 12\n We set out upon this odyssey mindful that the entry of summary judgment is justified only \"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). Once a defendant moves for summary judgment and places in issue the question of whether the plaintiff's case is supported by sufficient evidence, the plaintiff must establish the existence of a factual controversy that is both genuine and material. Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990). To carry this burden, the plaintiff must \"affirmatively point to specific facts that demonstrate the existence of an authentic dispute.\" McCarthy, 56 F.3d at 315.\n \n \n 13\n We review the district court's entry of summary judgment de novo. Suarez v. Pueblo Int'l, Inc., 229 F.3d 49, 53 (1st Cir. 2000). Thus, we are not wed to the district court's reasoning but may affirm its order on any independently sufficient ground. Houlton Citizens' Coalition v. Town of Houlton, 175 F.3d 178, 184 (1st Cir. 1999); Polyplastics, Inc. v. Transconex, Inc., 827 F.2d 859, 860-61 (1st Cir. 1987). In conducting our analysis, this court -- like the district court -- must scrutinize the record in the light most favorable to the party opposing summary judgment and indulge all reasonable inferences in that party's favor. Garside, 895 F.2d at 48.\n \n \n 14\n These principles have a nuanced application when a motion for summary judgment hinges upon an issue of contract interpretation. In that type of situation, we have counseled that:\n \n \n 15\n While an argument between parties about the meaning of a contract is typically an argument about a \"material fact,\" summary judgment is not necessarily foreclosed. Even if there is ambiguity in the language . . . the evidence presented about the parties' intended meaning may be so one-sided that no reasonable person could decide the contrary.\n \n \n 16\n Allen v. Adage, Inc., 967 F.2d 695, 698 (1st Cir. 1992) (citations omitted). Accordingly, summary judgment may lie against a party who fails adequately to support its proposed interpretation of a purportedly ambiguous contract term. See, e.g., In re Newport Plaza Assocs., 985 F.2d 640, 645 (1st Cir. 1993); FDIC v. Singh, 977 F.2d 18, 21 (1st Cir. 1992); see also Edmonds v. United States, 642 F.2d 877, 881 (1st Cir. 1981) (holding that there must be more than one \"plausible definition\" of contractual language to create a fact question).\n \n III. THE CONTRACT INTERPRETATION CLAIMS\n \n 17\n A stock warrant is an instrument that grants the warrantholder an option to purchase shares of stock at a fixed price. See Black's Law Dict. 1441 (7th ed. 1999); II James Cox et al., Corporations § 18.15 (1995 & 1999 Supp.); 6A William Meade Fletcher, Fletcher Cyclopedia of the Law of Private Corps. § 2641 (perm. ed. 1997); see also Tribble v. J.W. Greer Co., 83 F. Supp. 1015, 1022 (D. Mass. 1949) (holding, under Massachusetts law, that a stock warrant is \"a contract by which the corporation gives an irrevocable option to the holder to purchase authorized corporate stock within a period of time at a price and upon terms specified in the contract\"). Against the backdrop of this well-established definition, we turn to the appellant's contract interpretation claims. We divide our discussion into seven segments.\n \n \n 18\n A. Applicable Legal Principles.\n \n \n 19\n Time-honored principles of contract law govern our analysis. We begin with bedrock: the determination of whether a contract is ambiguous is a question of law within the province of the judge. Fashion House, Inc. v. K Mart Corp., 892 F.2d 1076, 1083 (1st Cir. 1989); RCI N.E. Servs. Div. v. Boston Edison Co., 822 F.2d 199, 202 (1st Cir. 1987). Contract language ordinarily is considered ambiguous \"where an agreement's terms are inconsistent on their face or where the phraseology can support reasonable differences of opinion as to the meaning of the words employed and obligations undertaken.\" Fashion House, 892 F.2d at 1083.\n \n \n 20\n A court's determination that a contract is or is not ambiguous has important implications. If a court holds that a contract is unambiguously worded, it typically will construe the document based upon the plain and natural meaning of the language contained therein. Smart v. Gillette Co. Long-Term Disability Plan, 70 F.3d 173, 178 (1st Cir. 1995); Hiller v. Submarine Signal Co., 91 N.E.2d 667, 669 (Mass. 1950). For the most part, a court interpreting an unambiguous agreement need not consult extrinsic evidence to impart meaning to its terms. Smart, 70 F.3d at 179. A court may, however, consider extrinsic evidence for the limited purpose of evaluating whether a term is ambiguous in the first place, but only if the extrinsic evidence \"suggests a meaning to which the challenged language is reasonably susceptible.\" Id. at 180.\n \n \n 21\n If, however, ambiguity looms -- that is, if \"the plain meaning of a contract phrase does not spring unambiguously from the page or from the context\" -- then the interpretive function involves a question of fact. RCI N.E., 822 F.2d at 202. In such cases, a court may consider extrinsic evidence insofar as it sheds light on what the parties intended. Robert Indus., Inc. v. Spence, 291 N.E.2d 407, 409 (Mass. 1973).\n \n \n 22\n B. Parsing the Warrant.\n \n \n 23\n The warrant at issue here contained a two-paragraph antidilution provision which, upon the occurrence of certain described events, automatically adjusted the number of shares to which the warrantholder would be entitled upon exercise of the warrant. In all, share adjustments were engendered by five separate contingencies: capital reorganization, reclassification of common stock, merger, consolidation, and sale of all (or substantially all) the capital stock or assets. However, the warrant did not explicitly provide for an adjustment of shares in the event of a stock split. The appellant attempts to plug this lacuna by equating a stock split with a capital reorganization and/or a reclassification of stock. This argument brings the following paragraph of the antidilution provision into play:\n \n \n 24\n Reorganizations and Reclassifications. If there shall occur any capital reorganization or reclassification of the Common Stock, then, as part of any such reorganization or reclassification, lawful provision shall be made so that the Holder shall have the right thereafter to receive upon the exercise hereof the kind and amount of shares of stock or other securities or property which such Holder would have been entitled to receive if, immediately prior to any such reorganization or reclassification, such Holder had held the number of shares of Common Stock which were then purchasable upon the exercise of this Warrant.\n \n \n 25\n Building upon the premise that either \"capital reorganization\" or \"reclassification of stock\" encompasses a stock split, the appellant concludes that Level 3's stock split activated the share adjustment mechanism set forth in the quoted paragraph.\n \n \n 26\n As said, the appellant bears the burden of establishing the existence of a genuine issue of material fact. Given the circumstances of this case, the only way for him to succeed in this endeavor is by showing that one of the disputed terms (\"capital reorganization\" or \"reclassification of stock\") is shrouded in ambiguity, that is, that reasonable minds plausibly could reach opposite conclusions as to whether either term extended to stock splits. To appraise the success of the appellant's efforts, we ponder each term separately.\n \n \n 27\n C. Capital Reorganization.\n \n \n 28\n Since the warrant does not elaborate upon the meaning of \"capital reorganization,\" we turn to other sources. Massachusetts law offers no discernible guidance. Outside of Massachusetts, the closest case is Prescott, Ball & Turben v. LTV Corp., 531 F. Supp. 213 (S.D.N.Y. 1981). There, the plaintiffs owned debentures, issued pursuant to a trust indenture, which were convertible into common stock of LTV Corp. (LTV). LTV's board ratified a spin-off proposal calling for the distribution of all the shares of a wholly-owned LTV subsidiary to LTV's common stockholders on a pro rata basis. The distribution stood to reduce LTV's stated capital and retained earnings by $62.4 million and $30.3 million, respectively. Id. at 215. The plaintiffs argued that the proposed distribution of the subsidiary's stock entailed a capital reorganization that triggered an antidilution provision contained in the trust indenture.2 The defendants countered that the spin-off was merely a dividend, and, therefore, did not trigger the share adjustment machinery established in the antidilution provision.\n \n \n 29\n The Prescott court sided with the defendants. It noted that the \"only way\" the defendants could prevail was if the terms of the trust indenture made it unambiguously clear that the parties did not intend to treat the spin-off as a capital reorganization. Id. at 217. Finding the terms of the trust indenture to be unambiguous, the court ruled that:\n \n \n 30\n The plain language of the Trust Indenture contemplates an exchange or alteration in the existing ownership form of the interest held by LTV common shareholders before a particular transaction can be classified as a capital reorganization for purposes of the Trust Indenture. No such exchange or alteration is involved in the proposed distribution of the [LTV subsidiary's] stock. The proposed distribution therefore does not activate the [antidilution adjustment provision in] the Trust Indenture.\n \n \n 31\n Id. at 219-20.\n \n \n 32\n The district court deemed Prescott dispositive, see Lohnes, 135 F. Supp. 2d at 106, and indeed, Prescott bears several similarities to the case at bar. In neither instance was the term \"capital reorganization\" defined in the controlling document or in the applicable state law. Moreover, the Prescott court was required to apply principles of contract law to construe the letter of the controlling document and determine whether a share adjustment provision designed to prevent dilution was triggered by a stock dividend. Finally, neither case involved an exchange of existing shares; rather, the stock split orchestrated by Level 3 was effected by distributing additional shares to its existing shareholders in much the same manner that shares in the wholly-owned subsidiary were distributed to LTV's stockholders.\n \n \n 33\n Despite these similarities, we stop short of endorsing the district court's declaration that Prescott should be given controlling effect. The Prescott court, finding cases from other jurisdictions and general financial terminology to be of \"little help,\" ultimately restricted its analysis to the four corners of the trust indenture there at issue. 531 F. Supp. at 218. In contrast, we consider ourselves bound to grapple with the intricacies of Massachusetts law and, in performing that task, to search for guidance in case law from other courts, the statutes of foreign jurisdictions, and common financial usage -- all of which are appropriate benchmarks for gauging the reasonableness vel non of the appellant's sweeping definition of \"capital reorganization.\" Thus, we treat Prescott as suggestive evidence that stock splits do not constitute capital reorganizations, but refrain from according it decretory significance.\n \n \n 34\n Also of interest is Wood v. Coastal States Gas Corp., 401 A.2d 932 (Del. 1979). There, a corporation's preferred shareholders challenged a settlement that required the parent corporation, inter alia, to spin off a subsidiary and distribute a portion of the subsidiary's stock to the parent company's common shareholders. Id. at 935-36. The preferred shareholders argued that the spin-off constituted a recapitalization, thereby triggering an antidilution adjustment in their stock certificates. The court rejected this argument, holding that the settlement plan did not constitute a recapitalization. Id. at 941. Like Prescott, this case suggests that the term \"capital reorganization\" is not so elastic as the appellant claims, but it does not fully answer the question that we must decide.\n \n \n 35\n Moving beyond the case law,3 the meaning of the term \"capital reorganization\" in common legal parlance seemingly belies the appellant's ambitious definition. The preeminent legal lexicon defines \"reorganization,\" in pertinent part, as a \"[g]eneral term describing corporate amalgamations or readjustments occurring, for example, when one corporation acquires another in a merger or acquisition, a single corporation divides into two or more entities, or a corporation makes a substantial change in its capital structure.\" Black's Law Dict. 1298 (6th ed. 1990). The first two prongs of this definition are clearly inapposite here. That leaves only the question of whether a stock split entails a \"substantial change in [a corporation's] capital structure.\" We think not.\n \n \n 36\n First and foremost, the accounting mechanics that accompany a stock split are mere window dressing. See generally Robert S. Anthony & James S. Reece, Accounting Principles 37-39 (7th ed. 1995). To be sure, a stock split effected through the distribution of shares in the form of a stock dividend results in an increase in the common stock at par account and an offsetting decrease in additional paid-in capital, id., but this subtle set of entries has no effect on total shareholder equity or on any other substantive aspect of the balance sheet. See FASB, Accounting Research Bulletin No. 43; see also III Cox, supra § 20.20 (\"A share split-up does not, however, make any representations as to any accumulation of earnings or surplus or involve any increase of the legal capital.\"). Because a stock split does not entail a substantial change in a corporation's capital structure, the unelaborated term \"capital reorganization\" cannot plausibly include a stock split effected as a stock dividend.\n \n \n 37\n D. Reclassification of Stock.\n \n \n 38\n We turn next to the phrase \"reclassification of stock.\" Two Massachusetts cases seem worthy of mention. In the first, a corporation took advantage of a new statute authorizing the issuance of preferred stock and amended its charter to divide its previously undifferentiated stock into common and preferred shares. Page v. Whittenton Mfg. Co., 97 N.E. 1006, 1007-08 (Mass. 1912). The Massachusetts Supreme Judicial Court approved the corporation's actions. It held that a corporation could classify stock into common and preferred shares (providing preferred shareholders with cumulative dividends and a liquidation preference) so long as that classification was effected through a charter amendment. Id. at 1007. Although Page uses the verb \"classify,\" we view what transpired as a reclassification. See XIII Oxford English Dict. 339 (2d ed. 1989) (defining \"reclassify\" as \"[t]o classify again; to alter the classification of\").\n \n \n 39\n In Boston Safe Deposit & Trust Co. v. State Tax Comm'n, 163 N.E.2d 637 (Mass. 1960), the court considered the tax implications of a reclassification of stock. The reclassification in question involved the partial substitution of redeemable, convertible, cumulative, nonvoting shares for nonredeemable, nonconvertible, noncumulative, voting shares. Id. at 642. The court held that the reclassification constituted a taxable event under Massachusetts law. Id. at 643.\n \n \n 40\n Our reading of the Massachusetts cases leads us to conclude that the sine qua non of a reclassification of stock is the modification of existing shares into something fundamentally different. At the end of the day, the stockholders in Page held a different class of shares, while the stockholders in Boston Safe gained some privileges while losing the right to vote. Thus, Page and Boston Safe, respectively, illustrate two ways in which a security can be altered fundamentally: (a) by changing the class of stock, or (b) by modifying important rights or preferences linked to stock.\n \n \n 41\n Stock splits effected as stock dividends do not entail any such fundamental alteration of the character of an existing security. For example, Level 3's stock split in no way altered its shareholders' proportionate ownership interests, varied the class of securities held, or revised any of the attributes associated with the stock. What is more, the stock split did not have a meaningful impact on either the corporation's balance sheet or capital structure. For those reasons, we perceive no principled basis on which to stretch the definition of \"reclassification of stock\" to encompass a stock split.\n \n \n 42\n A rule promulgated by the Securities and Exchange Commission confirms our intuition. This rule extends the protections of the Securities Act of 1933 to shareholders who are offered securities in a business combination and are required to decide \"whether to accept a new or different security in exchange for their existing security.\" SEC Rule 145, 17 C.F.R. § 230.145 (preliminary note). While the rule extends to reclassifications of stock, it explicitly exempts stock splits from the reclassification rubric. See SEC Rule 145, 17 C.F.R. § 230.145. The upshot of this carve-out is unmistakable: the SEC does not consider shares received in conjunction with a stock split to constitute a \"new or different security.\"\n \n \n 43\n To cinch matters, while no Massachusetts statute defines the term \"reclassification of stock,\" two states have enacted pertinent statutes. Under Louisiana law, a reclassification of stock is defined as\n \n \n 44\n amendment of the articles to change the authorized number of shares of an existing class or series; to authorize shares of a new class or series; to change the designation, par value (including change of par-value shares to shares without par value or vice versa), preferences, limitations or relative rights, including cancellation or modification of the right to receive accumulated dividends which have not been declared, or variations in relative rights, of the issued, and authorized but unissued, shares of any existing class or series; or to change the issued shares of any existing class or series into a greater or smaller number of shares of the same class or series (subject to such changes as the reclassification may make in the designation, par value, preferences, limitations or relative rights or variations in relative rights, thereof) or of another class or series, and to cancel any issued shares in connection with a reduction in the number thereof.\n \n \n 45\n La. Rev. Stat. Ann. § 12:1 (West 2000). The stock split effected by Level 3 implicates none of the categories established by the Louisiana legislature.4\n \n \n 46\n Pennsylvania's statutory definition goes one step further; it expressly provides that the term \"reclassification\" excludes \"a stock dividend or split effected by distribution of [the company's] own previously authorized shares pro rata to the holders of shares of the same or any other class or series pursuant to action solely of the board of directors.\" 15 Pa. Con. Stat. Ann. § 1103 (West 2001).\n \n \n 47\n Although this case must be decided under Massachusetts law, we regard these statutes and rules as relevant and informative. Cf. Ambrose v. New Engl. Ass'n of Schs. & Colls., Inc., 252 F.3d 488, 497-98 (1st Cir. 2001) (noting that, in exercising diversity jurisdiction, a federal court should consult case law from other jurisdictions when the forum state's highest court has not yet spoken). Moreover, they afford enlightenment as to common usage and as to what a reasonable person would (or would not) consider to be encompassed within the ambit of a particular term. So viewed, these statutes and rules reinforce our intuition that the term \"reclassification of stock\" does not encompass a stock split.5\n \n \n 48\n To say more on this point would be supererogatory. Since Level 3's declaration of a stock split did not authorize a new class of stock, change the shareholders' proportionate ownership, alter the par value of the shares, or otherwise modify shareholders' voting rights or preferences, that action did not constitute a reclassification of stock.\n \n \n 49\n E. The Overall Plan of Reorganization.\n \n \n 50\n The appellant also makes a conclusory claim that the July 1998 stock split was part and parcel of a comprehensive corporate reorganization (and, thus, animated the warrant's antidilution provision). He did very little to develop this claim below, and he has not remedied that shortfall on appeal. For that reason, we deem the claim abandoned. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (explaining that, to preserve a point for appellate review, \"[i]t is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel's work\").\n \n \n 51\n In any event, the claim lacks merit. As best we can understand it, the appellant hypothesizes that the stock split was an offshoot of a corporate reorganization launched by Level 3 in 1997. In that year, Level 3 shifted direction away from construction and mining activities in order to pursue its interests in communications and business services. Between August 1997 and May 1998, the company dramatically modified its capital structure by splitting off its construction business and eliminating two series of stock. Although none of these transactions involved XCOM or otherwise impacted the appellant, he implies that the July 1998 stock split, effected to increase the marketability of the company's shares as a prelude to raising capital in the public markets, should be viewed as an essential component of the company's overall capital reorganization and stock reclassification, thereby triggering the warrant's antidilution provision.\n \n \n 52\n We reject the appellant's intimation that the stock split is magically transformed into a capital reorganization or reclassification of stock based upon its inclusion in a long-term business plan that also contains a number of more complex financial maneuvers. Taken to its logical extreme, the appellant's argument invites us to deem any corporate activity engaged in by Level 3 while in the midst of reorganizing its capital structure as a capital reorganization and reclassification of stock. We are unable to perceive any principled basis on which we could accept this invitation.\n \n \n 53\n F. The Expert's Affidavit.\n \n \n 54\n Striving to stem this tide, the appellant hawks an affidavit from a Boston attorney specializing in securities law and corporate finance. This affidavit arguably embodies an expert opinion that the phrases \"capital reorganization\" and \"reclassification of stock\" each cover stock splits. The appellant seeks to forestall summary judgment on the strength of this opinion.\n \n \n 55\n We need not evaluate the affidavit's probative value. Level 3 responded to it by filing a motion to strike and, even though the district court neither referenced the affidavit nor acted explicitly on Level 3's motion to strike, the most sensible reading of the record is that the court impliedly granted the motion. Cf. Wimberly v. Clark Controller Co., 364 F.2d 225, 227 (6th Cir. 1966) (\"While it is certainly the better practice to specifically rule on all pending motions, the determination of a motion need not always be expressed but may be implied by an entry of an order inconsistent with granting the relief sought.\").\n \n \n 56\n It has long been accepted that a trial court may implicitly deny a motion by entering judgment inconsistent with it. In re Grand Jury Subpoena (Newparent, Inc.), F.3d , (1st Cir. 2001) [No. 01-1975, slip op. at 24]; Lewry v. Town of Standish, 984 F.2d 25, 27 (1st Cir. 1993). In the same way, a court may grant a motion by taking an action consistent with the relief sought in the motion. E.g., Smartt v. Coca-Cola Bottling Corp., 337 F.2d 950, 951 (6th Cir. 1964). So here: we think that the lower court, by disregarding the Guest affidavit, plainly signaled its approval of the motion to strike.\n \n \n 57\n Disregarding the affidavit was amply justified in this instance. The Civil Rules mandate that, in the course of pretrial discovery, \"a party shall disclose to other parties the identity of any person who may be used at trial to present [expert opinion evidence].\" Fed. R. Civ. P. 26(a)(2)(A). Furthermore, a party retaining an expert must also submit to opposing counsel a detailed report covering, inter alia, the expert's qualifications, the gist of his opinion, and the sources of information underlying that opinion. Id. 26(a)(2)(B).\n \n \n 58\n These directives are mandatory and self-executing. In Massachusetts, Local Rule 26.4 implements them and delineates special procedures regarding the automatic disclosures required by Rule 26(a)(2). See D. Mass. R. 26.4(a) (stating that, unless otherwise ordered, such disclosures \"shall be made at least 90 days before the final pretrial conference\").6 The appellant made none of these disclosures during the discovery period and his submission of the Guest affidavit on February 9, 2001 -- more than three months after the close of discovery and fewer than three weeks before the scheduled final pretrial conference -- was nothing short of a sneak attack.\n \n \n 59\n The expert disclosure requirements are not merely aspirational, and courts must deal decisively with a party's failure to adhere to them. The Civil Rules provide in pertinent part that a party who \"without substantial justification fails to disclose information required by Rule 26(a) . . . is not, unless such failure is harmless, permitted to use as evidence . . . any witness or information not so disclosed.\" Fed. R. Civ. P. 37(c)(1); see also D. Mass. R. 26.4(b)(1) (providing for preclusion of expert witnesses not seasonably identified). We have explained before that Rule 37(c)(1) \"clearly contemplates stricter adherence to discovery requirements, and harsher sanctions for breaches of this rule, and the required sanction in the ordinary case is mandatory preclusion.\" Klonoski v. Mahlab, 156 F.3d 255, 269 (1st Cir. 1998).\n \n \n 60\n On the face of things, there are two possible reasons why Rule 37(c)(1) might not apply in this situation. First, the rule places a burden on the objecting party to move for preclusion. But that requirement was satisfied here: Level 3 filed a timely motion to strike the expert's affidavit. In the context of a summary judgment proceeding, that was tantamount to a motion for preclusion. Second, Rule 37(c)(1) traditionally has been invoked to bar expert testimony at trial. Withal, the rule's phraseology applies with equal force to motions for summary judgment. See Fed. R. Civ. P. 37(c)(1) (stating, inter alia, that the court may preclude a party who fails to satisfy the disclosure requirements of Rule 26(a) from \"us[ing] as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed\"). The case law confirms our reading of the rule. E.g., Trost v. Trek Bicycle Corp., 162 F.3d 1004, 1007-09 (8th Cir. 1998) (applying Rule 37(c)(1) to exclude, during the summary judgment stage, affidavits by experts who were not adequately disclosed before the close of discovery); Black v. Columbus Pub. Schs., 124 F. Supp. 2d 550, 561 (S.D. Ohio 2000) (same).\n \n \n 61\n We are cognizant that Rule 37(c)(1) contains a narrow escape hatch that allows the court to admit belatedly proffered expert evidence if the proponent's failure to reveal it was either substantially justified or harmless. Neither branch of the exception applies here. The appellant's response to the motion to strike Guest's affidavit was completely bereft of any explanation for neglecting to identify the expert before the close of discovery, and prejudice is apparent. The appellant's failure to unveil his expert until after Level 3 had moved for summary judgment deprived Level 3 of the opportunity to depose the proposed expert, challenge his credentials, solicit expert opinions of its own, or conduct expert-related discovery. This is exactly the type of unfair tactical advantage that the disclosure rules were designed to eradicate. See Thibeault v. Square D. Co., 960 F.2d 239, 244 (1st Cir. 1992) (explaining that expert disclosure rules were promulgated to facilitate a \"fair contest with the basic issues and facts disclosed to the fullest practical extent\"). Accordingly, we hold that the district court appropriately disregarded the belatedly proffered affidavit based upon the appellant's total failure to comply with the disclosure provisions set forth in Rule 26(a)(2).\n \n \n 62\n G. The Denouement.\n \n \n 63\n Without the affidavit, the appellant plainly is fishing in an empty stream. We have found no legal usage of the terms \"capital reorganization\" or \"reclassification of stock\" that supports the proposition that a reasonable person plausibly could have believed that either term encompassed a stock split. This is made crystal clear when one contrasts the warrant received by the appellant with a warrant issued by XCOM approximately ten months earlier to a different party -- a warrant that contained more than six full pages of antidilution protections (including explicitly-worded share adjustments for stock splits and stock dividends). Moreover, the appellant has failed to adduce any credible evidence that the parties here somehow intended to adopt such an unusually expansive interpretation of the terms \"capital reorganization\" and/or \"reclassification of stock.\"\n \n \n 64\n If more were needed -- and we doubt that it is -- the maxim expressio unius est exclusio alterius instructs that, \"when parties list specific items in a document, any item not so listed is typically thought to be excluded.\" Smart, 70 F.3d at 179. Here, the warrant's antidilution protection extended expressly to five designated contingencies: capital reorganizations, reclassification of the common stock, merger, consolidation, or sale of all (or substantially all) the capital stock or assets. Since nothing within the four corners of the warrant hints at additional contingencies, we apply this maxim and conclude that the parties intended stock splits to be excluded from the list of events capable of triggering the share adjustment machinery.\n \n \n 65\n The appellant is left, then, with his reliance on the principle of contra proferentum -- the hoary aphorism that ambiguities must be construed against the drafter of an instrument. E.g., Merrimack Valley Nat'l Bk. v. Baird, 363 N.E.2d 688, 690 (Mass. 1977). This reliance is mislaid. In order to invoke this principle, the proponent first must demonstrate that there is an ambiguity. Shea v. Bay State Gas Co., 418 N.E.2d 597, 602 (Mass. 1981). Here, the appellant has failed to show that the interpretation which he urges is, \"under all the circumstances, a reasonable and practical one.\" Id. Accordingly, we have no occasion to apply the principle of contra proferentum.\n \n \n 66\n IV. THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING\n \n \n 67\n Although the terms \"capital reorganization\" and \"reclassification of stock,\" as they appear in the warrant, are inherently unambiguous and do not encompass stock splits, the appellant mounts one further attack. He posits that Level 3 had a legal obligation, under the implied contractual covenant of good faith and fair dealing, to provide him with personalized, advance warning of the stock split. The appellant further argues that Level 3 breached this obligation by failing to advise him specifically about the adverse impact that the stock split would have on the warrant if the appellant did not exercise it before the record date. This argument lacks force.\n \n \n 68\n Under Massachusetts law, every contract includes an implied duty of good faith and fair dealing. Anthony's Pier Four, Inc. v. HBC Assocs., 583 N.E.2d 806, 820 (Mass. 1991). This implied covenant forbids a party from doing \"anything which will have the effect of destroying or injuring the rights of the other party to receive the fruits of the contract.\" Drucker v. Roland Wm. Jutras Assocs., 348 N.E.2d 763, 765 (Mass. 1976) (quoting Uproar Co. v. Nat'l Broadcasting Co., 81 F.2d 373, 377 (1st Cir. 1936)).\n \n \n 69\n The most prominent flaw in the appellant's attempt to wield this club is that he misperceives the fruits of the bargain that he struck. After all, a warrantholder does not become a shareholder unless and until he exercises his purchase option. See Gandal v. Telemundo Group, Inc., 23 F.3d 539, 546 (D.C. Cir. 1994); see also Fletcher, supra at § 2641 (\"A warrant holder becomes a shareholder on the date that he or she attempts to exercise his or her warrant.\"). Consequently, a warrantholder's right to insist that the corporation maintain the integrity of the shares described in the warrant, if it exists at all, must be found in the text of the warrant itself. Helvering v. S.W. Consol. Corp., 315 U.S. 194, 200-01 (1942). Put another way, the fruits of the contract were limited to those enumerated in the warrant.\n \n \n 70\n An examination of the warrant reveals quite clearly that Level 3 was not contractually bound to provide the appellant with individualized notice of the stock split. The warrant contained language stating that \"[u]ntil the exercise of this Warrant, the Holder shall not have or exercise any rights by virtue hereof as a stockholder of the Company.\" This disclaimer hardly could have been written more plainly.\n \n \n 71\n Furthermore, the warrant contained a notice provision which, by its terms, pertained to \"notices, requests and other communications hereunder.\" Applying the settled definition of \"hereunder,\" Level 3 was only obligated to provide notice for events contemplated in the warrant agreement. See VII Oxford English Dict. 165 (2d ed. 1989) (defining \"hereunder\"). Because the warrant contained no provision that even arguably required Level 3 to furnish individualized notice of the stock split to the appellant, the failure to give such notice could not constitute a breach of the implied duty of good faith and fair dealing.7\n \n \n 72\n An illustrative case is FDIC v. LeBlanc, 85 F.3d 815 (1st Cir. 1996). There, the defendant acquired a parcel of property with borrowed funds, securing the loan with a mortgage and personal guaranty. Id. at 817. The FDIC, as receiver, succeeded to the lender's interests. Id. at 818. When it sought to collect on the guaranty, the defendant asserted that it had breached the implied duty of good faith and fair dealing under Massachusetts law by refusing to take steps desired by the defendant but not required by the loan documents. Id. at 821-22. Discerning no evidence that the FDIC had deprived the defendant of the benefits of the loan agreement, we upheld an order for summary judgment in favor of the FDIC. Id. at 822. We emphasized that, in the absence of an agreement to do particular acts, Massachusetts law imposed no obligation on the FDIC to take the \"affirmative steps\" that would have benefitted the borrower. Id. While we readily acknowledged that the FDIC had taken a \"hard-nosed\" approach, we pointed out that it had \"no duty at all\" under the loan documents to act in the borrower's interest. Id. So it is here: Level 3 was under no obligation to act affirmatively by providing the appellant with individualized notice in the absence of a provision to that end in the warrant itself.\n \n V. CONCLUSION\n \n 73\n We need go no further. In light of the appellant's inability to show that a reasonable person plausibly could construe either \"capital reorganization\" or \"reclassification of stock\" to include stock splits, we conclude that these terms, as they appear in the warrant, were unambiguous and did not cover the contingency of a stock split effected as a stock dividend. It follows that the stock split in question here did not trip the warrant's antidilution provision. By like token, Level 3 did not breach the implied covenant of good faith and fair dealing by neglecting to give special notice beyond what the warrant itself required. The bottom line, then, is that the district court was correct in granting Level 3's motion for summary judgment.\n \n \n 74\n Affirmed.\n \n \n \n Notes:\n \n \n 1\n A corporation effects a \"stock split\" by increasing the number of shares outstanding without changing the proportional ownership interests of each shareholder. Companies typically execute a stock split by issuing a \"stock dividend\" to current shareholders, i.e., \"paid in stock expressed as a percentage of the number of shares already held by a shareholder.\" Black's Law Dict. 493 (7th ed. 1999) (cross-referencing definition of \"dividend\"). Stock splits lower the price per share, thereby fostering increased marketability and wider distribution of shares.\n Technically, not all stock dividends are stock splits, and the two may, in limited instances, receive different accounting treatment. In the instant matter, however, \"stock split\" and \"stock dividend\" are two sides of the same coin, and we use the terms interchangeably.\n \n \n 2\n This provision read in pertinent part:\n [E]ach Debenture shall after such capital reorganization . . . be convertible into the kind and amount of shares of stock or other securities or property of the Guarantor . . . to which the holder of the number of shares of Common Stock deliverable (immediately prior to the time of such capital reorganization . . .) upon conversion of such Debenture would have been entitled upon such capital reorganization.\n Prescott, 531 F. Supp. at 215.\n \n \n 3\n The appellant attempts to leverage a solitary dictum from Commissioner of Internal Revenue v. Marshman, 279 F.2d 27 (6th Cir. 1960), into a broad proposition that stock splits are the functional equivalent of capital reorganizations. The reference, contained not in the Marshman court's analysis but in its factual overview, id. at 29, had no bearing on the merits of the case (which dealt with the tax liabilities stemming from a husband's surrender of a stock-purchase option, pursuant to a divorce and property settlement). Accordingly, Marshman does not advance the appellant's cause.\n \n \n 4\n While Louisiana's definition of \"reclassification of stock\" encompasses a \"change in the issued shares of any existing class or series into a greater or smaller number of shares of the same class or series,\" we believe that a stock split effected as a stock dividend does not trigger this contingency. The stock split at issue did not involve a change in the \"issued\" Level 3 shares, but, rather, the issuance of new Level 3 shares. The distinction is subtle, but it is real: the Louisiana reclassification rubric is designed to have effect when changes in the voting rights, proportional ownership, and dividend entitlement of previously issued shares are on the agenda. That was not the case here.\n \n \n 5\n We note that the corporate codes of two other states likewise contain references to stock reclassifications that fortify our reading of Massachusetts law. See Cal. Corp. Code App. § 1902 (West 2000) (listing accounting requirements for \"reclassification of outstanding shares into shares of another class\"); Md. Code Ann., Corps. & Ass'ns § 2-208 (West 2000) (requiring filing of supplemental articles if \"board of directors classifies or reclassifies any unissued stock by setting or changing the preferences\").\n \n \n 6\n In the case at bar, the final pretrial conference was scheduled to be held on February 26, 2001. Counting backwards ninety days, the Local Rules required the parties to make the disclosures in question by November 28, 2000.\n \n \n 7\n We note in passing that Level 3's general press release announced the stock split ten days in advance of the record date and provided the appellant with constructive notice of the stock split. Thus, the appellant had ample opportunity to exercise the warrant and avoid the dilutive effects of which he now complains.\n \n \n ",
"ocr": false,
"opinion_id": 199704
}
] |
First Circuit
|
Court of Appeals for the First Circuit
|
F
|
USA, Federal
|
2,508,387 | null | 2012-04-12 | false |
weels-v-coastal-cardiology-associates
|
Weels
|
Weels v. Coastal Cardiology Associates
| null | null | null | null | null | null | null | null | null | null | null | null | 1 |
Published
| null | null |
[
"724 S.E.2d 911"
] |
[
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": null,
"author_id": null,
"opinion_text": "\n724 S.E.2d 911 (2012)\nTerry WEELS, Employee\nv.\nCOASTAL CARDIOLOGY ASSOCIATES, Employer,\nSelective Insurance Company, Carrier.\nNo. 34P12.\nSupreme Court of North Carolina.\nApril 12, 2012.\nAshley Baker White, Raleigh, for Coastal Cardiology Associates, et al.\nBrian Jarrod Kromke, Wilmington, for Coastal Cardiology Associates, et al.\nAshley M. Edwards, for Wells, Terry.\n\nORDER\nUpon consideration of the petition filed by Defendants on the 24th of January 2012 for Writ of Supersedeas of the judgment of the Court of Appeals, the following order was entered and is hereby certified to the North Carolina Court of Appeals:\n\"Denied by order of the Court in conference, this the 12th of April 2012.\"\nUpon consideration of the petition filed on the 24th of January 2012 by Defendants in *912 this matter for discretionary review of the decision of the North Carolina Court of Appeals pursuant to G.S. 7A-31, the following order was entered and is hereby certified to the North Carolina Court of Appeals:\n\"Denied by order of the Court in conference, this the 12th of April 2012.\"\n",
"ocr": false,
"opinion_id": 2508387
}
] |
Supreme Court of North Carolina
|
Supreme Court of North Carolina
|
S
|
North Carolina, NC
|
2,711,310 | null | 2014-01-30 | false |
township-of-richmond-v-rondigo-llc
| null |
Township of Richmond v. Rondigo LLC
| 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/20140130_S147175_90_147175_2014-01-31_or.pdf",
"author_id": null,
"opinion_text": "Order Michigan Supreme Court\n Lansing, Michigan\n\n January 31, 2014 Robert P. Young, Jr.,\n Chief Justice\n\n Michael F. Cavanagh\n Stephen J. Markman\n 147175(88) Mary Beth Kelly\n Brian K. Zahra\n Bridget M. McCormack\n David F. Viviano,\n TOWNSHIP OF RICHMOND, Justices\n Plaintiff-Appellee,\n v SC: 147175\n COA: 304444\n Macomb CC: 2006-001054-CZ\n RONDIGO, L.L.C., 2006-004429-CZ\n Defendant-Appellant.\n\n _________________________________________/\n\n On order of the Court, the motion for reconsideration of this Court’s October 11,\n 2013 order is considered, and it is DENIED, because it does not appear that the order was\n entered erroneously.\n\n ZAHRA, J., did not participate because he was on the Court of Appeals panel at an\n earlier stage of the proceedings.\n\n\n\n\n I, Larry S. Royster, 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 January 31, 2014\n d0127\n Clerk\n\f",
"ocr": false,
"opinion_id": 2711310
}
] |
Michigan Supreme Court
|
Michigan Supreme Court
|
S
|
Michigan, MI
|
1,522,018 |
Andrew J. Peck
| 2009-12-15 | false |
sash-v-united-states
|
Sash
|
Sash v. United States
|
Eliot S. SASH, Plaintiff, v. the UNITED STATES of America, Et Al., Defendants
|
Eliot S. Sash, Closter, NJ, pro se., David Vincent Bober, U.S. Attorney’s Office, New York, NY, for Defendants.
| null | null | null | null | null | null | null | null | null | null | 9 |
Published
| null |
<parties id="b571-4">
Eliot S. SASH, Plaintiff, v. The UNITED STATES of America, et al., Defendants.
</parties><br><docketnumber id="b571-6">
No. 08 Civ. 8332(AJP).
</docketnumber><br><court id="b571-7">
United States District Court, S.D. New York.
</court><br><decisiondate id="b571-9">
Dec. 15, 2009.
</decisiondate><br><attorneys id="b572-12">
<span citation-index="1" class="star-pagination" label="532">
*532
</span>
Eliot S. Sash, Closter, NJ, pro se.
</attorneys><br><attorneys id="b572-13">
David Vincent Bober, U.S. Attorney’s Office, New York, NY, for Defendants.
</attorneys>
|
[
"674 F. Supp. 2d 531"
] |
[
{
"author_str": "Peck",
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": null,
"author_id": null,
"opinion_text": "\n674 F. Supp. 2d 531 (2009)\nEliot S. SASH, Plaintiff,\nv.\nThe UNITED STATES of America, et al., Defendants.\nNo. 08 Civ. 8332(AJP).\nUnited States District Court, S.D. New York.\nDecember 15, 2009.\n*532 Eliot S. Sash, Closter, NJ, pro se.\nDavid Vincent Bober, U.S. Attorney's Office, New York, NY, for Defendants.\n\nOPINION AND ORDER\nANDREW J. PECK, United States Magistrate Judge:\nPro se plaintiff Eliot S. Sash brings this action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), alleging that: (1) individual defendants United States Probation Officers Dave Mulcahy and Kevin Mulcahy used excessive force while arresting Sash in violation of his Fourth Amendment rights; and (2) individual defendants Deputy Chief Probation Officer James Blackford and Supervising Probation Officer Peter Merrigan failed to properly train and supervise their subordinates, failed to implement systems that could have prevented the alleged constitutional violation, allowed a policy that violated Sash's rights and \"deliberately and maliciously refus[ed] to prevent\" the alleged violations of his constitutional rights. (Dkt. No. 17: 2d Am. Compl. ¶¶ 4-8.)[1] Sash also asserts a claim against the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., for the actions of its employees. *533 (2d Am. Compl. ¶ 2.) Sash seeks monetary damages. (2d Am. Compl. ¶¶ 2, 9.)\nDefendants move for summary judgment as to the Bivens claims, arguing that: (1) supervisory defendants Blackford and Merrigan are not liable because they had no personal involvement in the use of force during Sash's arrest and because there is no Bivens cause of action for supervisory liability; (2) all individual defendants are entitled to summary judgment because the Court need not credit Sash's unsupported allegations which, even if true, do not rise to the level of a constitutional violation. (Dkt. No. 23: Notice of Motion; Dkt. No. 24: Defs. Br. at 9-18.)\nThe parties have consented to disposition of this case by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 10: § 636(c) Consent Form; see also Dkt. No. 11: 3/19/09 Hearing Tr. at 16-17.)\nFor the reasons set forth below, defendants' summary judgment motion (Dkt. No. 23) is GRANTED as to defendants Blackford and Merrigan, and DENIED as to defendants Dave Mulcahy and Kevin Mulcahy. Trial is scheduled to begin January 6, 2010 at 9:00 a.m.\n\nFACTS\n\nBackground\nOn September 30, 2003, Sash pled guilty in the United States District Court for the Southern District of New York to charges that he produced and sold counterfeit law enforcement badges. See United States v. Sash, 396 F.3d 515, 518 (2d Cir.2005).[2] Sash was sentenced to twenty-seven months imprisonment and two years and nine months of supervised release. United States v. Sash, 396 F.3d at 520, 525. (See Bober Aff. Ex. D: United States v. Sash, 02 Cr. 1519, 8/17/05 Amended Judgment.) In addition to the standard conditions of supervised release, the sentencing court imposed the following special condition:\nThe [defendant] shall not possess any law-enforcement equipment, such as New York Police Department shields and badges, that he is not authorized to possess. Nor shall he possess any raw materials, inventory, or badge components that could be used to manufacture law-enforcement equipment that he is not authorized to manufacture.\n(8/17/05 Amended Judgment at p. 4.)\nUpon release from prison, Sash was placed under the supervision of United States Probation Officer Janice Fink. (Dkt. No 26: Blackford Aff. ¶ 3.) In early March 2006, during an unannounced visit to Sash's New Jersey home, Officer Fink observed items that appeared to be prohibited by the special conditions of Sash's supervised release. (Blackford Aff. ¶ 5.) On March 6, 2006, probation officers, including defendant James Blackford, searched Sash's home and found \"a large number of prohibited law-enforcement-related items,\" including police uniforms and law enforcement badges. (Blackford Aff. ¶ 6.) Sash was not at home at the time of the search. (Bober Aff. Ex. F: Garland-Sash Dep. at 16, 20; Blackford Aff. ¶ 7; Dkt. No. 17: 2d Am. Compl. ¶ 19.)\n*534 Later that morning, after returning to his Manhattan office, Blackford telephoned Sash. (See Bober Aff. Ex. B: Sash Dep. at 35-37, 43; Blackford Aff. ¶ 8; 2d Am. Compl. ¶¶ 20-21.) Sash was in lower Manhattan, not far from the Probation Department office, working as an actor on a movie set. (Garland-Sash Dep. at 20; 2d Am. Compl. ¶ 19 & n. 1.) Sash agreed to report to the Probation Department office after completing his work for the day. (Sash Dep. at 37; Bober Aff. Ex. E: Blackford Dep. at 64; Blackford Aff. ¶ 8.) Sash spoke with Blackford twice more that afternoon, at 1:10 p.m. and 1:25 p.m., reiterating that he would report to the Probation Department office when he was finished work. (Sash Dep. at 35-37.) After more time had passed and Sash still had not reported, Blackford consulted with defendant Peter Merrigan (see Bober Aff. Ex. G: Merrigan Dep. at 38) and decided that Sash should be arrested due to a concern that he would not surrender voluntarily. (Blackford Aff. ¶ 10.) Officer Timothy Murphy and defendants Merrigan, Dave Mulcahy and Kevin Mulcahy were dispatched to the movie set to arrest Sash. (Blackford Aff. ¶ 10.)\n\nSash's Arrest\nSash was arrested at the corner of Front and Beekman Streets in lower Manhattan. (Dkt. No. 25: Bober Aff. Ex. B: Sash Dep. at 51.) Sash and another actor, Shawn Alexander, were walking towards the \"holding area\" where he would sign his daily work voucher. (Sash Dep. at 52; Bober Aff. Ex. H: Alexander Dep. at 43; Dkt. No. 17: 2d Am. Compl. ¶ 22.) As Sash approached the corner, a car came \"screeching up\" and three men jumped out. (Sash Dep. at 51.) According to Sash, the three men, later identified as Probation Officers Murphy, Dave Mulcahy and Kevin Mulcahy,[3] did not identify themselves as law enforcement officers, nor were they wearing any identification. (Sash Dep. at 51-53.) In contrast, Dave Mulcahy and Kevin Mulcahy testified that when they approached Sash, they did identify themselves. (Bober Aff. Ex. I: Dave Mulcahy Dep. at 16; Bober Aff. Ex. J: Kevin Mulcahy Dep. at 8.) According to Sash, Dave and Kevin Mulcahy rushed up to Sash and tackled him to the ground. (Sash Dep. at 51-52; 2d Am. Compl. ¶ 23.)[4] Sash admits that he was held on the ground for five seconds \"at the most.\" (Sash Dep. at 55.) According to Sash, the Mulcahys picked Sash up and threw him against a metal gate. (Sash Dep. at 53, 55, 58.)[5] Sash demanded: \"`[W]ho are you and what do you want?'\" (2d Am. Compl. ¶ 23; see Sash Dep. at 55.) According to Sash, he was told that they were probation officers and that they \"had to make sure [they] got [him].\" (2d Am. Compl. ¶ 23.) Sash was handcuffed, his pockets were emptied, and he was placed in the backseat of the officers' car. (2d Am. Compl. ¶ 24; *535 Sash Dep. at 55.) Sash admits that the entire encounter lasted \"30 seconds at the most.\" (Sash Dep. at 55.)\nAccording to Sash, in the car he felt pain in his back and neck. (Sash Dep. at 55-56.) Officer Murphy loosened Sash's handcuffs to \"take the pressure off.\" (Sash Dep. at 58.) According to Sash, he asked defendant Dave Mulcahy: \"`Why did you have to tackle me? I told Blackford I was coming in,'\" and Mulcahy responded: \"`We had orders that we had to get you.'\" (Sash Dep. at 59.)\nSash was taken to the federal courthouse at 500 Pearl Street to be arraigned for violation of his supervised release. (Sash Dep. at 57; 2d Am. Compl. ¶ 25.) At the courthouse, Sash began to have chest pains. (Sash Dep. at 70-71; 2d Am. Compl. ¶ 25.) Sash took a nitroclycerine pill, but the United States Marshals noted that he looked ill and refused to take custody of him until he was cleared by a medical professional. (Sash Dep. 71-74; 2d Am. Compl. ¶¶ 26-27.) Sash was taken to NYU Downtown Hospital and admitted overnight. (See Bober Aff. Ex. M: NYU Downtown Hosp. Med. Records; 2d Am. Compl. ¶ 27.) He was released the next morning (March 7, 2006), transported back to the courthouse, and arraigned for violation of his supervised release. (See 2d Am. Compl. ¶ 29.)\nOn April 4, 2006, Judge Casey held a supervised release revocation hearing. United States v. Sash, 444 F. Supp. 2d 224, 225 (S.D.N.Y.2006). On August 2, 2006, Judge Casey concluded that there was \"overwhelming evidence\" that Sash had violated his supervised release. Id. at 228.\n\nANALYSIS\n\nI. GOVERNING LEGAL STANDARDS\n\n\nA. Summary Judgment Standard\n\nRule 56(c) of the Federal Rules of Civil Procedure provides that summary \"judgment should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.\" Fed.R.Civ.P. 56(c); see also, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2509-10, 91 L. Ed. 2d 202 (1986); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir.1991).\nThe burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608, 26 L. Ed. 2d 142 (1970); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir.1994); Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir.1994). The movant may discharge this burden by demonstrating to the Court that there is an absence of evidence to support the non-moving party's case on an issue on which the non-movant has the burden of proof. See, e.g., Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. at 2552-53.\nTo defeat a summary judgment motion, the non-moving party must do \"more than simply show that there is some metaphysical doubt as to the material facts.\" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986). Instead, the non-moving party must \"set out specific facts showing a genuine issue for trial.\" Fed.R.Civ.P. 56(e); accord, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S.Ct. at 1356; Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.2000) (At summary judgment, \"[t]he time has come ... `to put up or shut *536 up.'\") (citations omitted), cert. denied, 540 U.S. 811, 124 S. Ct. 53, 157 L. Ed. 2d 24 (2003).\nIn evaluating the record to determine whether there is a genuine issue as to any material fact, \"[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.\" Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. at 2513.[6] The Court draws all inferences in favor of the nonmoving party only after determining that such inferences are reasonable, considering all the evidence presented. See, e.g., Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir.), cert. denied, 484 U.S. 977, 108 S. Ct. 489, 98 L. Ed. 2d 487 (1987). \"If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper.\" Chambers v. TRM Copy Ctrs. Corp., 43 F.3d at 37.\nIn considering a motion for summary judgment, the Court is not to resolve contested issues of fact, but rather is to determine whether there exists any disputed issue of material fact. See, e.g., Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir.1987); Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986), cert. denied, 480 U.S. 932, 107 S. Ct. 1570, 94 L. Ed. 2d 762 (1987). To evaluate a fact's materiality, the substantive law determines which facts are critical and which facts are irrelevant. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. at 2510. While \"disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment[,] [f]actual disputes that are irrelevant or unnecessary will not be counted.\" Id. at 248, 106 S.Ct. at 2510 (citations omitted); see also, e.g., Knight v. U.S. Fire Ins. Co., 804 F.2d at 11-12.\n\"The Court recognizes that it must `must extend extra consideration' to pro se plaintiffs\" and that \"pro se parties are to be given special latitude on summary judgment motions.\" Salahuddin v. Coughlin, 999 F. Supp. 526, 535 (S.D.N.Y.1998) (Peck, M.J.) (citations & internal quotations omitted); see, e.g., McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.1999) (a pro se party's pleadings should be read liberally and interpreted \"`to raise the strongest arguments that they suggest'\").[7] \"Nevertheless, proceeding pro se does not otherwise relieve a litigant from the usual requirements of summary judgment, and a pro se party's `bald assertion,' unsupported by evidence, is not sufficient to overcome a motion for summary judgment.\" Cole v. Artuz, 93 Civ. 5981, 1999 WL 983876 at *3 (S.D.N.Y. Oct. 28, 1999) (citing cases).[8]\n\n\n*537 B. Federal Claims Brought Pursuant To Bivens v. Six Unknown Agents\n\nUnder Bivens and its progeny, federal courts can hear suits for money damages against federal government officials accused of violating constitutional rights. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 396-97, 91 S. Ct. 1999, 2004-05, 29 L. Ed. 2d 619 (1971); see also, e.g., Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66, 122 S. Ct. 515, 519, 151 L. Ed. 2d 456 (2001) (\"In Bivens ... we recognized for the first time an implied private action for damages against federal officers alleged to have violated a citizen's constitutional rights.\"); Schweiker v. Chilicky, 487 U.S. 412, 421, 108 S. Ct. 2460, 2466, 101 L. Ed. 2d 370 (1988) (\"In [Bivens], this Court held that the victim of a Fourth Amendment violation by federal officers acting under color of their authority may bring suit for money damages against the officers in federal court.\"); Carlson v. Green, 446 U.S. 14, 18-19, 100 S. Ct. 1468, 1471, 64 L. Ed. 2d 15 (1980) (\"Bivens established that the victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right.\"). As Justice Harlan wrote in his oft-cited concurrence in Bivens: \"[F]ederal courts do have the power to award damages for violation of `constitutionally protected interests' and I agree with the Court that a traditional judicial remedy such as damages is appropriate to the vindication of the personal interests protected by the Fourth Amendment.\" Bivens, 403 U.S. at 399, 91 S.Ct. at 2006 (Harlan, J. concurring); see also Erwin Chemerinsky, Federal Jurisdiction § 9.1.2 (5th ed.2007).[9]\n\"`Bivens actions are not significantly dissimilar to claims brought under [42 U.S.C.] §§ 1981 and 1983 in terms of the *538 interests being protected, the relief which may be granted and the defenses which may be asserted.'\" Chin v. Bowen, 833 F.2d 21, 23-24 (2d Cir.1987). \"Because the two actions share the same `practicalities of litigation,' federal courts have typically incorporated § 1983 law into Bivens actions.\" Tavarez v. Reno, 54 F.3d 109, 110 (2d Cir.1995) (citation omitted).[10]\n\nC. Excessive Force Claims\n\nIn Graham v. Connor, the Supreme Court held that \"all claims that law enforcement officers have used excessive force ... in the course of an arrest, investigatory stop, or other `seizure' of a free citizen should be analyzed under the Fourth Amendment and its `reasonableness' standard.\" 490 U.S. 386, 395, 109 S. Ct. 1865, 1871, 104 L. Ed. 2d 443 (1989).[11] \"Determining whether the force used during an arrest is `reasonable' requires balancing the `nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake.'\" Lennon v. Miller, 66 F.3d 416, 425 (2d Cir.1995) (quoting Graham v. Connor, 490 U.S. at 396, 109 S.Ct. at 1872).[12]\nIn recognizing that some degree of force is necessary when effectuating an arrest, the Supreme Court has held that \"`[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers,' violates the Fourth Amendment.\" Graham v. Connor, 490 U.S. at 396, 109 S.Ct. at 1872 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.) (Friendly, J.), cert. denied, 414 U.S. 1033, 94 S. Ct. 462, 38 L. Ed. 2d 324 (1973)); accord, e.g., Lennon v. Miller, 66 F.3d at 425; see, e.g., Jones v. Parmley, 465 F.3d 46, 61 (2d Cir.2006) (\"We are, of course, mindful that the reasonableness inquiry does not allow us to substitute our own viewpoint; we must judge the officer's actions `from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.'\"); Romano v. Howarth, 998 F.2d 101, 105 (2d Cir.1993) (A \"de minimis use of force will rarely suffice to state a constitutional claim.\"). Instead, the standard evaluates the \"reasonableness of the force used by considering the totality of the circumstances faced *539 by the officer on the scene.\" Lennon v. Miller, 66 F.3d at 425 (citing Graham v. Connor, 490 U.S. at 396, 109 S.Ct. at 1872).\n\nII. DEFENDANTS' SUMMARY JUDGMENT MOTION AS TO DEFENDANTS DAVE AND KEVIN MULCAHY IS DENIED\n\n\nA. Tackling is Not \"De Minimus\" Force in This Case\n\nDefendants contend that even if all of Sash's allegations are true, he fails to state a constitutional claim because \"[d]e minimus applications of force during an arrest, such as those described by Sash, do not implicate the Constitution.\" (Dkt. No. 24: Defs. Br. at 17, citing Richardson v. N.Y.C. Health & Hosp. Corp., 05 Civ. 6728, 2009 WL 804096 at *14 (S.D.N.Y. Mar. 25, 2009).)\nThe Court does not agree that Sash's allegations, if true, do not rise to the level of a constitutional violation. Viewed in the light most favorable to Sash, the evidence shows that Sash was tackled and thrown up against a metal gate, after he had made arrangements with the Probation Department to voluntarily surrender. (See pages 533-34 above.) Tackling an arrestee on the street and forcibly shoving him into a metal gate when he offers no resistance certainly could be actionable conduct (although Sash's damages may be minimal). See, e.g., Mills v. Fenger, 216 Fed.Appx. 7, 8-9 (2d Cir.2006) (denying summary judgment on excessive force claim where plaintiff alleged that officer \"`grabbed [him] and threw [him] down'\"); Robison v. Via, 821 F.2d 913, 923-25 (2d Cir.1987) (reversing grant of summary judgment for the defense on excessive force claim that defendant \"`pushed' [plaintiff] against the inside of the door of her car, `yanked' her out, `threw [her] up against the fender,' and `twisted [her] arm behind [her] back.'\"); Williams v. City of N.Y., No. 06 CV 6601, 2009 WL 3254465 at *1-2, 7-8 (E.D.N.Y. Oct. 9, 2009) (denying summary judgment on excessive force claim where plaintiff alleged officers \"rushed and tackled him\" even though he did not struggle or resist); Li v. Aponte, 05 Civ. 6237, 2008 WL 4308127 at *6 (S.D.N.Y. Sept. 16, 2008) (denying summary judgment of excessive force claim where plaintiff alleged that officer repeatedly pushed her up against a column); Lupinacci v. Pizighelli, 588 F. Supp. 2d 242, 250 (D.Conn.2008) (denying summary judgment on excessive force claim where officer allegedly tackled plaintiff where plaintiff did not resist arrest and where officer did not first ask him to voluntarily submit to an arrest). Viewing the totality of circumstances, if the jury credits Sash's description of the arrest, it is difficult to see how the defendants' decision to use such aggressive tactics was objectively reasonable; instead, the facts put forth by Sash indicate that some degree of force less than that allegedly used would have been appropriate under the circumstances.\n\nB. The Extent of Injury is Not Dispositive\n\nDefendants also urge the Court to dismiss the claim due to the short duration of the incident and the lack of physical evidence, such as scraping or bruising, typically associated with the application of force. (Dkt. No. 24: Defs. Br. at 16.) However, while \"the extent of the injury suffered ... is one factor to be considered when determining whether the use of force was excessive, an injury need not be serious in order to give rise to a constitutional claim.\" Ortiz v. Pearson, 88 F. Supp. 2d 151, 160 (S.D.N.Y.2000). Just as reasonable force is not unconstitutional even if it causes serious injury, neither does unreasonable force become immunized from challenge because it causes only minor injury. *540 See, e.g., Robison v. Via, 821 F.2d at 924 (\"While [plaintiff] did not seek medical treatment for her injuries, and this fact may ultimately weigh against her in the minds of the jury in assessing whether the force used was excessive, the failure is not fatal to her claim. If the force used was unreasonable and excessive, the plaintiff may recover even if the injuries inflicted were not permanent or severe.\"); Zhao v. City of N.Y., 656 F. Supp. 2d 375, 390 (S.D.N.Y.2009) (The injury sustained need not be serious to support an excessive force claim where force used was shown to be unreasonable; suggesting that there is no reason that \"the use of completely unjustified force by the police that does not result in physical harm could not yield a constitutional claim for which the appropriate relief would be nominal damages.\"); Espada v. Schneider, 522 F. Supp. 2d 544, 555-56 & n. 12 (S.D.N.Y.2007) (Plaintiff might obtain nominal damages if there was no \"objective justification\" for officer's use of excessive force \"[r]egardless of the limited extent of the injuries plaintiff suffered.\").\nMoreover, even if there were some threshold of injury necessary, Sash has met it, at least sufficiently for nominal damages. Sash insists that the incident caused pain in his neck and back. (See page 535 above.) He reported tightening in his chest one hour after the arrest. (See page 535 above.) According to Sash, the United States Marshals at the courthouse noted that Sash did not look well (see page 535 above), and Sash was treated for chest pain at NYU Downtown Hospital shortly after his arrest. (See page 535 above.) Although Sash's immediate injuries turned out to be minor, the Court cannot find them de minimus as a matter of law. See, e.g., Griffin v. Crippen, 193 F.3d 89, 90-92 (2d Cir.1999) (reversing dismissal of excessive force claim where the only evidence of injury plaintiff intended to offer was his own testimony of a bruised shin and swelling over his left knee); Robison v. Via, 821 F.2d at 924 (plaintiff who alleged only bruises lasting a \"couple weeks,\" and who had never sought medical attention for those injuries, was entitled to submit excessive force claim to jury); see also, e.g., Maxwell v. City of N.Y., 380 F.3d 106, 108-09 (2d Cir.2004) (reversing district court's dismissal of excessive force claim alleging that defendant shoved her head into the police car, where plaintiff alleged shoulder pain, a scrape to her forehead, and was diagnosed with post-concussive syndrome); Gomez v. City of N.Y., 05 Civ. 2147, 2007 WL 5210469 at *7 (S.D.N.Y. May 28, 2007) (Denying summary judgment where plaintiff suffered multiple abrasions and bruises that lasted approximately one week; \"though the plaintiff's alleged injuries may not have been severe, they were not so superficial as to warrant dismissal as a matter of law.\"), report & rec. adopted, 2008 WL 3833811 (S.D.N.Y. Aug. 14, 2008); Pierre-Antoine v. City of N.Y., 04 Civ. 6987, 2006 WL 1292076 at *3 (S.D.N.Y. May 9, 2006) (Lynch, D.J.) (declining to dismiss excessive force claim although \"the medical evidence [made] it less likely that [plaintiff] can prevail at trial, particularly because it does not reveal any severe injury.... It is for the fact-finder to weigh all of this evidence against [plaintiff's] sworn testimony, and to assess whether and to what extent the medical evidence strips that testimony of its credibility.\").\n\nC. Sash's Uncorroborated Testimony is Sufficient to Raise Issues of Fact\n\nFinally, defendants urge the Court to not credit Sash's assertion that he was tackled because there is no evidence, except for Sash's testimony, to support his allegations. (Dkt. No. 24: Defs. Br. at 14.) *541 Defendants argue that \"`[w]hen opposing parties tell two different stories, one if which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.'\" (Defs. Br. at 14, quoting Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 1776, 167 L. Ed. 2d 686 (2007).)\nHowever, \"[i]t is a settled rule that `[c]redibility assessments, choices between conflicting versions of the events, and the weighing of evidence are matters for the jury, not for the court on a motion for summary judgment.'\" McClellan v. Smith, 439 F.3d 137, 144 (2d Cir.2006) (quoting Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir.1997)); see also cases cited at page 536 above.\nThe Court does not find Sash's version of events to be so incredible, or in such discord with other evidence, as to find his allegations \"wholly fanciful.\" Jeffreys v. City of N.Y., 426 F.3d 549, 554 (2d Cir.2005) (\"At the summary judgment stage, a nonmoving party `must offer some hard evidence that its version of the events is not wholly fanciful.'\"); see, e.g., Bennett v. Falcone, 05 Civ. 1358, 2009 WL 816830 at *3-5 (S.D.N.Y. Mar. 25, 2009) (\"Though Plaintiff's evidence is paper-thinit consists primarily of his own testimony and [a witness'] account that [plaintiff] screamed out in painit is nevertheless sufficient to indicate the existence of a disputed material fact as to whether or not [the arresting officer] applied excessive force in effectuating Plaintiff's arrest.\"); Moore v. Casselberry, 584 F. Supp. 2d 580, 583-85 (W.D.N.Y.2008) (\"[J]ust because the plaintiff's claim is based solely upon his own contradictory and incomplete testimony, that does not automatically entitle the defendants to summary judgment. The evidence must be such that no reasonable juror could believe it.\"); Musso v. City of N.Y., No. 05 CV 2511, 2008 WL 3200208 at *1, 6 (E.D.N.Y. July 24, 2008) (denying summary judgment motion where plaintiff alleged that defendant officer punched her, drop-kicked her, and \"rushed forward, flew in the air toward [her], kicked her with both feet, and landed on top of her\" where officer denied this conduct and there was an eight minute video-tape of part of the encounter that depicted no such conduct). Sash consistently has asserted that he was tackled and thrown up against a metal gate while being arrested. (See page 534 above.) Although defendants contend that Sash was not tackled and that he was simply instructed to put his hands up against a metal wall (see page 534 n. 5 above), on a summary judgment motion their testimony is not afforded greater weight than Sash's. While it is true that the neutral witness, Shawn Alexander, does not recall Sash being tackled (see page 534 n. 4 above), his version of events is not entirely divergent from Sash's: both agree on the approximate time and location of the arrest, both agree as to the suddenness of the officers' approach, and both agree that multiple officers placed Sash up against a metal wall (see pages 534-35 above). While Sash's Bivens claim relies almost entirely on his own testimony, one need not \"suspend disbelief\" in order to credit his allegations. Compare Jeffreys v. City of N.Y., 426 F.3d at 555. Nor is it outside the realm of the possible that arresting officers would use force but deny having done so.\nAt the summary judgment stage, Sash's testimony concerning events to which he has personal knowledge constitutes sufficiently credible evidence such that there exists genuine issues of material fact to be decided at trial. Defendants' motion for summary judgment on the Bivens excessive *542 force claim for Officers Dave and Kevin Mulcahy is DENIED.\n\nIII. DEFENDANTS' SUMMARY JUDGMENT MOTION IS GRANTED WITH RESPECT TO SASH'S EXCESSIVE FORCE CLAIM AGAINST DEFENDANTS BLACK-FORD AND MERRIGAN\n\n\nA. Personal Involvement\n\n\"It is well settled in this Circuit that `personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.'\" Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994); accord, e.g., Warheit v. City of N.Y., 271 Fed.Appx. 123, 126 (2d Cir.2008); Dyno v. Village of Johnson City, 240 Fed.Appx. 432, 434 (2d Cir.2007), cert. denied, ___ U.S. ___, 128 S. Ct. 1874, 170 L. Ed. 2d 745 (2008); Farrell v. Burke, 449 F.3d 470, 484 (2d Cir.2006); Gill v. Tuttle, 93 Fed.Appx. 301, 302 (2d Cir.2004); Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 122 (2d Cir.2004); Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir.2003), cert. denied, 543 U.S. 1093, 125 S. Ct. 971, 160 L. Ed. 2d 905 (2005).[13]\nSimilar to a suit brought under 42 U.S.C. § 1983, a Bivens action lies against a defendant only when the plaintiff can show the defendant's personal involvement in the constitutional violation. See, e.g., Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1948, 173 L. Ed. 2d 868 (2009) (\"Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.\"); Thomas v. Ashcroft, 470 F.3d 491, 496 (2d Cir.2006) (\"[I]n Bivens actions, a plaintiff must allege that the individual defendant was personally involved in the constitutional violation.\"); Barbera v. Smith, 836 F.2d 96, 99 (2d Cir.1987), cert. denied, 489 U.S. 1065, 109 S. Ct. 1338, 103 L. Ed. 2d 808 (1989); Garcia v. Watts, 08 Civ. 7778, 2009 WL 2777085 at *12 (S.D.N.Y. Sept. 1, 2009); Alcantara v. City of N.Y., 646 F. Supp. 2d 449, 456-57 (S.D.N.Y.2009); Parker v. United States, 05 Civ. 5324, 2006 WL 3378684 at *4 (S.D.N.Y. Nov. 15, 2006); Noguera v. Hasty, 99 Civ. 8786, 2000 WL 1011563 at *16 (S.D.N.Y. July 21, 2000) (Peck, M.J.), report & rec. adopted in part, 2001 WL 243535 (S.D.N.Y. Mar. 12, 2001); Mallard v. Menifee, 99 Civ. 0923, 2000 WL 557262 at *3 (S.D.N.Y. May 8, 2000) (\"[T]o establish a Bivens claim, plaintiff must allege facts showing that the individual defendant personally participated in the alleged Constitutional violation.... Supervisors are not liable under Bivens based solely on the alleged misconduct of their subordinates.\") (citing cases).[14]\n*543 It is not enough to show that a defendant \"ultimately supervised those who allegedly violated plaintiff's Constitutional rights.\" Mallard v. Menifee, 2000 WL 557262 at *3 (citing Shannon v. U.S. Parole Comm'n, 97 Civ. 6420, 1998 WL 557584 at *2 (S.D.N.Y. Sept. 2, 1998)). Respondeat superior does not apply in Bivens actions. E.g., Ashcroft v. Iqbal, 129 S.Ct. at 1948; Thomas v. Ashcroft, 470 F.3d at 496; Ellis v. Blum, 643 F.2d 68, 85 (2d Cir.1981); Garcia v. Watts, 2009 WL 2777085 at *12; Vazquez v. Parks, 02 Civ. 1735, 2003 WL 1442087 at *8 (S.D.N.Y. Feb. 4, 2003); Noguera v. Hasty, 2000 WL 1011563 at *16; Querim v. E.E.O.C., 111 F. Supp. 2d 259, 271 (S.D.N.Y.2000), aff'd 9 Fed.Appx. 35 (2d Cir.2001).\nIn 1995, the Second Circuit held that \"[t]he personal involvement of a supervisory defendant may be shown by evidence that: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.\" Colon v. Coughlin, 58 F.3d at 873.[15] However, in 2009, the Supreme Court held that:\nIn a § 1983 suit or a Bivens action where masters do not answer for the torts of their servantsthe term \"supervisory liability\" is a misnomer. Absent vicarious liability, each Government official, his or her title not withstanding, is only liable for his or her own misconduct. In the context of determining whether there is a violation of clearly established right to overcome qualified immunity, purpose rather than knowledge is required to impose Bivens liability on the subordinate for unconstitutional discrimination; the same holds true for an official charged with violations arising from his or her superintendent responsibilities.\nAshcroft v. Iqbal, 129 S.Ct. at 1949. Although the Second Circuit has not weighed in on what remains of Colon after Iqbal, several decisions in this district have concluded that by specifically rejecting the argument that \"a supervisor's mere knowledge of his subordinate's discriminatory purpose amounts to the supervisor's violating the Constitution,\" Ashcroft v. Iqbal, 129 S.Ct. at 1949, Iqbal effectively nullified several of the classifications of supervisory liability enunciated by the Second Circuit in Colon v. Coughlin. See, e.g., Bellamy v. Mount Vernon Hosp., 07 Civ. 1801, 2009 WL 1835939 at *4, 6 (S.D.N.Y. June 26, 2009) (\"Only the first and part of the third Colon categories pass Iqbal's mustera supervisor is only held liable if that supervisor participates directly in the alleged constitutional violation or if that supervisor creates a policy or custom under which unconstitutional practices *544 occurred. The other Colon categories impose the exact types of supervisory liability that Iqbal eliminatedsituations where the supervisor knew of and acquiesced to a constitutional violation committed by a subordinate.\"); accord, e.g., Joseph v. Fischer, 08 Civ. 2824, 2009 WL 3321011 at * 14 (S.D.N.Y. Oct. 8, 2009) (\"[U]nder Iqbal,. . . . [a] defendant is not liable under section 1983 if the defendant's failure to act deprived the plaintiff of his or her constitutional right.\"); Newton v. City of N.Y., 640 F. Supp. 2d 426, 448 (S.D.N.Y. 2009) (\"[P]assive failure to train claims pursuant to section 1983 have not survived the Supreme Court's recent decision in Ashcroft v. Iqbal.\"). While Colon permitted supervisory liability in situations where the supervisor knew of and acquiesced in a constitutional violation committed by a subordinate, these post-Iqbal district court decisions reason that Iqbal's \"active conduct\" standard imposes liability only where that supervisor directly participated in the alleged violation or had a hand in creating a policy or custom under which the unconstitutional practices occurred.\nThese decisions may overstate Iqbal's impact on supervisory liability. Iqbal involved alleged intentional discrimination. Ashcroft v. Iqbal, 129 S.Ct. at 1942. The Supreme Court specifically held that \"[t]he factors necessary to establish a Bivens violation will vary with the constitutional provision at issue.\" Ashcroft v. Iqbal, 129 S.Ct. at 1948. Where the alleged constitutional violation involved \"invidious discrimination in contravention of the First and Fifth Amendments,\" Iqbal held that \"plaintiff must plead and prove that the defendant acted with discriminatory purpose,\" whether the defendant is a subordinate or a supervisor. Ashcroft v. Iqbal, 129 S.Ct. at 1948-49. It was with intent-based constitutional claims in mind, specifically racial discrimination, that the Supreme Court rejected the argument that \"a supervisor's mere knowledge of his subordinate's discriminatory purpose amounts to the supervisor's violating the Constitution.\" Ashcroft v. Iqbal, 129 S.Ct. at 1949. Where the constitutional claim does not require a showing of discriminatory intent, but instead relies on the unreasonable conduct or deliberate indifference standards of the Fourth and Eighth Amendments, the personal involvement analysis set forth in Colon v. Coughlin may still apply.[16]\n\nB. Discussion\n\nRegardless of whether Colon or an Iqbal-limited standard applies, supervisory defendants Blackford and Merrigan are entitled to summary judgment.\nIt is undisputed that defendant Blackford was not present at Sash's arrest, nor is there any evidence that he directed the use of excessive physical force against Sash. (See pages 534-35 above.) Similarly, although defendant Merrigan was present at the scene of the arrest, Sash does not contend that Merrigan ever laid a hand on him, nor does he contend that Merrigan ordered the Mulcahys to use excessive physical force. (See pages 534-35 above.)\nTo the extent Sash argues that Blackford and Merrigan are liable on a *545 theory of bystander liability,[17] he offers no supporting evidence. Sash presents no evidence that Blackford was present at the scene, was aware the Mulcahys were going to use excessive force, or that Blackford had \"a realistic opportunity to intervene to prevent the harm from occurring.\" Anderson v. Branen, 17 F.3d at 557 (\"Whether an officer had sufficient time to intercede or was capable of preventing the harm being caused by another officer is an issue of fact for the jury unless, considering all the evidence, a reasonable jury could not possibly conclude otherwise.\").[18]\nThe claim that defendant Merrigan is liable for failing to intervene at the scene is also without merit. According to Sash's own evidence, the Mulcahys rushed up to him, tackled him to the ground where he was held for five seconds, and then threw him against a metal wall, and the entire incident took less than thirty seconds. (See pages 534-35 above.) No reasonable jury could conclude that defendant Merrigan had a genuine opportunity to intercede. See, e.g., O'Neill v. Krzeminski, 839 F.2d 9, 11-12 (2d Cir.1988) (Police officer was not liable for the use of excessive force by another officer who punched a prisoner in the face three times in rapid succession, because it \"was not an episode of sufficient duration to support a conclusion that [he] ... became a tacit collaborator.\"); Johnson v. City of N.Y., 05 Civ. 7519, 2008 WL 4450270 at *6 (S.D.N.Y. Sept. 29, 2008) (Grants summary judgment for police officers who were accused of failing to prevent the use of excessive force where the alleged force lasted only a couple of seconds.); Jean-Laurent v. Wilkerson, 438 F. Supp. 2d 318, 327 (S.D.N.Y.2006) (Dismisses claims against defendant police officers where another officer slammed plaintiff's head into a wall because the dismissed defendants \"did not have a reasonable opportunity to intervene in such a rapid series of events.\").\nAlthough Sash contends that Blackford and Merrigan should be liable based on their failure to provide necessary and proper training to the Mulcahys, or alternatively, on their failure to implement a policy that would have prevented the use of excessive force, there is no evidence to support these claims. Sash has presented no evidence concerning officer training in any regard: there is no indication that *546 either Blackford or Merrigan were responsible for training the Mulcahys; that either of them failed in that responsibility; that the Mulcahys lacked training; or that the Mulcahys lack of training led to the use of excessive force. Similarly, to the extant Sash alleges that Blackford and Merrigan are liable for failing to create or maintain a policy that would have prevented the use of excessive force, there is no evidence supporting this claim. Sash makes reference to a 162-page United States Probation Department manual, but does not indicate how the existence or absence of any particular policy might have caused or prevented the alleged use of force. (Dkt. No. 32: Sash Letter Br. at 4.) Nor does Sash present evidence concerning whether Blackford or Merrigan were responsible for the creation and maintenance of any policy. Instead, he asserts that Blackford lacked familiarity with the manual's contents. (Sash Letter Br. at 4.) Similarly, Sash points out that Merrigan failed to create an arrest report within twenty-four hours of the arrest, in contravention of Probation Department rules, but does not indicate how that bears on the alleged use of excessive force. (Id.)\nTo survive a motion for summary judgment, Sash cannot just echo the legal standard for supervisory liability, bur rather must submit evidence, and he has failed to do so. See, e.g., Cicio v. Graham, No. 08-CV-534, 2009 WL 537534 at *7 (N.D.N.Y. Mar. 3, 2009) (\"Vague and conclusory allegations that a supervisor has failed to train or properly monitor the actions of subordinate employees will not suffice to establish the requisite personal involvement and support a finding of liability.\"); Hallock v. Bonner, 567 F. Supp. 2d 334, 339 (N.D.N.Y. 2008) (granting summary judgment for federal customs officials where the record was \"devoid of any evidentiary support\" that they created a relevant custom or policy, or acted negligently in their supervisory roles), aff'd 343 Fed.Appx. 633 (2d Cir.2009).[19]\nAccordingly, defendant's motion for summary judgment of the excessive force claims against Blackford and Merrigan is granted.\n\nCONCLUSION\nFor the reasons set forth above, defendant's summary judgment motion (Dkt. No. 23) as to the excessive force claims against supervisory officers Blackford and Merrigan is GRANTED and the summary judgment motion as to the excessive force *547 claims against Officers Dave and Kevin Mulcahy is DENIED.[20]\nSo ordered.\nNOTES\n[1] Although Sash appropriately styles his claims against the individual defendants, all federal agents, as a Bivens action (2d Am. Compl. ¶¶ 7, 32), he also asserts claims against them pursuant to 42 U.S.C. §§ 1983, 1985 & 1986. (See Compl. ¶¶ 32-37.) Section 1983 provides a cause of action against any person:\n\n[W]ho, under color of any statute, ordinance, regulation, custom, or usage, of any State ... 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.\n42 U.S.C. § 1983. The Second Circuit \"has long construed the phrase `under color of state law' as used in ... civil rights statutes, notably 42 U.S.C. § 1983, to apply only to state actors, not federal officials.\" Dotson v. Griesa, 398 F.3d 156, 162 (2d Cir.2005), cert. denied, 547 U.S. 1191, 126 S. Ct. 2859, 165 L. Ed. 2d 894 (2006). Thus, Sash cannot assert claims under sections 1983, 1985, or 1986 against the individual defendants since they are federal agents. See, e.g., Arias v. United States, 05 Civ. 10497, 2007 WL 4157152 at *16 (S.D.N.Y. Nov. 15, 2007) (dismissing § 1983 claims against officials from the Department of Homeland Security because they are federal officials). The Court construes all of Sash's claims against the individual defendants as Bivens claims. See, e.g., Tavarez v. Reno, 54 F.3d 109, 109-10 (2d Cir.1995) (approving district court's recasting of a § 1983 claim brought by pro se inmate against federal officers as Bivens claim); Bender v. General Services Administration, 539 F. Supp. 2d 702, 707 n.4 (S.D.N.Y.2008) (Lynch, D.J.) (construing pro se plaintiff's § 1983 claim against federal security contractors as a Bivens claim).\n[2] See also Dkt. No. 25: Bober Aff. Exs. A & C: 6/23/03 & 9/30/03 Sash Plea Allocutions.\n[3] Defendant Peter Merrigan was also present at Sash's arrest, but Sash did not recall his being there. (Sash Dep. at 57.)\n[4] According to Officer Timothy Murphy, as well as defendants Dave Mulcahy, Kevin Mulcahy and Peter Merrigan, Sash was cooperative throughout the arrest and no force was used, tackling or otherwise. (Bober Aff. Ex. K: Murphy Dep. at 16-17; Merrigan Dep. at 54; Dave Mulcahy Dep. at 16-17; Kevin Mulcahy Dep. at 8.) Shawn Alexander does not recall seeing Sash tackled. (See Alexander Dep. at 62-63; Bober Aff. Ex. L: Alexander Report at 3.)\n[5] According to Shawn Alexander, the officers \"took Mr. Sash to the side\" and placed Sash up against a truck. (Alexander Dep. at 44-45; Bober Aff. Ex. L: Alexander Report at 3.) According to Dave and Kevin Mulcahy, Sash was directed to put his hands on a metal door. (Dave Mulcahy Dep. at 17; Kevin Mulcahy Dep. at 8.) Peter Merrigan denies that Sash was thrown up against a metal door. (Merrigan Dep. at 54.)\n[6] See also, e.g., Feingold v. N.Y., 366 F.3d 138, 148 (2d Cir.2004); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d at 36; Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d at 1223.\n[7] See also, e.g., Ferran v. Town of Nassau, 471 F.3d 363, 369 (2d Cir.2006); Fuller v. Armstrong, 204 Fed.Appx. 987, 988 (2d Cir.2006), cert. denied, 552 U.S. 906, 128 S. Ct. 209, 169 L. Ed. 2d 180 (2007); Gildor v. U.S. Postal Serv., 179 Fed.Appx. 756, 758 (2d Cir.2006); Porter v. Coughlin, 421 F.3d 141, 144 n. 2 (2d Cir.2005); Hemphill v. N.Y., 380 F.3d 680, 687 (2d Cir.2004); Bennett v. Goord, 343 F.3d 133, 137 (2d Cir.2003); Johnson v. Buffalo Police Dep't, 46 Fed.Appx. 11, 12 (2d Cir.2002), cert. denied, 539 U.S. 959, 123 S. Ct. 2645, 156 L. Ed. 2d 658 (2003).\n[8] See also, e.g., United States v. Acomb, No. 99-6308, 216 F.3d 1073 (table), 2000 WL 899482 at *1 (2d Cir. June 29, 2000); James v. Phillips, 05 Civ. 1539, 2008 WL 1700125 at *3 (S.D.N.Y. Apr. 9, 2008); Thompson v. Tracy, 00 Civ. 8360, 2008 WL 190449 at *5 (S.D.N.Y. Jan. 17, 2008); Bunting v. Nagy, 452 F. Supp. 2d 447, 454 (S.D.N.Y.2006); Rodriguez v. McClenning, 399 F. Supp. 2d 228, 234 & n. 52 (S.D.N.Y.2005); Pack v. Artuz, 348 F. Supp. 2d 63, 78 (S.D.N.Y.2004); Rector v. Sylvania, 285 F. Supp. 2d 349, 353 (S.D.N.Y. 2003); Walker v. Vaughan, 216 F. Supp. 2d 290, 296-97 (S.D.N.Y.2002); Hussein v. The Waldorf-Astoria, 134 F. Supp. 2d 591, 596 (S.D.N.Y.2001), aff'd, 31 Fed.Appx. 740 (2d Cir.2002).\n[9] The Supreme Court subsequently expanded the Bivens doctrine to provide money damages for infringements of other constitutional rights by federal officers. See, e.g., Wilkie v. Robbins, 551 U.S. 537, 549-50, 127 S. Ct. 2588, 2597-98, 168 L. Ed. 2d 389 (2007); Farmer v. Brennan, 511 U.S. 825, 828-34, 114 S. Ct. 1970, 1974-78, 128 L. Ed. 2d 811 (1994); Schweiker v. Chilicky, 487 U.S. at 421, 108 S.Ct. at 2466-67 (summarizing causes of action recognized under Bivens); Davis v. Passman, 442 U.S. 228, 243-45, 99 S. Ct. 2264, 2276-77, 60 L. Ed. 2d 846 (1979); see also, e.g., Erwin Chemerinsky, Federal Jurisdiction § 9.1.2 at 611 (\"[I]n subsequent decisions the [Supreme] Court recognized the existence of causes of action for infringements of the Fifth, Eighth and First Amendments. Lower federal courts have recognized Bivens suits for violations of the First, Fourth, Fifth, Eighth, Ninth and Fourteenth Amendments.\") (fns. citing cases omitted); Arar v. Ashcroft, 585 F.3d 559, 571-72 (2d Cir.2009) (The Supreme Court has limited the availability of Bivens claims to Fourth Amendment violations, employment discrimination claims in violation of the Due Process Clause, and Eighth Amendment violations by prison officials.); Dotson v. Griesa, 398 F.3d 156, 165-66 (2d Cir.2005) (recognizing the availability of Bivens claims in the context of Fourth, Fifth, and Eighth Amendment violations); Schweitzer v. Dep't of Veterans Affairs, 23 Fed.Appx. 57, 59 (2d Cir.2001) (\"`Bivens actions' for damages against federal officers [are] permitted for violations of the Due Process Clause of the Fifth Amendment.\"), cert. denied, 535 U.S. 955, 122 S. Ct. 1359, 152 L. Ed. 2d 355 (2002); Tellier v. Fields, 230 F.3d 502, 508 (2d Cir.2000) (Bivens claim based on violations of procedural due process rights under the Due Process Clause of the Fifth Amendment); Noguera v. Hasty, 99 Civ. 8786, 2000 WL 1011563 at *8-9 (S.D.N.Y. July 21, 2000) (Peck, M.J.), report & rec. adopted in part, 2001 WL 243535 (S.D.N.Y. Mar. 12, 2001) (Wood, D.J.).\n[10] See, e.g., Butz v. Economou, 438 U.S. 478, 504, 98 S. Ct. 2894, 2909, 57 L. Ed. 2d 895 (1978) (no \"distinction for purposes of immunity law\" between Bivens and § 1983 claims); Polanco v. U.S. Drug Enforcement Admin., 158 F.3d 647, 653 (2d Cir.1998) (same statute of limitation applies to Bivens and § 1983 claims); Chin v. Bowen, 833 F.2d at 24 (\"[T]here is a `general trend in the appellate courts to incorporate § 1983 law into Bivens suits.'\"); Ellis v. Blum, 643 F.2d 68, 83-84 (2d Cir.1981) (same rule of damages applies to Bivens and § 1983 claims); Garcia v. Watts, 08 Civ. 7778, 2009 WL 2777085 at *12 n.14 (S.D.N.Y. Sept. 1, 2009) (\"`Bivens claims are treated as analogous to claims under 42 U.S.C. § 1983 and incorporate the same law.'\"); DeMartino v. Zenk, No. 04-CV-3880, 2009 WL 2611308 at *8 n. 5 (E.D.N.Y. Aug. 25, 2009); Alcantara v. City of N.Y., 646 F. Supp. 2d 449, 456-57 (S.D.N.Y.2009); Connors v. Heywright, 02 Civ. 9988, 2003 WL 21087886 at *2 n. 1 (May 12, 2003) (Chin, D.J.) (\"In general, case law under § 1983 applies to Bivens cases.\").\n[11] Accord, e.g., County of Sacramento v. Lewis, 523 U.S. 833, 842-43, 118 S. Ct. 1708, 1714-15, 140 L. Ed. 2d 1043 (1998); Russo v. City of Bridgeport, 479 F.3d 196, 208-09 (2d Cir.), cert. denied, 552 U.S. 818, 128 S. Ct. 109, 169 L. Ed. 2d 24 (2007); Bryant v. City of N.Y., 404 F.3d 128, 135-36 (2d Cir.2005).\n[12] See also, e.g., Sullivan v. Gagnier, 225 F.3d 161, 165-66 (2d Cir.2000); Bennett v. Falcone, 05 Civ. 1358, 2009 WL 816830 at *4-5 (S.D.N.Y. Mar. 25, 2009); Richardson v. N.Y.C. Health & Hosp. Corp., 05 Civ. 6278, 2009 WL 804096 at *10 (S.D.N.Y. Mar. 25, 2009); Greenfield v. City of N.Y., 99 Civ. 2330, 2000 WL 124992 at *7 (S.D.N.Y. Feb. 3, 2000) (Peck, M.J.) (citing cases).\n[13] See, e.g., Blyden v. Mancusi, 186 F.3d 252, 264 (2d Cir.1999); Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir.1997); Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995); Allan v. Woods, No. 05-CV-1280, 2008 WL 724240 at *5 (N.D.N.Y. Mar. 17, 2008) (\"Personal involvement is a prerequisite to the assessment of damages in a section 1983 case, and respondeat superior is an inappropriate theory of liability.\"); Tafari v. Annets, 06 civ. 11360, 2008 WL 2413995 at *10 (S.D.N.Y. June 12, 2008) (Peck, M.J.), report & rec. adopted, 2008 WL 4449372 (S.D.N.Y. Oct. 2, 2008); Zamakshari v. Dvoskin, 899 F. Supp. 1097, 1109 (S.D.N.Y.1995) (Sotomayor, D.J. & Peck, M.J.) (\"In order to maintain a cause of action [under § 1983] against any official, a plaintiff must show that the defendant was personally involved in the alleged deprivation of his constitutional rights, since the doctrine of respondeat superior does not apply to § 1983 actions.\").\n[14] See, e.g., Petrazzoulo v. U.S. Marshals Srv., 999 F. Supp. 401, 409 (W.D.N.Y.1998) (\"It is well-settled that a [federal] defendant's personal involvement in the alleged constitutional violation is a prerequisite to an award of money damages.\"); Krebs v. Tutelian, 97 Civ. 0554, 1998 WL 108003 at *5 (S.D.N.Y. Mar. 12, 1998).\n[15] Accord, e.g., Ziemba v. Clark, 167 Fed. Appx. 831, 833 (2d Cir.2006); Samuels v. Selsky, 166 Fed.Appx. 552, 556 (2d Cir.2006); Patterson v. County of Oneida, 375 F.3d 206, 229 (2d Cir.2004); Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d at 127; Hayut v. State Univ. of N.Y., 352 F.3d 733, 753 (2d Cir.2003); Hernandez v. Keane, 341 F.3d at 145; Wright v. Smith, 21 F.3d at 501; see also, e.g., Poe v. Leonard, 282 F.3d 123, 140 (2d Cir.2002).\n[16] See, e.g., Chao v. Ballista, 630 F. Supp. 2d 170, 178 n. 2 (D.Mass. July 1, 2009) (noting that the \"state of mind required to make out a supervisory claim under the Eighth Amendmenti.e., deliberate indifferencerequires less than the discriminatory purpose or intent that Iqbal was required to allege in his suit....\"); Michael Avery et al., Police Misconduct: Law & Litigation § 4:5 (2009) (discussing the impact of Ashcroft v. Iqbal on issue of supervisor liability in section 1983 and Bivens actions).\n[17] \"It is widely recognized that all law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence. An officer who fails to intercede is liable for the preventable harm caused by the actions of the other officers where that officer observes or has reason to know: (1) that excessive force is being used; (2) that a citizen has been unjustifiably arrested; or (3) that any constitutional violation has been committed by a law enforcement official.\" Anderson v. Branen, 17 F.3d 552, 557 (2d Cir.1994) (citations omitted); see also, e.g., Curley v. Village of Suffern, 268 F.3d 65, 72 (2d Cir.2001) (\"[W]e recognize that law enforcement officials have an affirmative duty to intervene to protect against the infringement of constitutional rights from conduct committed by other officers in their presence.\"); Thompson v. Tracy, 00 Civ. 8360, 2008 WL 190449 at *6 (S.D.N.Y. Jan. 17, 2008) (recognizing a police officer's affirmative duty to protect a citizen's constitutional rights from infringement by other officers in their presence).\n[18] Accord, e.g., Thompson v. Tracy, 2008 WL 190449 at *6; see also, e.g., Smith v. P.O. Canine Dog Chas, 02 Civ. 6240, 2004 WL 2202564 at *10 (S.D.N.Y. Sept. 28, 2004) (defendant officers were entitled to summary judgment on excessive force claims based on their failure to intercede because there was \"no evidence to suggest that these officers were [present] ... at the time of the incident.... Nor is there any indication that any of the named defendants would have known, or had reason to believe, that the alleged violation of constitutional rights was occurring.\") (citing cases).\n[19] See also, e.g., Santiago v. City of N.Y., 98 Civ. 6543, 2000 WL 1532950 at *7 (S.D.N.Y. Oct. 17, 2000) (granting summary judgment where there was no evidence that supervisor created a custom or policy under which the alleged constitutional violation occurred); Reid v. Artus, 984 F. Supp. 191, 195 (S.D.N.Y. 1997) (dismissing a prisoner's section 1983 claim against a supervisory official when the pleadings failed to establish \"any factual basis upon which a fact finder could reasonably conclude personal involvement by the supervisory official defendant .... that [defendant] created or continued a policy or custom which allowed the violation to occur, or that [defendant] was grossly negligent in managing the subordinates who caused the unlawful condition.\"); Pravda v. City of Albany, 956 F. Supp. 174, 182 (N.D.N.Y. 1997) (granting summary judgment for supervisory officers in excessive force case because \"Plaintiff [did] not allege any facts from which the Court could reasonably infer that Defendants ... participated in [the] alleged mistreatment, were present when it allegedly occurred, knew about it, or were grossly negligent in any way.\"); Show v. Patterson, 955 F. Supp. 182, 188 (S.D.N.Y.1997) (dismissing case against supervisory defendants where plaintiffs failed to submit evidence indicating that supervisory defendants created or were aware of a policy of violating prisoners' rights by using excessive force, and because the complaint was devoid of any allegations that the defendants were negligent in supervising subordinates).\n[20] If the pro se plaintiff requires copies of any of the cases reported only in Westlaw, plaintiff should request copies from defense counsel. See Lebron v. Sanders, 557 F.3d 76, 79 (2nd Cir.2009); SDNY-EDNY Local Civil Rule 7.1(c).\n\n",
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S.D. New York
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District Court, S.D. New York
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FD
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New York, NY
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2,675,363 | null | 2014-05-22 | false |
district-of-columbia-metropolitan-police-departmen
| null |
District of Columbia Metropolitan Police Department v. District of Columbia Employee Appeals and James O'Boyle
| 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.dccourts.gov/internet/documents/12-CV-1403-AMENDED.pdf",
"author_id": null,
"opinion_text": "Notice: This opinion is subject to formal revision before publication in the\nAtlantic and Maryland Reporters. Users are requested to notify the Clerk of the\nCourt of any formal errors so that corrections may be made before the bound\nvolumes go to press.\n\n DISTRICT OF COLUMBIA COURT OF APPEALS\n\n No. 12-CV-1403\n\n DISTRICT OF COLUMBIA METROPOLITAN\n POLICE DEPARTMENT, APPELLANT,\n\n v.\n\n DISTRICT OF COLUMBIA OFFICE OF\n EMPLOYEE APPEALS AND JAMES O‟BOYLE, APPELLEES.\n\n Appeal from an Order of the\n Superior Court of the District of Columbia\n (MPA-2048-10)\n\n (Hon. Brian F. Holeman, Trial Judge)\n\n\n(Argued January 28, 2014 Decided April 10, 2014)\n\n (Amended May 22, 20141)\n\n Holly M. Johnson, Assistant Attorney General, with whom Irvin B. Nathan,\nAttorney General for the District of Columbia, Todd S. Kim, Solicitor General, and\nDonna M. Murasky, Deputy Solicitor General, were on the brief, for appellant.\n\n Robert E. Deso for appellee James O‟Boyle.\n\n\n\n 1\n This opinion was initially released on April 10, 2014. Subsequently, on\nMay 22, 2014, the language appearing on the penultimate line of the last page was\namended to read, “Accordingly, the order of Superior Court is hereby…” where it\nformerly read, “Accordingly, the OEA‟s order is hereby…”\n\f 2\n\n Lasheka Brown Bassey filed a statement in lieu of brief for appellee District\nof Columbia Office of Employee Appeals.\n\n Before FISHER and THOMPSON, Associate Judges, and PRYOR, Senior Judge.\n\n PRYOR, Senior Judge: Appellant, District of Columbia Metropolitan Police\n\nDepartment (MPD), appeals the decision of the D.C. Superior Court affirming the\n\nDistrict of Columbia Office of Employee Appeals (OEA) order on remand from\n\nthe OEA Board that reversed appellee James O‟Boyle‟s termination from MPD\n\nand reduced his four-month suspension without pay to twenty days. On appeal,\n\nappellant first argues that the OEA erred as a matter of law when it held that the\n\n“indefinite suspension without pay” and subsequent termination of appellee\n\nconstituted unlawful “double punishment” for his driving while intoxicated\n\n(“DWI”) arrest and conviction. Second, appellant argues that the OEA abused its\n\ndiscretion when it found that appellant had not legitimately distinguished appellee\n\nfrom other MPD members arrested and convicted of DWI or driving under the\n\ninfluence of alcohol (DUI) who had not been terminated. We reverse and remand\n\nfor further proceedings consistent with this opinion.\n\n\n\n I.\n\n\n On April 5, 2004, while off-duty, appellee was driving his personal vehicle\n\nwhen he struck another motorist in Virginia and was arrested for driving while\n\f 3\n\nintoxicated (“DWI”), with a blood-alcohol content of .27—more than three times\n\nthe legal limit. The day after the arrest, appellee entered voluntary leave-without-\n\npay status with MPD to pursue treatment for his alcohol addiction, which consisted\n\nof a five-day, in-hospital program, and twenty-seven days residential treatment\n\nprogram.\n\n\n\n On July 21, 2004, appellee was tried and convicted of DWI and sentenced to\n\n180 days in jail with 170 days suspended, his driver‟s license was suspended for a\n\nyear, and he was fined $500. Appellee was incarcerated for ten days. On August\n\n11, 2004, MPD served appellee with advance notice of its intent to change his\n\nstatus from voluntary leave without pay to “Indefinite Suspension Without Pay\n\npending the final outcome of this case.” Appellee appealed to MPD, but his appeal\n\nwas denied on August 30, 2004, and the suspension went into effect on September\n\n14, 2004. MPD‟s final notice of suspension advised appellee that he could appeal\n\nthe suspension to the Chief of Police and also pursue arbitration or appeal to OEA.\n\nThe record does not reveal that appellee pursued these options.\n\n\n\n\n On September 22, 2004, MPD completed its investigation of appellee,\n\nconcluding that he should be cited for adverse action, and on November 8, 2004, it\n\nserved appellee with advance notice of termination. Appellee was advised that he\n\f 4\n\ncould request a hearing, but he did not request a hearing, offer any mitigating\n\nevidence, or contest the facts of MPD‟s investigative report. On December 3,\n\n2004, MPD concluded, based on the evidence in its report, that appellee‟s conduct\n\nwarranted his termination.\n\n\n On December 15, 2004, appellee appealed his termination to the Chief of\n\nPolice, arguing that discipline following his suspension without pay amounted to\n\nan impermissible second disciplinary action for the same conduct and that his\n\ndiscipline was disproportionate to that imposed on other similarly situated MPD\n\nofficers. The Chief of Police denied the appeal and set appellee‟s discharge to be\n\neffective January 8, 2005. On February 1, 2005, appellee appealed his termination\n\nto the OEA, reiterating his arguments as stated earlier. On October 17, 2006, the\n\nOEA upheld the termination, finding that the suspension was only an interim\n\nmeasure, not disciplinary, and that appellee was not similarly situated to the other\n\nMPD employees convicted of DUI or DWI.\n\n\n On appeal, the OEA Board reversed and remanded the OEA‟s decision,\n\nfinding that “suspension of an Employee without pay is a disciplinary adverse\n\naction,” and that appellee‟s “subsequent termination therefore constitutes a double\n\npunishment for the same alleged misconduct.” The Board also found that\n\nappellee‟s termination was unreasonably disproportionate to the penalties imposed\n\f 5\n\non other MPD employees convicted of DUI or DWI. On remand, the OEA\n\nreduced appellee‟s termination to a thirty-day suspension, with ten days held in\n\nabeyance. Appellant appealed the decision of the OEA to the D.C. Superior Court,\n\nwhich affirmed the OEA‟s decision.\n\n\n II.\n\n\n On appeal from the Superior Court, this court reviews decisions of OEA as\n\nthough the appeal has been taken directly to this court. Brown v. District of\n\nColumbia Dep’t of Corr., 993 A.2d 529, 532 (D.C. 2010). “When reviewing an []\n\nOEA decision, we . . . „must affirm the OEA‟s decision so long as it is supported\n\nby substantial evidence in the record and otherwise in accordance with law.‟”\n\nDupree v. District of Columbia Office of Emp. Appeals, 36 A.3d 826, 830 (D.C.\n\n2011) (quoting Settlemire v. District of Columbia Office of Emp. Appeals, 898\n\nA.2d 902, 905 n.4 (D.C. 2006)). “[W]e will only reverse where the OEA‟s action\n\nwas arbitrary, capricious, or an abuse of discretion.” Jahr v. District of Columbia\n\nOffice of Emp. Appeals, 19 A.3d 334, 340 (D.C. 2011) (internal quotations\n\nomitted). In turn, the OEA‟s review of an agency decision “is limited to simply\n\nensur[ing] that managerial discretion has been legitimately invoked and properly\n\nexercised.” Id. (internal quotation omitted). The OEA may not “substitute its\n\njudgment for that of the agency in deciding whether a particular penalty is\n\f 6\n\nappropriate.” Stokes v. District of Columbia, 502 A.2d 1006, 1011 (D.C. 1985)\n\n(quotation omitted). It may overturn the agency‟s decision only if it finds that the\n\nagency “failed to weigh the relevant factors, or that the agency‟s judgment clearly\n\nexceeded the limits of reasonableness.” Id.\n\n\n III.\n\n\n The primary issue in this appeal stems from the order of the OEA which\n\nreversed a termination order relating to appellee and reinstated him as a member of\n\nthe police force. As stated, appellant contends that the OEA erred on two grounds\n\nwhen it vacated the termination order. On the other hand, appellee relies upon the\n\nOEA‟s ruling that his unpaid suspension was an adverse disciplinary action and\n\ntherefore appellant‟s subsequent termination of appellee constituted unlawful\n\n“double punishment” for his conviction of driving a vehicle while intoxicated.\n\nAppellee argues that appellant lost its ability to exercise its statutory authority to\n\nimpose an interim suspension because it failed to cite the pertinent statutory\n\nprovision as the basis for its actions.\n\n\n (A)\n\n\n Before suspending an employee without pay, MPD must provide the\n\nemployee with written notice of the proposed suspension. D.C. Code § 1-\n\f 7\n\n616.54 (c). Notice may be accomplished in person, D.C. Code § 1-616.54 (c), by\n\n“leaving a copy at the employee‟s home with some person of suitable age and\n\ndiscretion who is present,” DCMR 6-B1620.8 (2013), or by reading the notice to\n\nthe employee over the phone prior to actual delivery of the written notice. D.C.\n\nCode § 1-616.54 (c). Written notice must inform the employee of the following:\n\n“(1) The reasons for the proposed enforced leave; (2) The beginning and ending\n\ndates of administrative leave; (3) The beginning date of the proposed enforced\n\nleave; (4) His or her right to respond, orally or in writing, or both, to the notice;\n\nand (5) His or her right to be represented by an attorney or other representative.”\n\nD.C. Code § 1-616.54 (d). Prior to the suspension, MPD must initially place the\n\nemployee “on administrative leave for a period of 5 work days, followed by\n\nenforced annual leave or, if no annual leave is available, leave without pay.” D.C.\n\nCode § 1-616.54 (b). MPD is authorized to continue the employee‟s suspension\n\nuntil “action . . . [is] taken as a result of the event that caused this administrative\n\n[suspension] . . . or a determination is made that no such action . . . will be taken.\n\nD.C. Code § 1-616.54 (b).\n\n\n\n Appellant served appellee with written notice of the proposed interim\n\nsuspension without pay, “pending resolution of the [ ] administrative action against\n\n[him].” The notice states that the serving officer left the notice at appellee‟s door\n\f 8\n\non August 17, 2004. The record is unclear whether the notice was posted to the\n\ndoor, or left with someone of suitable age. In any case, it is clear that appellee\n\nreceived the notice because he made a timely appeal of the proposed suspension on\n\nAugust 26, 2004.\n\n\n\n\n The notice explained that suspension was being proposed for “conduct\n\nunbecoming an officer,” because “on Wednesday, July 21, 2004, in Fairfax\n\nCounty, VA, Sergeant James O‟Boyle was convicted of driving while\n\nintoxicated[,] . . . was sentenced to 180 days in jail with 170 days suspended[,] . . .\n\nwas fined $500.00 and has a 12-month suspended license.” The notice also stated\n\nthat the suspension would not become effective until fifteen days after receipt of\n\nthe notice, and that appellee had a right to respond to the proposed action and have\n\na representative of his choosing. Appellee‟s suspension then went into effect on\n\nSeptember 14, 2004.\n\n\n\n\n When appellee was served with the suspension notice, he was already on\n\nvoluntary leave without pay, which he had taken so that he could be available for\n\nhis DWI trial, to be incarcerated for the DWI conviction, and undergo two alcohol\n\ntreatment programs. On appeal, appellant stated that it first placed appellee on\n\f 9\n\nleave without pay because presumably he had already exhausted his administrative\n\nleave with pay and his annual leave.2\n\n\n (B)\n\n\n The D.C. Code, DCMR, and MPD‟s General Order No. 1202.1 authorize\n\nMPD to impose interim administrative suspension without pay until the agency\n\ncompletes its own investigation and determines whether discipline should be\n\nimposed. See D.C. Code §§ 1-616.54 (a)(3), (b), (c); 6B DCMR §§ 1620.1(c),\n\n1620.4, 1620.12(a)-(c), 1620.14, 1620.15; MPD General Order No. 1202.1\n\n(D)2(b)(1). It is expressly provided that such interim suspension “is not a\n\ncorrective or adverse action,” 6B DCMR § 1620.2, and is “distinguished from\n\ndisciplinary suspension imposed as punishment following a final determination of\n\nmisconduct.” MPD General Order No. 1202.1 (D)2(b)(1). This statement of\n\nlegislative (and rule-making) administrative procedure, reiterated three times, is an\n\nindication that a thoughtful and comprehensive process is envisioned with regard\n\nto an officer‟s suspension or termination. At bottom, appellee, in viewing the\n\nundisputed evolving events in this case, urges that appellant‟s failure to expressly\n\ncite the pertinent statutory authority pertaining to suspensions from duty\n\n\n 2\n Appellee has not presented any evidence in the record demonstrating that\nhe had any accrued and unused administrative paid-leave or annual leave available.\n\f 10\n\nnecessarily causes the suspension to be an adverse action. It is not surprising that\n\nthere is no precedent or other authority offered to support this contention as there is\n\nno such requirement. Nonetheless we observe it is good practice, in an effort to\n\navoid litigation, as here, for appellant to state the authority upon which it relies in\n\nmatters of this kind. Indeed we also observe that appellee did not pursue some of\n\nthe administrative remedies which were available to him.\n\n\n\n Applying our standard of review to the findings of fact and evidence of\n\nrecord determined by the OEA on remand, we conclude that there was not\n\nsubstantial evidence to support the findings. See Dupree, 36 A.3d at 830. Thus we\n\nconclude that the OEA erred in vacating the order terminating appellee‟s\n\nappointment as an officer of the District of Columbia Police Department.\n\nAppellee‟s unpaid suspension was an authorized interim administrative\n\nsuspension—rather than final adverse action—authorized pursuant to the District\n\nof Columbia Comprehensive Merit Personnel Act (“CMPA”), D.C. Code § 1-\n\n616.54 (2006 Repl.), and therefore appellee‟s subsequent termination does not\n\nconstitute “double punishment.”\n\f 11\n\n IV.\n\n Appellant also asserts that the OEA abused its discretion when it found that\n\nthere was disparate treatment of appellee because appellant had not legitimately\n\ndistinguished appellee from other MPD members arrested and convicted of DWI or\n\ndriving under the influence of alcohol (DUI) who had not been terminated. To\n\njustify appellee‟s punishment, appellant was required to prove that it had a\n\nlegitimate basis for distinguishing appellee from other MPD members convicted of\n\nDUI or DWI who were not terminated. See Stokes v. District of Columbia, 502\n\nA.2d 1006, 1009-11 (D.C. 1985). When reviewing the penalty imposed by an\n\nagency, the OEA is guided by the principles established in Douglas v. Veterans\n\nAdmin., 5 M.S.P.R. 280 (M.S.P.B. 1981). The twelve Douglas factors are:\n\n\n\n (1) The nature and seriousness of the offense, and its\n relation to the employee‟s duties, position and\n responsibilities, including whether the offense was\n intentional or technical or inadvertent, or was committed\n maliciously or for gain, or was frequently repeated;\n\n (2) the employee‟s job level and type of employment,\n including supervisory or fiduciary role, contacts with the\n public, and prominence of the position;\n\n (3) the employee‟s past disciplinary record;\n\n (4) the employee‟s past work record, including length of\n service, performance on the job, ability to get along with\n fellow workers, and dependability;\n\f 12\n\n (5) the effect of the offense upon the employee‟s ability\n to perform at a satisfactory level and its effect upon\n supervisors‟ confidence in the employee‟s ability to\n perform his assigned duties;\n\n (6) consistency of the penalty with those imposed upon\n other employees for the same or similar offenses;\n\n (7) consistency of the penalty with any applicable agency\n table of penalties;\n\n (8) the notoriety of the offense and its impact upon the\n reputation of the agency;\n\n (9) the clarity with which the employee was on notice of\n any rules that were violated in committing the offense, or\n had been warned about the conduct in question;\n\n (10) the potential for employee rehabilitation;\n\n (11) mitigating circumstances surrounding the offense\n such as unusual job tensions, personality problems,\n mental impairment, harassment, or bad faith, malice or\n provocation on the part of others involved in the matter;\n and\n\n (12) the adequacy and effectiveness of alternative\n sanctions to deter such conduct in the future by the\n employee or others.\n\nBrown v. Watts, 993 A.2d 529, 532, n.3 (D.C. 2010) (quoting Douglas, 5 MSPB\n313, 5 M.S.P.R. at 305-06).\n\f 13\n\n On remand, the OEA could overturn appellant‟s decision only if it found that\n\nappellant “failed to weigh the relevant factors, or that the agency‟s judgment\n\nclearly exceeded the limits of reasonableness.” Stokes v. District of Columbia, 502\n\nA.2d 1006, 1011 (D.C. 1985). Without assessing appellant‟s Douglas analysis, or\n\nconsidering any of the Douglas factors, the OEA concluded that appellee had not\n\nreceived the same treatment as similarly situated employees and overturned\n\nappellee‟s termination. Appellant had submitted an affidavit from its Director of\n\nHuman Resources attesting that the agency had used the Douglas factors and\n\ndetermined that termination was the appropriate penalty for appellee.\n\n\n\n\n Appellant had addressed several Douglas factors in its rationale for\n\nterminating appellee when it issued its final notice of adverse action. It addressed\n\nthe first Douglas factor, finding that appellee‟s misconduct was “of an egregious\n\nnature,” and noting that he had been arrested with a blood-alcohol content “over\n\nthree times the legal limit” in Virginia, “served ten (10) days” in jail, and had his\n\n“driver‟s license . . . suspended for 12 months.” Other similarly situated officers\n\nhad served no such jail time for their offenses. Appellant also assessed the eighth\n\nDouglas factor, finding that appellee‟s offense “tended to erode public confidence\n\nand respect of [MPD].” Finally, appellant addressed the second and eleventh\n\nDouglas factors, as appellee held a supervisory rank, had “failed to offer any\n\f 14\n\nevidence to mitigate, exonerate, or controvert” his action, had “shown [his]\n\ndisregard for the responsibilities and standards of conduct [he] accepted as a law\n\nenforcement officer,” and his behavior was “unacceptable and contrary to the\n\nexpectations of the community.” We conclude that the OEA erred by overturning\n\nappellee‟s termination, which was consistent with the range of penalties permitted\n\nfor such conduct, without assessing appellant‟s Douglas analysis or considering\n\nany of the Douglas factors.3\n\n\n V.\n\n\n The final issue we address on appeal is whether appellee should be\n\ncompensated for lost wages. On remand, OEA ordered that appellant‟s action\n\nsuspending appellee from August 30, 2004, until January 8, 2005, would be\n\nmodified and reduced to a thirty-day suspension, with ten days held in abeyance,\n\nand that appellant reinstate appellee and reimburse him all pay and benefits lost as\n\na result of the “removal and excessive suspension.” The only relevant provision on\n\n\n 3\n We also reject appellee‟s argument that appellant forfeited its right to\ndistinguish him from other MPD members because it did not articulate its Douglas\nanalysis before he was terminated. There is no requirement that an agency\narticulate its Douglas analysis before terminating an employee. See Boucher v.\nUSPS, 118 M.S.P.R. 640, 649 (M.S.P.B. 2012) (In fact, “the agency‟s burden\n[under Douglas] . . . is triggered by the appellant‟s initial showing that . . . the\nagency treated similarly-situated employees differently.”).\n\f 15\n\nthe record before this court pertaining to the issue of retroactively restoring pay\n\nstates, “[i]f the basis for placing an employee on enforced leave pursuant to this\n\nsection does not result in the taking of a disciplinary action . . . any annual leave or\n\npay lost as a result of this administrative action shall be restored retroactively.”\n\nD.C. Code § 1-616.54 (g) (emphasis added).\n\n\n\n\n Given our reversal of OEA‟s order, and our decision to uphold appellant‟s\n\ninterim suspension and termination decisions, there is no justification for\n\nreimbursement of lost wages associated with appellee‟s termination or suspension.\n\nAppellee asserts that during his interim suspension, appellant should have first\n\nplaced him on paid administrative leave for a period of five work days, and then\n\nallowed him to use annual leave or compensatory time. Appellee, however, was\n\nalready on voluntary leave without pay when he was served with the suspension\n\nnotice—so that he could undergo two alcohol treatment programs and serve jail-\n\ntime for the DWI offense—suggesting that he did not have any available paid\n\nadministrative leave, annual leave or compensatory time. Appellee did not present\n\nany evidence or make any argument on the record that he had available paid\n\nadministrative leave, annual leave or compensatory time; rather he merely asserts\n\nthat appellant did not consider his leave status when it suspended him. We\n\nconclude, therefore, that the OEA erred when it ordered appellant to reimburse\n\f 16\n\nappellee for all pay and benefits lost as a result of the “removal and excessive\n\nsuspension.” Appellee is not entitled to pay lost as a result of this administrative\n\naction.\n\n\n\n Accordingly, the order of the Superior Court is hereby\n\n\n\n Reversed.\n\f",
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"opinion_id": 2675363
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] |
District of Columbia Court of Appeals
|
District of Columbia Court of Appeals
|
S
|
District of Columbia, DC
|
546,584 | null | 1990-07-20 | false |
united-states-v-scott-lewis-rendelman
| null |
United States v. Scott Lewis Rendelman
| null | null | null | null | null | null | null | null | null | null | null | null | 0 |
Unpublished
| null | null |
[
"911 F.2d 725"
] |
[
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": "http://bulk.resource.org/courts.gov/c/F2/911/911.F2d.725.90-6782.html",
"author_id": null,
"opinion_text": "911 F.2d 725Unpublished Disposition\n NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Scott Lewis RENDELMAN, Defendant-Appellant.\n No. 90-6782.\n United States Court of Appeals, Fourth Circuit.\n Submitted July 9, 1990.Decided July 20, 1990.\n \n Appeal from the United States District Court for the District of Maryland, at Baltimore. Herbert F. Murray, Senior District Judge. (CR No. 88-3-HM)\n Scott Lewis Rendelman, appellant pro se.\n Peter M. Semel, Assistant United States Attorney, Jamie M. Bennett, Assistant United States Attorney, Baltimore, Md., for appellee.\n D.Md.\n AFFIRMED.\n Before SPROUSE and WILKINS, Circuit Judges, and BUTZNER, Senior Circuit Judge.\n PER CURIAM:\n \n \n 1\n Scott Lewis Rendelman appeals from the district court's order denying his Fed.R.Crim.P. 35 motion.* Our review of the record and the district court's opinion discloses that this appeal is without merit. Accordingly, we affirm on the reasoning of the district court. United States v. Rendelman, CR No. 88-3-HM (D.Md. Jan. 25, 1990). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.\n \n \n 2\n AFFIRMED.\n \n \n \n *\n We consider Rendelman's notice of appeal to be timely filed and have reviewed the merits of his appeal\n \n \n ",
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"opinion_id": 546584
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] |
Fourth Circuit
|
Court of Appeals for the Fourth Circuit
|
F
|
USA, Federal
|
2,579,177 |
Anthony W. Ishii
| 2009-10-15 | false |
stankewitz-v-wong
|
Stankewitz
|
Stankewitz v. Wong
|
Douglas Ray STANKEWITZ, Petitioner, v. Robert WONG, Acting Warden of San Quentin State Prison, Respondent
|
Joseph Schlesinger, Harry Willard Simon, Federal Public Defender’s Office, Sacramento, CA, Katherine Louise Hart, Law Offices of Katherine Hart, Patience Milrod, Law Office of Patience Milrod, Fresno, CA, Nicholas C. Arguimbau, Law Offices of Nicholas C. Arguimbau, Warwick, MA, Robert Bryan, San Francisco, CA, for Petitioner.
| null | null | null | null | null | null | null |
Order Granting Stay Pending Resolution of Motion for Reconsideration Oct. 15, 2009.
| null | null | 0 |
Published
| null |
<parties id="b1143-4">
Douglas Ray STANKEWITZ, Petitioner, v. Robert WONG, Acting Warden of San Quentin State Prison, Respondent.
</parties><br><docketnumber id="b1143-7">
Case No. 1:91-cv-616-AWI.
</docketnumber><br><court id="b1143-8">
United States District Court, E.D. California.
</court><br><decisiondate id="b1143-10">
Sept. 22, 2009.
</decisiondate><br><otherdate id="b1143-11">
Order Granting Stay Pending Resolution of Motion for Reconsideration Oct. 15, 2009.
</otherdate><br><attorneys id="b1143-20">
Joseph Schlesinger, Harry Willard Simon, Federal Public Defender’s Office, Sacramento, CA, Katherine Louise Hart, Law Offices of Katherine Hart, Patience Milrod, Law Office of Patience Milrod, Fresno, CA, Nicholas C. Arguimbau, Law Offices of Nicholas C. Arguimbau, Warwick, MA, Robert Bryan, San Francisco, CA, for Petitioner.
</attorneys>
|
[
"659 F. Supp. 2d 1103"
] |
[
{
"author_str": "Ishii",
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": null,
"author_id": 1599,
"opinion_text": "\n659 F. Supp. 2d 1103 (2009)\nDouglas Ray STANKEWITZ, Petitioner,\nv.\nRobert WONG, Acting Warden of San Quentin State Prison, Respondent.\nCase No. 1:91-cv-616-AWI.\nUnited States District Court, E.D. California.\nSeptember 22, 2009.\nOrder Granting Stay Pending Resolution of Motion for Reconsideration October 15, 2009.\nJoseph Schlesinger, Harry Willard Simon, Federal Public Defender's Office, Sacramento, CA, Katherine Louise Hart, Law Offices of Katherine Hart, Patience Milrod, Law Office of Patience Milrod, Fresno, CA, Nicholas C. Arguimbau, Law Offices of Nicholas C. Arguimbau, Warwick, MA, Robert Bryan, San Francisco, CA, for Petitioner.\n\nDEATH PENALTY CASE\nANTHONY W. ISHII, Chief Judge.\nPetitioner Douglas Ray Stankewitz (\"Stankewitz\") appears before this Court pursuant to a partial remand of his petition for a writ of habeas corpus by the Ninth Circuit. See Stankewitz v. Woodford, 365 F.3d 706 (9th Cir.2004). Stankewitz's initial federal petition was denied on the merits as to all claims December 22, 2000. Doc. 448.\nIn 2000, as the parties prepared for expert depositions in contemplation of a federal evidentiary hearing, Stankewitz for the first time produced a voluminous set of documents he represented were relied on by his experts in preparing their opinions. See Doc. 443, Notice of Filing, (hereafter \"Jointly Filed Documents\"). At the same time, the grant of an evidentiary hearing was vacated, and Stankewitz's federal petition was subsequently denied. In denying *1104 the present claim, this Court found that Stankewitz had not established prejudice. Doc. 448, at 83. Specifically, this Court concluded that: (1) Stankewitz was aware that evidence of his background could be presented, but he had objected to any such testimony; (2) Stankewitz objected at both trials to the presentation of expert testimony; (3) despite Stankewitz's continued opposition to a mental defense, Goodwin had introduced evidence of his background and upbringing through the testimony of Joe Walden, the former director of juvenile probation for Fresno County; and (4) Goodwin's use of Walden may have been a tactical choice (one which this Court noted was also used by counsel at the first trial), \"since as a probation officer Mr. Walden could have been seen as having a higher level of credibility than would Stankewitz's family, the majority of whom had either criminal records, histories of drug abuse or both.\" Doc. 448, at 83-84.\nWhile disagreeing with the Warden's contention that the aggravating evidence was so overwhelming additional mitigating evidence could not have made a difference, this Court nonetheless concluded that \"Mr. Goodwin made an impassioned plea for mercy and did present mitigating evidence to the jury through Mr. Walden's testimony,\" that \"the mitigating evidence Mr. Goodwin failed to present is neither compelling nor exculpatory,\" and that much of it was cumulative of the evidence presented at trial. Id., at 84. Focusing on Stankewitz's mental health claims, and referencing numerous documents from the Jointly Filed Documents, this Court rejected the opinions of experts hired by Stankewitz during the federal post-conviction proceedings and concluded that substantial evidence at the time of the second trial supported the diagnosis of antisocial or sociopathic personality disorder made by the experts from the first trial. Id., at 16-18, 85. This Court further concluded the record supported Goodwin's assertion that Stankewitz would not consent to the presentation of mitigating evidence from family members, as no family members had testified at the first trial. Id., at 85. Finally, this Court concluded that Stankewitz could not establish prejudice as it was not reasonably probable that additional mitigating evidence would have resulted in a life sentence given the circumstances of the crime, Stankewitz's extensive violent criminal history, and his continuation of violent behavior while in prison. Doc. 448, at 85.\nThe Ninth Circuit, after affirming this Court's denial of the petition in all other respects, remanded for an evidentiary hearing on the sole claim of ineffective assistance of counsel during the penalty phase of trial, holding that Stankewitz raised a colorable claim Hugh Goodwin, his attorney at his second trial, rendered ineffective assistance by failing to give the jury mitigating information \"that might have humanized Stankewitz,\" and that as a result Goodwin's performance fell below constitutionally acceptable professional standards. Stankewitz v. Woodford, 365 F.3d at 708, 720-22, 724. In determining whether Stankewitz had raised a colorable claim, the Circuit was compelled to view as true all of Stankewitz's factual allegations, included the long-disputed assertion that Goodwin had not obtained or reviewed any of counsel's records from the first trial.\nNew counsel was appointed to represent Stankewitz in his federal habeas proceeding December 18, 2007, and the parties subsequently agreed to brief the merits of the remanded claim based on the evidence currently in the record, with the provision that the briefing be without prejudice to a future request for an evidentiary hearing. Stankewitz filed his brief in support of the remanded claim November 19, 2008. Doc. 587. Respondent Robert Wong (\"the Warden\") filed his opposing brief February 18, *1105 2009. Doc. 589. Stankewitz filed his reply brief May 29, 2009. Doc. 597.\n\nStandard of Review\nThe standard for ineffective assistance of counsel claims is set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Stankewitz must establish that his counsel's performance was deficient and that the deficiency prejudiced the outcome of his trial. Id. at 689, 694, 104 S. Ct. 2052. Counsel's failure to investigate and present mitigating evidence presents serious constitutional concerns. Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003); Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000). Both cases emphasize counsel's duty to conduct a thorough investigation, and Williams states that merely presenting some evidence does not discharge counsel's duty. Rather, a penalty phase ineffective assistance claim depends on the magnitude of the discrepancy between what counsel did investigate and present and what counsel could have investigated and presented. Stankewitz v. Woodford, 365 F.3d 706, 715-716 (9th Cir.2004) (citing Wiggins and Williams).\n\nSummary of the Parties' Respective Arguments\nStankewitz argues he has presented sufficient evidence, which is largely uncontested, which supports the finding that Goodwin's performance at the penalty phase was deficient under the established principles governing counsel in capital cases, and that Stankewitz was prejudiced by Goodwin's failure to investigate and present any more than minimal mitigation at penalty, as well as present available evidence undermining aggravation.\nThe Warden argues in opposition that the established facts of this case have changed dramatically since the remand by the Ninth Circuit, especially the revelation of the fact that Goodwin did obtain and review the trial counsel's files from Stankewitz's first trial, and that those changes undermine the remanded claim and conversely support this Court's earlier rejection of the claim.\nStankewitz replies that despite the Warden's assertions, the great bulk of facts in the record are uncontested and are more than sufficient to justify penalty phase, relief. The Warden's arguments do not change the fact that (1) Goodwin rendered deficient performance by not conducting an independent investigation, not hiring investigators or experts, and presenting a minimal, cursory and unpersuasive mitigation case, (2) Stankewitz was prejudiced by the jury's lack of knowledge about his toxic upbringing; and (3) Stankewitz was further prejudiced by Goodwin's failure to present available evidence that Stankewitz may not have fired the shots that struck a police officer (aggravating evidence which was presented by the prosecutor to show prior acts of criminal conduct).\n\nThe Warden's argument\nSpecifically, the Warden contends that Stankewitz's remanded claim alleged Goodwin failed to adequately investigate and present available mitigating evidence about his character and background. In support of this claim, Stankewitz submitted a lengthy description of Stankewitz's background and upbringing, supported primarily by declarations prepared on his behalf and in a few instances by references to official records (which were not filed), and by a 1995 declaration from Goodwin stating he had not obtained or reviewed the files of trial or appellate counsel from the first trial. Stankewitz asserted that with just the effort required to read the transcript from his first trial, Goodwin could have presented some of Stankewitz's relevant background and history.\n*1106 The Warden observes that some of the factual representations relied on by the Ninth Circuit are untrue, and that Stankewitz now concedes Goodwin obtained the files of counsel from his first trial, and reviewed them and the transcripts. This concession means the contrary statement in Goodwin's 1995 declaration was false, and that Goodwin was aware of virtually all of the facts of significance to Stankewitz's current claim.\nThe Warden objects to Stankewitz's criticism of Goodwin for failing to present evidence of the violence, neglect, substance abuse and criminality within his family, asserting Stankewitz fails to adequately account for timelines which establish he had little exposure to these family members after age six. The records suggest that from the time he was removed from his family at age six, until he murdered Theresa Greybeal in February 1978, at age 19, Stankewitz was with his mother for a total of no more than seven months, with his father for less than three weeks, and with his aunt Maggie Marquez for a total of no more than nine months. While the record leaves little room for doubt about the failings of Stankewitz's parents, siblings and other family members, the Warden argues few specifics are provided about the first six years of his life, and Stankewitz does not attempt to correlate his accusations of family dysfunction to the relatively narrow periods of time he spent with his family. The Warden contends that, while is it undisputed Stankewitz was taken from his home at age six after his mother beat him on two occasions, the record does not include suggestions of ongoing physical abuse, pointing to statements by his mother that their father \"never hit the children\" and only spanked his sister once, that she \"never really spanked any of the children,\" and that the beatings of Stankewitz were isolated and out of the ordinary. See Petitioner's Supplement to Joint Submission (\"SJS\"), filed April 23, 2008, Doc. 556, Vol. 3, page 269, and Doc. 558, Vol. 9, page 1044.\nThe Warden objects to Stankewitz's criticism of Goodwin for failing to present mitigation from the time Stankewitz spent at Napa State Hospital (\"NSH\") and in the foster home of Ms. Bollmeyer, arguing the allegations of sexual abuse and inappropriate medication and placement at NSH, as well as out-of-control and disturbed behavior, requirement of heavy medication, and lack of basic life skills while in foster care, are based on the thinnest of evidence, almost entirely drawn from a highly questionable source, Ms. Bollmeyer's daughter Rosetta.\nThe Warden disputes Stankewitz's allegation that Goodwin should have further investigated and presented evidence of impaired intellectual functioning and brain damage, and contends the expanded record now before the Court supports the prior finding that Stankewitz was not incompetent or suffering from a mental disease or disorder. The Warden also disputes the allegation that Goodwin failed to present evidence of Stankewitz's drug use at the time of the crime, asserting that evidence was presented of his drug use before the murder and that the new evidence alleging Stankewitz used marijuana, heroin and alcohol with his brother Willie in the days before the crime is not reliable and is inconsistent with other evidence.\nThe Warden disputes Stankewitz's allegation that Goodwin should have further investigated and presented evidence that Stankewitz's brother Johnny was in the car during the 1973 CHP shootout, and that there was a strong possibility Johnny, and not Stankewitz, was the shooter. The Warden asserts Johnny's statement does not provide evidence he was the shooter, but incredibly attempts to lay blame for *1107 the shooting on his deceased friend Eddie Davis, contending that Eddie fired the shotgun out the passenger window or out the back window through the small crack under the open trunk while keeping his foot on the accelerator and having Stankewitz steer the car. Even if this evidence is viewed as raising a doubt that Stankewitz was the shooter, the Warden contends that at a minimum Stankewitz aided and abetted the shooting, so a tactical choice not to present such evidence was reasonable and understandable.\n\nStankewitz's Allegations of Non-Presented Mitigation\nStankewitz's factual allegations of potential mitigation fall into three categories: (1) childhood of abuse/neglect; (2) history of mental illness; and (3) substance abuse/lack of sleep prior to the murder. In the first category, Stankewitz submitted agency documents detailing the abuse and neglect which resulted in his removal from home at a young age, numerous declarations from family and friends relating the poverty and abuse (both physical and mental) suffered by Stankewitz in his home, and medical records and declarations indicating the difficulties Stankewitz experienced in subsequent state institutions and foster homes. Of the 16 allegations in the first category, most are shown by government or medical records, although some have questionable support.\n1-A. Stankewitz's difficult and traumatic youth, up to age six, included:\na. a psychiatrist's description of his home as \"totally lacking in love, warmth and affection and frequently filled with deprivation, rejection and punishment;\"\nb. a poverty-stricken household where there was often not enough food for the children;[1]\nc. a house that was dirty, filled with vermin and without running water or electricity;[2]\nd. starting to sniff paint by age five, and soon expanding into the use of alcohol and harder drugs[3];\ne. physical and mental abuse by both parents-being taken to the emergency room three times before his first birthday[4];\n\n*1108 f. a mother who drank excessively while pregnant with him, was also physically abused by his father, who struck her repeatedly in the abdomen;\ng. a violent father of Native American descent who ridiculed him for being light-skinned and told him not to take medication prescribed to control his behavior;\nh. a mother who beat him so badly with an electrical cord at age six that she was jailed and he was placed into state care[5];\ni. older siblings who also abused the younger ones, especially him[6];\nj. at least one scar, \"a substantial indentation on his cranium,\" which remains as a reminder of the physical abuse.\n1-B. Stankewitz's difficult and traumatic youth, after removal from his home, included:\nk. being shuffled from one state institution to another after removal from home;\nl. \"care\" at NSH that was indicative of the balance of his time as a ward of the state: he was sexually abused by hospital staff[7], heavily medicated and placed among psychotic and autistic children even though he was not similarly diagnosed;\nm. upon transfer to the Bollmeyer foster home from NSH, he tore apart the back seat of the car, was \"like a wild animal\" and had to be held down by three teenage boys, was prescribed extremely high doses of medication, would often wet and defecate in bed, smeared feces on the wall, continued wetting the bed until at least age 12;[8]\nn. Ms. Bollmeyer had to teach him to talk instead of grunt, use the toilet, dress himself, use silverware and ask instead of grab;\n\n*1109 o. he was removed from the Bollmeyer home and spiraled through 22 subsequent placements in eight years;\np. from his placement at NSH until his arrest for the murder, a total of nearly 13 years, he spent all but 16 months in some form of government care, during which he was massively and unnecessarily drugged, tied to beds, beaten, sexually molested, neglected, deliberately tortured, and otherwise abused by staff.\nIn the second category, Stankewitz submitted opinions of three experts who agree he is brain-damaged, as well as expert testimony from the first trial that he appeared \"not to fully appreciate the flow of events or the full implications of his actions,\" and medical reports indicating mental or emotional problems when he was a child. Although the Ninth Circuit observed that some of the habeas experts' conclusions were rejected in denying Stankewitz's guilt phase claims of diminished capacity and insanity, they stated the remaining conclusions \"could have invoked sympathy from at least one juror,\" especially when considered in conjunction with other mitigation. Stankewitz v. Woodford, 365 F.3d at 718 n. 6.\n2. Stankewitz's history of mental illness:\na. an expert at the first trial testified he appeared \"not to be fully able to appreciate the flow of events or full implications of his actions;\"\nb. all three habeas experts agreed he is brain-damaged;\nc. Dr. Riley opined he is borderline mentally retarded, with an IQ of 79, and suffers from significant brain dysfunction, perhaps attributable to Fetal Alcohol Syndrome and childhood abuse;\nd. Dr. Rosenthal said his brain damage \"would produce problems with emotional control, tendencies to be impulsive and unpredictable, and to be unable to exercise adequate judgment or to understand the consequences of his behavior. Furthermore, from early childhood Mr. Stankewitz had intense mood shifts, profound depressions with suicidal tendencies, psychotic thinking, an inability to relate to reality in a rational manner, and paranoid delusional thinking;\"\ne. a report at age 12 reveals he suffered from problems with a \"sudden loss of control, during which he becomes abusive, uses vile language, and actually becomes combative.\" During one of these fits, he was placed in a padded room at Juvenile Hall and was observed \"actually biting the walls.\"\nIn the third category, Stankewitz submitted numerous declarations detailing his severe substance abuse starting at age 10, and a co-defendant's declaration that Stankewitz injected heroin just prior to the murder. Only the allegations that Stankewitz was sleep-deprived at the time of the murder and that the heroin dose was the \"largest he'd ever had\" have questionable support.\n3. Stankewitz's substance abuse and lack of sleep prior to the murder:\na. he claims that, for at least the 48 hours before the murder, he had binged on substantial quantities of alcohol, heroin and methamphetamine, and had not slept;\nb. he also claims to have injected the largest dose of heroin he had ever taken shortly before the murder, which he claims lessened his already diminished ability to control his behavior;\n\n*1110 c. he had a \"very severe\" substance abuse problem dating back from as early as age 10 or younger which likely aggravated his unstable emotional state and limited mental capacity.\n\nAnalysis\nEven accepting the Warden's objections to some of Stankewitz's allegations, the evidence shows Stankewitz was already severely emotionally damaged by the time he was removed from his home at age six. He was out of control and exhibited acting out behavior, had frequent temper tantrums, including hitting, kicking and biting, and was often only controlled with extreme measures (restraints or drugs). SJS 056-057, Doc. 556, Vol. 1 (March 1965 letter from Probation Officer Joe Walden). \"While in the County Hospital, the minor presented almost uncontrollable behavior problems and the hospital staff had to use physical restraints to keep Douglas under control. . . . He was transferred to [a] foster home by a social worker and while in route, he ran away from her and when she caught him, he kicked and hit her before she was able to subdue him. His placement in this foster home lasted for only 24 hours due to the fact that the foster parents were not able to control Douglas. While in the first foster home, Douglas threw chairs and threatened to run away and kept the foster parents awake all night long. The following day, this officer and a social worker transported Douglas to a second foster home. Upon arrival there, Douglas attempted to run away and kicked and hit this officer, as well as attempting to bite him. The foster parents were unable to control Douglas and he was removed from this foster home eight hours later and placed in Juvenile Hall. . . .\" SJS 87-88, Doc. 556, Vol. 1 (Dec. 8, 1965 probation report by Joe Walden).\nStankewitz was somewhat stable for the four years he spent in Ms. Bollmeyer's foster home in Sebastopol, although he was eventually returned to Fresno in 1970 at Ms. Bollmeyer's request because he was uncontrollable. By then, at age 12, Stankewitz had \"many emotional problems . . . and at many times, [wa]s hostile and require[d] physical restraint to be used in order to control him . . . . when he [wa]s pressed or put in a frustrating situation, he often react[ed] by becoming violent.\" Despite these problems, the evaluation of Stankewitz's prognosis was good, and it was believed that with the planned involvement in his case, he would come around and learn to control his emotional outbursts. SJS 105-106, Doc. 556, Vol. 1 (May 1970 report by Probation Officer Roger Nelson).\nHowever, in 1971 the assaults on others began: August 9he was with three adults during an assault and robbery of an older man; August 19he hit and injured a smaller boy at Juvenile Hall. In 1972, he was sent to CYA, mainly for being out of control. At this point, Stankewitz had been through at least 14 placement changes in the 25 months since his removal from the Bollmeyer foster home. After nine months in CYA, he was paroled to his aunt Maggie Marquez, and then went to live with his mother when she was paroled to Fresno.\nOn April 24, 1973, just three and a half months after his release from CYA, Stankewitz was involved in the assault of George Key and robbery of his car, and a subsequent CHP chase and shooting, which ended with the killing of co-participant Eddie Davis. Stankewitz was returned to CYA, where he exhibited \"no remorse for what had happened-except that he had been caught, no assurance that parallel occurrences would not happen *1111 when again on the streets. . . . Doug feels no responsibility for depriving anyone of property, health or even life, enjoying the excitement of the chase. Although ingratiating and pleasant, I have come to believe this to be surface stuff only. I look upon this youth as dangerous.\" SJS 164, Doc. 556, Vol. 2 (June 1973 Youth Authority report by Edward Mueller).\nThe reports from this period also indicate (1) Stankewitz was extremely violence prone, and diagnosed with an antisocial personality; (2) there were numerous incidents at CYA during which Stankewitz relied on prison-type intimidation and pressure in his interaction with other wards, and was not amenable to influence or external controls by the authorities; and (3) Stankewitz saw aggressive behavior, even hurting or killing others, as the solution to his frustrations.\nHe was furloughed to his aunt Maggie Marquez after two and a half years in CYA, but arrested on battery charges six days later. He was returned to CYA, and paroled after three and a half months. By this time, at age 18, he was hardened by the years of criminal associations and surroundings. Stankewitz had a \"deprived background, being institutionalized early in his life and essentially raised in institutions. He has a history of assaultive behavior, both in the community and in Youth Authority institutions.\" SJS 007, Doc. 556, Vol. 1 (May 1977 Probation Report by Dean Thompson). \"From an early life developmental standpoint, [Stankewitz] has suffered from early childhood losses, prolonged separation from parents, poor institutional surrogate care. This has resulted in poor social adjustment as manifested by frequent runaways, behavior problems, scholastic under-achievement and finally culminating in antisocial behavior which has occurred both in and out of institutional placements.\" SJS 228, Doc. 556, Vol. 2 (May 1978 Social Evaluation by Ross Becker).\nStankewitz was arrested two and a half months later and although the initial charges were dropped, he was charged with assault on a booking officer and sentenced to county jail. He was released after nine months on January 14, 1978. He and an accomplice (who had a gun) robbed a gas station on January 20, and later the same night he robbed two massage parlor customers. On January 25, he assaulted customers of a Sacramento card room and attempted to commit robbery. On February 8, 1978, he and his accomplices kidnapped, car jacked, and ultimately murdered Theresa Graybeal, then later the same evening attempted to rob Jesus Meraz, a.k.a. Valenti Cordero.\nAlthough some of the mitigation allegations in the first category (listed on pages 8-11 above) have limited support or are undermined by other documents, the record as a whole shows Stankewitz was psychologically and emotionally damaged by his upbringing. See Summary Chronology of Stankewitz's Childhood, Appendix A. Dr. James Missett testified at the first trial Stankewitz's upbringing included the criteria for developing an anti-social personality.\n[T]he criteria we look for [in the development of an antisocial personality] are perhaps 20 in number, most of which Mr. Stankewitz has shown at one time or others [sic]. . . . There is a history of sociopathic or violent behavior in the home. There's very often a history of the individual being abused, especially physically, but not necessarily just physically. If there is [sic] a lot of putdowns in the home, that, also, can contribute to it.\nThere is, in the individual's family, usually, histories of alcoholism, sometimes, but again not always, criminal *1112 behavior, difficulty with work, difficulty in marital relationships, a history of disregard for societal institutions sofar as the importance of school in one's life, the importance of work, the importance of obeying laws, or in any way responding to what the dictates are of society. There'sin the individual, himselfand this was evident, also, in Mr. Stankewitz, a history of bed wetting that goes beyond the usual accepted time of it stopping. The usual accepted time of it stopping is sometime between age three and four. Mr. Stankewitz wenthad episodes of bed wetting up through ages 10 and 11. There are also episodes of fire setting, and I don't remember if he had episodes of fire setting or not, of truancy, difficulty with all types of authorities, outside the home, of poor work habits. As far as I know he has none. I'm not aware of his having been exposed to that situation at all, a tremendous amount of difficulty with peers, with anybody in relationship of authority.\n1978 trial RT, Vol. 22, pages 4697-98, testimony of Dr. James Missett; SJS 661, Doc. 557, Vol. 6 (Summary of mental health expert testimony by Quinn Denvir).\nThe Ninth Circuit made the following findings on remand: (1) \"Stankewitz has alleged facts that, if true, would establish that Goodwin was ineffective for failing to investigate and uncover the important mitigating evidence outlined above,\" Stankewitz v. Woodford, 365 F.3d at 722; (2) \"[a] more complete presentation, including even a fraction of the details Stankewitz now alleges,\" could have made a difference in Stankewitz's sentence, id., at 724; and (3) \"there was a reasonable probability that the jury would not have sentenced Stankewitz to death had it been presented with the evidence of the numerous deprivations and abuses Stankewitz alleges that he suffered.\" Id., at 725. Since many of Stankewitz's allegations are proved by official documents in the record, the requirements for his ineffective assistance of counsel claim as set forth in the remand opinion are satisfied. Even assuming that Goodwin's decision not to present the entirety of the available mitigating evidence was a tactical choice, the Ninth Circuit found such a choice unreasonable, and the result prejudicial. Id.\n\nOrder\nHaving considered all the pleadings, lodged and expanded records, submitted evidence, and arguments of the parties, the Court determines, as detailed above, that many of Stankewitz's allegations of mitigation evidence are true. Stankewitz's petition for a writ of habeas corpus is granted as to the remanded claim alleging ineffective assistance of counsel at the penalty phase of his second trial. A writ of habeas corpus shall issue directing the State of California to vacate and set aside the death sentence in People v. Douglas Ray Stankewitz, Fresno County Superior Court Case No. 227015-5, unless within 90 days of the entry of judgment of this order, the State of California initiates proceedings to retry Stankewitz's sentence. In the alternative, the State of California shall resentence Stankewitz to life without the possibility of parole.\nThe Clerk is directed to enter judgment in this case.\nIT IS SO ORDERED.\n\nAppendix A\n\nSummary Chronology of Stankewitz's childhood\nExcerpts from Jointly Filed Documents (Notice of Filing: Doc. No. 443) and Supplemental to Joint Submission Documents (Doc. Nos. 556-559, 561).\n\n\n 5/31/58 Date of Birth, Douglas Stankewitz\n\n\n\n*1113\n 11/18/64 reported beating to Fresno Police Department,\n police picked him up \"in shock,\"\n Sonny was in jail\n 2/13/65 taken to police by neighbor, found at their\n door after beating\n 2/26/65 in Fresno Co. Hospital (removal from home\n due to abuse)\n 3/9/65 released from hospital\n 3/9-10/65 2 unsuccessful foster home placements, runaway\n threats & attempts, threat to throw\n chair/self through window, hitting, kicking,\n etc.\n 3/10-23/65 in Juvenile Hall pending placement, problems\n in younger boys unit, transferred to\n girls unit\n 3/11/65 Psych Eval., Dr. Simmang: erratic and\n unpredictable behavior, required restraints,\n rapid mood changes, average normal intelligence,\n no signs of psychosis, recommend\n further exam at Napa State Hospital\n 3/16/65 Joe Walden (Fresno Co. Probation) letter to\n Napa State Hospital requesting admission\n 3/23/65 Napa State Psychiatric Hospital (uncorroborated\n allegations of sexual abuse while\n here, assumption made by Rosetta\n Bollmeyer based on ambiguous statement by\n Stankewitz)\n 3/25/65 Donn Beddle, Ph.D.: average intellectual\n potential, difficulties controlling himself\n emotionally\n 5/24/65 C.W. Brackenridge, Ph.D.: mild hyperactivity,\n some aggressiveness, IQ of 85\n 6/16/65 Napa Hospital: diagnosis of adjustment\n reaction of childhood, conduct disturbance;\n emotionally disturbed, severe tantrums,\n extremely aggressive behavior, immature\n speech\n 11/12/65 letter recommending discharge from Napa\n Hospital and for foster care, diagnosis-not\n mentally ill\n 12/15/65 released from Napa Hospital, no appropriate\n foster homes in Fresno\n 4/1/66 placed in Santa Rosa/Sebastopol foster home\n of Rosamond Bollmeyer\n 1968 Stankewitz alleges first sexual experience\n about age 10, also same approximate age\n began sniffing paint/gas, using wide range of\n drugs & alcohol including hallucinogens\n 2/10/70 removed from Bollmeyer's home (Bollmeyer\n stated he was difficult to handle, uncontrollable\n and requested his removal)\n 2/17/70 returned to Juvenile Hall by new foster\n parents, who stated he was out of control\n (over next 6-7 weeks: rotated between being\n with mother, in foster care or juvenile\n hall)\n 4/30/70 police report of Stankewitz & his brother\n chasing & threatening girls at Dinkey Playground,\n mother says she had sent him to\n Juvenile Hall numerous times as she could\n not control him at home\n 5/6/70 Psych Eval. w/EEG, Dr. Zeifert: sudden\n loss of control, becomes abusive, uses vile\n language, combative, ample evidence of neurotic\n disturbance (bitten fingernails and bed-wetting)\n may be due to emotional instability,\n recommend stable program & medication\n 5/20/70 probation report: adjustment in Juvenile\n Hall has been less than satisfactory, numerous\n write-ups regarding his behavior have\n often resulted in the use of physical restriants\n & holding room\n 5/25/70 James Caffee, M.D.: although abnormal\n EEG, doubt outbursts are caused by seizure\n because triggered by frustration and not\n followed by sleep, no evidence of psychic\n depression\n 5-6/70 various tests, treatments ordered by juvenile\n court\n 6/30/70 letter from probation officer recommending\n private school\n 7/24/70 C.W. House, Ph.D.: impulse-ridden child,\n normal intelligence, but processes are impaired\n regarding judgment, impulse control,\n appreciation of rules and regulations, limited\n concern for the needs of others, severe characterological\n disorder, impulses expressed\n without concern for the consequences\n 8/11/70 to Borrego Palms School\n 11/24/70 transfer to Awhanee Schools (closer to\n home)\n 4/14/71 ran away to mother's house, taken to\n Juvenile Hall when refused to return to\n Awhanee\n 5/6/71 Probation Report/Social Study, Juvenile Ct,\n ran away from Awhanee\n 6/15/71 with aunt Maggie Marquez\n 8/9/71 return to Juvenile Hall (assault/robbery), 2\n weeks prior spent with uncle Joe Lopez\n around Fresno\n 8/19/71 Incident report, Juvenile Hall, hit smaller\n boy, recommend transfer to A Unit\n 8/31/71 to aunt Maggie Marquez\n 10/27/71 to Juvenile Hall (probation violation, failure\n to attend school)\n 2/22/72 to father; spent much of this time at aunt\n Maggie Marquez's or on the streets, exposed\n to large quantities of drugs/violence with\n father's motorcycle gang\n\n\n\n*1114\n 3/13/72 to Juvenile Hall (runaway)\n 4/21/72 received at NRCC (No. Reception Center Clinic)\n 5/8/72 Social Evaluation, NRCC, pre-CYA commitment\n 5/18/72 to Los Guilucos School\n 6/5/72 Transfer Report, Los Guilucos School,\n behavior hostile & aggressive, not able to\n accept rules, verbally and physically abusive,\n required force to restrain, recommend\n transfer to O.H. Close School\n 10/4/72 to NRCC, medical furlough\n 10/6/72 return to O.H. Close School\n 12/7/72 Placement Request, O.H. Close School:\n diagnosis of neurotic acting out, has made\n progress in controlling his temper, growing\n in self-awareness, doing well in school,\n continues to be a very unstable young man,\n recommend discharge to aunt Maggie\n Marquez\n 1/11/73 paroled to aunt Maggie Marquez\n 3/9/73 returned to mother after her return from\n LA following parole on manslaughter\n charge, probation report recommended it\n would be better if Stankewitz worked rather\n than attended school\n 3/18/73 arrested, drunk\n 3/29/73 released on parole\n 4/24/73 George Key assault/GTA, subsequent CHP\n chase & shooting of Eddie Davis\n 6/11/73 to NRCC\n 6/13/73 Recommitment Report\n 6/26/73 Social Evaluation, NRCC: \"There was no\n remorse for what had happenedexcept\n that he had been caught, no assurance that\n parallel occurrences would not happen when\n again on the streets.\" Feels no responsibility\n for depriving anyone of health, property\n or even life, believe his ingratiating and\n pleasant characteristics are surface only,\n look upon him as dangerous.\n 7/6/73 to O.H. Close School\n 8/5/73 Psych Eval., Dr. Melges, \"extremely violence\n prone,\" concur with dx of antisocial\n personality made by Edward Hodgson, M.D.\n at NRCC on 6/28/73\n 2/8/74 Psych Eval., Dr. Melges, 2nd session: substantial\n gains, would like to see some kind of\n moral sense, an ethical concern for others,\n despite improvements, at this stage\n Stankewitz sees man as an individual\n alonehasn't grasped the concept of men\n interdigitating with others\n 2/27/74 Probation Report, Juvenile Ct, recommend\n release to Aunt Maggie Marquez\n 4/6/74 Psych Eval., Dr. Melges, 3rd session:\n Stankewitz initiated, difficulty controlling\n anger, quite overtly violent\n 5/6/74 Transfer Order, O.H. Close School: since\n arrival not participated in academic or treatment\n programs, numerous incidents, grossly\n misplaced with other 16 year olds due to\n physical size and reliance on classic prison-type\n methods of pressuring and intimidation,\n potential for threats & explosiveness, not\n amenable to influence or external controls,\n recommend transfer to Karl Holton School\n 5/30/74 Psych Eval., Karl Holton School, Adolf\n Pfefferbaum, M.D.: slightly below normal\n intelligence, but may be from profound lack\n of insight, no evidence of hallucinations,\n delusions or psychotic thought process, sees\n aggressive behavior, hurting and even killing\n people as the solution to his frustration,\n agree with past dx of Sociopathic Personality,\n antisocial type, considerable allegiance\n to criminal element, potential for future\n violence is quite high\n 7/7/74 Incident report, CYA, attempted escape\n 12/74 re-evaluation at NRCC (7 write-ups at Karl\n Holton School): not motivated to change\n 1/9/75 report: drug of choice-hallucinogens\n 2/7/75 Psych Eval., Karl Holton School, A.\n Pfefferbaum, M.D.: 9 additional months for\n infractions, not motivated to change, no evidence\n of obsessions, hallucinations, thought\n broadcasting, suicidal ideation or severe depression,\n diagnosis of sociopathic personality,\n antisocial type\n 3/17/75 YTS (Chino), add'l 18 mos. for infractions\n (then 15 mos. cut for good progress, obtained\n high school diploma, taken college courses)\n 7/20/75 assault on employee of CYA\n 10/3/75 Psych Eval., S. Resnick, Ph.D.: diagnosis of\n antisocial personality, possible psychomotor\n epilepsy, no evidence of hallucinations,\n delusions, psychotic thinking or behavior, denies\n any depression\n 5/1/76 Disability Survey, Dx: Sociopathic\n personality\n 8/4/76 admission to Emotional Behavior Program\n rejected, prognosis for improvement via\n psychotherapy judged to be poor\n 9/27/76 Psych Eval., H.T. Rondeau, M.D.: no evidence\n of thinking disorder, disturbance in\n affect, delusions or hallucinations, oriented\n to time, place and person, guess IQ to be\n high normal, Dx: sociopathic personality,\n guarded prognosis but feel further institutionalization\n\n\n\n*1115\n might reverse the gains he has\n made\n 10/18/76 8 day training furlough, released to aunt\n Maggie Marquez\n 10/24/76 arrest, battery (returned to CYA)\n 2/2/77 paroled from CYA, to mother\n 4/18/77 arrest (charges dropped); scuffle with booking\n officers at the Sacramento County jail\n resulted in assault charges\n 6/2/77 sentenced\n 1/14/78 released from Sacramento Co. jail\n 1/20/78 robs gas station in Sacramento, accomplice\n with a gun; later same night robs two\n massage parlor customers\n 1/25/78 assault to commit robbery in card room,\n Sacramento\n 2/8/78 Theresa Graybeal kidnapping/murder;\n Jesus Meraz, a.k.a. Valenti Cordero\n attempted robbery\n\n\nOrder Granting Respondent's Request for Stay of Judgment Pending Resolution of Motion for Reconsideration\nThis matter is before the Court pursuant to a Motion, filed by Respondent Robert Wong (\"the Warden\"), seeking reconsideration under the Federal Rules of Civil Procedure 59 and 60, of the September 22, 2009 Memorandum and Order Granting Petition for Writ of Habeas Corpus, and seeking a corresponding stay of the judgment pending resolution of the motion for reconsideration. The Warden asserts that under Rule 62(b) of the Federal Rules of Civil Procedure, the Court may stay execution of a judgment. The Warden contends a stay will allow for the orderly consideration of the motion for reconsideration and states that counsel for Petitioner Douglas Ray Stankewitz (\"Stankewitz\") does not oppose the stay. A hearing on the reconsideration motion is set for December 14, 2009. Stankewitz's opposition to the motion for reconsideration is due on or before November 30, and the Warden's reply is due by December 7, 2009.\nThe Warden's request for a stay of judgment pending resolution of the motion for reconsideration is GRANTED.\nIT IS SO ORDERED.\nNOTES\n[1] Stankewitz's parents, Marian Sample and William R. \"Sonny\" Stankewitz, were married 1/18/55at which time his mother already had two children: Frank Montgomery (dob: 1951) and Gary Lewis (dob: 6/7/54). Marian and Sonny had nine children: Glenda, born 8/17/55; William \"Willie\" & Wilma \"Tillie\", twins born 3/26/57; Douglas, born 5/31/58; Johnnie, born 8/17/59; Roger, born 1/2/61; Rhonda, born 1/24/62; Teddy, born 2/12/64; and Rodney, born 3/29/66. At the time Stankewitz was removed, there appear to have been nine children in the home-Rodney was not yet born, and a March 1965 report does not list Frank Montgomery with the other children in the home (which is consistent with a report that Frank lived with his maternal grandmother until he was 15). SJS 0073, Doc. 556, Vol. 1. The ages of the children at home when Stankewitz was removed, in February of 1965, were: Gary 10, Glenda 9, Willie & Tillie 7, Douglas Stankewitz 6, Johnnie 5, Roger 4, Rhonda 3, and Teddy 1.\n[2] Although the Stankewitz house was reported to be dilapidated but clean in a March 1965 report, 1965, SJS 0071 (Doc. 556, Vol.1), subsequent inspections revealed substandard living conditions in October 1967, SJS 2055 (Doc. 559, Vol. 18, relating filthy conditions and neglect of minor children) and September 1969, SJS 2039 (Doc. 559, Vol. 17, home \"barely adequate,\" \"care and control of said minors appears to be marginal\").\n[3] Stankewitz stated his increased drug and alcohol use began at age 11-12. SJS 235, Doc. 556, Vol. 2 (Dr. LaDue's 1989 psychological evaluation).\n[4] The Warden asserts these emergency room visits were for routine childhood illnesses.\n[5] The Warden asserts the record does not include allegations of on-going physical abuse, pointing to Marian's statements that Sonny \"never hit the children\" and only spanked Glenda once, that she \"never really spanked any of the children,\" and that the beating of Stankewitz was isolated and out of the ordinary. SJS 269, Doc. 556, Vol. 3, and 1044, Doc. 558, Vol. 9. This assertion is contradicted by Glenda's statement that Marian used to regularly beat all of the kids. SJS 1255, Doc. 558, Vol. 11, (Dec. 17, 1989 interview by Howard Liptzin, Solomon Investigations).\n[6] The Warden contends the allegations regarding Frank Montgomery's abuse of his younger half-siblings are not applicable to Stankewitz, as he was removed from the home prior to Frank's living there, and Frank was in jail by the time Stankewitz returned home.\n[7] Contradicting this assertion, Stankewitz stated his first sexual experience was at age 10 in a foster home, and he recalled it as pleasurable. SJS 227-228, Doc. 556, Vol. 2 (4/78 interview by Ross Becker).\n[8] Some of these allegations are questionable. The facts in subsections m. and n. are not consistent with reports of Stankewitz's behavior as related in NSH records. To the extent the source for the allegations is the foster mother in Sebastopol, Ms. Bollmeyer, her credibility may be undermined in light of lies that she told to Stankewitz's teacher, Mrs. Hunt (i.e., that Stankewitz and his siblings were kept in cages by their parents, that he couldn't stand up straight because his cage was too short, that his siblings were also at NSH). See SJS 822-24, Doc. 558, Vol. 8 and SJS 821A, Doc. 561. If the source is Ms. Bollmeyer's daughter, Rosetta, her credibility is undermined by statements from her brother Rick of the conflict between Rosetta and their mother and Rosetta's resulting animosity toward the foster children, see SJS 14, Doc. 556, Vol. 1, and by inconsistencies between her allegations and statements made by Stankewitz.\n\n",
"ocr": false,
"opinion_id": 2579177
}
] |
E.D. California
|
District Court, E.D. California
|
FD
|
California, CA
|
2,675,367 |
Ann, Calabresi, Debra, Dennis, Guido, Jacobs, Livingston
| 2014-05-22 | false |
associates-against-outlier-fraud-v-huron-consulting-group-inc
| null |
Associates Against Outlier Fraud v. Huron Consulting Group, Inc.
|
ASSOCIATES AGAINST OUTLIER FRAUD, Plaintiff-Appellant-Cross-Appellee, United States of America, Plaintiff-Counter-Claimant-Counter-Defendant, State of New York, Ex Rel. Associates Against Outlier Fraud, Plaintiff, v. HURON CONSULTING GROUP, INC., Huron Consulting Group, LLC., Huron Consulting Services, LLC., Empire Health Choice Assurance, Inc., DBA Empire Medicare Services, Defendants-Appellees-Cross-Appellants, Speltz and Weis, KMPG, Healthcare Management Solutions, LLC., Defendants
|
Philip R. Michael, Michael Law Group, New York, NY, for Appellant., Robert Salcido, Akin Gump Strauss Hauer & Feld LLP, Washington, D.C., for Appellees Huron Consulting Group, Inc., Huron Consulting Group, LLC, Huron Consulting Services, LLC., Michael D. Leffel (Michael J. Tuteur, on the brief), Foley & Lardner, LLP, Madison, Wisconsin, for Appellees Empire HealthChoice Assurance, Inc. d/b/a/ Empire Medicare Services.
| null | null | null | null | null | null | null | null | null | null | 0 |
Unpublished
| null |
<parties id="b66-5">
ASSOCIATES AGAINST OUTLIER FRAUD, Plaintiff-Appellant-Cross-Appellee, United States of America, Plaintiff-Counter-Claimant-Counter-Defendant, State of New York, ex rel. Associates Against Outlier Fraud, Plaintiff, v. HURON CONSULTING GROUP, INC., Huron Consulting Group, LLC., Huron Consulting Services, LLC., Empire Health Choice Assurance, Inc., DBA Empire Medicare Services, Defendants-Appellees-Cross-Appellants, Speltz and Weis, KMPG, Healthcare Management Solutions, LLC., Defendants.
</parties><br><docketnumber id="b66-11">
Nos. 13-1237 (L), 13-1328, 13-1461.
</docketnumber><br><court id="b66-12">
United States Court of Appeals, Second Circuit.
</court><br><decisiondate id="b66-13">
May 22, 2014.
</decisiondate><br><attorneys id="b66-15">
Philip R. Michael, Michael Law Group, New York, NY, for Appellant.
</attorneys><br><attorneys id="b66-16">
Robert Salcido, Akin Gump Strauss Hauer
<em>
&
</em>
Feld LLP, Washington, D.C., for Appellees Huron Consulting Group, Inc., Huron Consulting Group, LLC, Huron Consulting Services, LLC.
</attorneys><br><attorneys id="b66-17">
Michael D. Leffel (Michael J. Tuteur, on the brief), Foley
<em>
&
</em>
Lardner, LLP, Madison, Wisconsin, for Appellees Empire HealthChoice Assurance, Inc. d/b/a/ Empire Medicare Services.
</attorneys><br><judges id="b66-18">
Present: DENNIS JACOBS, GUIDO CALABRESI, DEBRA ANN LIVINGSTON, Circuit Judges.
</judges>
|
[
"567 F. App'x 44"
] |
[
{
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"type": "010combined",
"page_count": 4,
"download_url": "http://www.ca2.uscourts.gov/decisions/isysquery/45522ab6-13bf-400d-bd68-0e1c713c5a3f/1/doc/13-1237_so.pdf",
"author_id": null,
"opinion_text": " 13-1237 (L)\n Associates Against Outlier Fraud v. Huron Consulting Group, Inc., et al.\n\n\n UNITED STATES COURT OF APPEALS\n FOR THE SECOND CIRCUIT\n\n SUMMARY ORDER\n RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED\n ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE\n PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A\n DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN\n ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST\n SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.\n\n 1 At a stated term of the United States Court of Appeals\n 2 for the Second Circuit, held at the Thurgood Marshall United\n 3 States Courthouse, 40 Foley Square, in the City of New York,\n 4 on the 22nd day of May, two thousand fourteen.\n 5\n 6 PRESENT: DENNIS JACOBS,\n 7 GUIDO CALABRESI,\n 8 DEBRA ANN LIVINGSTON,\n 9 Circuit Judges.\n10\n11 - - - - - - - - - - - - - - - - - - - -X\n12 Associates Against Outlier Fraud,\n13 Plaintiff-Appellant - Cross\n14 -Appellee,\n15\n16 United States of America,\n17 Plaintiff - Counter-\n18 Claimant - Counter-\n19 Defendant,\n20\n21 State of New York, ex rel. Associates\n22 Against Outlier Fraud,\n23 Plaintiff,\n24\n25 -v.- 13-1237(L), 13-1328,\n26 13-1461\n27\n\n 1\n\f 1\n 2 Huron Consulting Group, Inc., Huron\n 3 Consulting Group, LLC., Huron\n 4 Consulting Services, LLC., Empire\n 5 Health Choice Assurance, Inc., DBA\n 6 Empire Medicare Services,\n 7 Defendants-Appellees -\n 8 Cross-Appellants,\n 9\n10 Speltz and Weis, KMPG, Healthcare\n11 Management Solutions, LLC.,\n12 Defendants.\n13\n14 - - - - - - - - - - - - - - - - - - - -X\n15\n16 FOR APPELLANT: PHILIP R. MICHAEL, Michael Law\n17 Group, New York, New York.\n18\n19 FOR APPELLEE: ROBERT SALCIDO, Akin Gump\n20 Strauss Hauer & Feld LLP,\n21 Washington, D.C., for Appellees\n22 Huron Consulting Group, Inc.,\n23 Huron Consulting Group, LLC,\n24 Huron Consulting Services, LLC.\n25\n26 MICHAEL D. LEFFEL (Michael J.\n27 Tuteur, on the brief), Foley &\n28 Lardner, LLP, Madison,\n29 Wisconsin, for Appellees Empire\n30 HealthChoice Assurance, Inc.\n31 d/b/a/ Empire Medicare Services.\n32\n33 Appeal from a judgment of the United States District\n34 Court for the Southen District of New York (Rakoff, J.).\n35\n36 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED\n37 AND DECREED that the judgment of the district court be\n38 AFFIRMED.\n39\n40 Plaintiff-relator Associates Against Outlier Fraud\n41 (“relator”) appeals from the judgment of the United States\n42 District Court for the Southern District of New York\n43 (Rakoff, J.), granting summary judgment in favor of\n44 defendants Huron Consulting Group, Inc., Huron Consulting\n45 Group, LLC, and Huron Consulting Services, LLC\n46 (collectively, “Huron”), Empire Health Choice Assurance,\n\n 2\n\f 1 Inc., and Empire Medicare Services (collectively, “Empire”).\n 2 Relator alleged that Huron violated the False Claims Act, 31\n 3 U.S.C. § 3729 (“FCA”), and the analogous New York False\n 4 Claims Act, N.Y. State Fin. Law § 187 et seq., by submitting\n 5 Medicare claims for certain “outlier payments” to which it\n 6 was not entitled, and alleged that Empire, as fiscal\n 7 intermediary, failed to properly review the claims before\n 8 paying them. The district court granted summary judgment in\n 9 favor of the defendants, on the grounds that no statute or\n10 regulation prohibited Huron’s actions, and that Empire\n11 complied with all the legal requirements of a fiscal\n12 intermediary. On appeal, relator chiefly renews the\n13 arguments raised below. In their cross-appeal, Empire and\n14 Huron argue that the district court lacked subject matter\n15 jurisdiction because the relator obtained the information in\n16 his complaint from public disclosures and was not the\n17 “original source” of the information contained in the\n18 complaint. See 31 U.S.C. § 3730(e)(4). We assume the\n19 parties’ familiarity with the underlying facts, the\n20 procedural history, and the issues presented for review.\n21\n22 The district court’s denial of the defendants’ motion\n23 to dismiss for lack of subject matter jurisdiction is\n24 reviewed de novo. United States ex rel. Kirk v. Schindler\n25 Elevator Corp., 601 F.3d 94, 103 (2d Cir. 2010), rev’d on\n26 other grounds, 131 S. Ct. 1885 (2011). We conclude, for\n27 substantially the same reasons set forth in the district\n28 court’s February 16, 2012 order, that the district court had\n29 subject matter jurisdiction over this case pursuant to 31\n30 U.S.C. § 3730(e)(4).\n31\n32 We review the district court’s grant of summary\n33 judgment de novo. See Gonzalez v. City of Schenectady, 728\n34 F.3d 149, 154 (2d Cir. 2013). “Summary judgment is\n35 appropriate if there is no genuine dispute as to any\n36 material fact and the moving party is entitled to judgment\n37 as a matter of law.” Id. In making this determination, we\n38 “resolve all ambiguities and draw all permissible factual\n39 inferences in favor of the party against whom summary\n40 judgment is sought.” Terry v. Ashcroft, 336 F.3d 128, 137\n41 (2d Cir. 2003) (internal quotation marks and citation\n42 omitted). Summary judgment is appropriate “[w]here the\n43 record taken as a whole could not lead a rational trier of\n44 fact to find for the non-moving party.” Matsushita Elec.\n45 Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587\n46 (1986).\n47\n\n 3\n\f 1 A review of the record confirms, as the district court\n 2 concluded in its March 4, 2013 memorandum order, that\n 3 relator has failed to identify any statute or regulation\n 4 prohibiting Huron’s claim submission practices. Assuming\n 5 arguendo that the relevant statutes and regulations prohibit\n 6 increasing charges unrelated to costs, there is not\n 7 sufficient evidence in the record to permit a rational\n 8 factfinder to find that this occurred here.\n 9\n10 For the foregoing reasons, and finding no merit in\n11 relator’s other arguments, we hereby AFFIRM the judgment of\n12 the district court.\n13\n14 FOR THE COURT:\n15 CATHERINE O’HAGAN WOLFE, CLERK\n16\n17\n18\n19\n\n\n\n\n 4\n\f",
"ocr": false,
"opinion_id": 2675367
}
] |
Second Circuit
|
Court of Appeals for the Second Circuit
|
F
|
USA, Federal
|
537,392 | null | 1990-02-21 | false |
55-fair-emplpraccas-844-54-empl-prac-dec-p-40338-s
| null |
55 Fair empl.prac.cas. 844, 54 Empl. Prac. Dec. P 40,338 Stevens v. Dept. Of Treasury
| null | null | null | null | null | null | null | null | null | null | null | null | 0 |
Published
| null | null |
[
"897 F.2d 526"
] |
[
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": "http://bulk.resource.org/courts.gov/c/F2/897/897.F2d.526.89-1432.html",
"author_id": null,
"opinion_text": "897 F.2d 526\n 55 Fair Empl.Prac.Cas. 844,54 Empl. Prac. Dec. P 40,338Stevensv.Dept. of Treasury*\n NO. 89-1432\n United States Court of Appeals,Fifth Circuit.\n FEB 21, 1990\n \n 1\n Appeal From: W.D.Tex.\n \n \n 2\n AFFIRMED.\n \n \n \n *\n Fed.R.App.P. 34(a); 5th Cir.R. 34.2\n \n \n ",
"ocr": false,
"opinion_id": 537392
}
] |
Fifth Circuit
|
Court of Appeals for the Fifth Circuit
|
F
|
USA, Federal
|
203,107 |
Lynch, Circuit Judge, Campbell and Selya, Senior Circuit Judges
| 2008-01-18 | false |
cg-ex-rel-as-v-five-town-community-school-district
| null |
C.G. Ex Rel. A.S. v. Five Town Community School District
|
C.G. and B.S., as Parents and Next Friends of A.S., a Minor, Plaintiffs, Appellants, v. FIVE TOWN COMMUNITY SCHOOL DISTRICT Et Al., Defendants, Appellees
|
Staci K. Converse, with whom Richard L. O’Meara and Murray, Plumb & Murray were on brief, for appellants., James C. Schwellenbach, with whom Drummond Woodsum & MacMahon was on brief, for appellees.
| null | null | null | null | null | null | null |
Heard Nov. 7, 2007.
| null | null | 27 |
Published
| null |
<parties id="b305-9">
C.G. and B.S., As Parents and Next Friends of A.S., A Minor, Plaintiffs, Appellants, v. FIVE TOWN COMMUNITY SCHOOL DISTRICT et al., Defendants, Appellees.
</parties><br><docketnumber id="b305-12">
No. 07-1708.
</docketnumber><br><court id="b305-13">
United States Court of Appeals, First Circuit.
</court><br><otherdate id="b305-15">
Heard Nov. 7, 2007.
</otherdate><br><decisiondate id="b305-16">
Decided Jan. 18, 2008.
</decisiondate><br><attorneys id="b307-19">
<span citation-index="1" class="star-pagination" label="281">
*281
</span>
Staci K. Converse, with whom Richard L. O’Meara and Murray, Plumb & Murray were on brief, for appellants.
</attorneys><br><attorneys id="b307-20">
James C. Schwellenbach, with whom Drummond Woodsum & MacMahon was on brief, for appellees.
</attorneys><br><judges id="b307-21">
Before LYNCH, Circuit Judge, CAMPBELL and SELYA, Senior Circuit Judges.
</judges>
|
[
"513 F.3d 279"
] |
[
{
"author_str": "Selya",
"per_curiam": false,
"type": "010combined",
"page_count": 23,
"download_url": "http://www.ca1.uscourts.gov/pdf.opinions/07-1708-01A.pdf",
"author_id": null,
"opinion_text": "\n513 F.3d 279 (2008)\nC.G. and B.S., As Parents and Next Friends of A.S., A Minor, Plaintiffs, Appellants,\nv.\nFIVE TOWN COMMUNITY SCHOOL DISTRICT et al., Defendants, Appellees.\nNo. 07-1708.\nUnited States Court of Appeals, First Circuit.\nHeard November 7, 2007.\nDecided January 18, 2008.\n*280 *281 Staci K. Converse, with whom Richard L. O'Meara and Murray, Plumb & Murray were on brief, for appellants.\nJames C. Schwellenbach, with whom Drummond Woodsum & MacMahon was on brief, for appellees.\nBefore LYNCH, Circuit Judge, CAMPBELL and SELYA, Senior Circuit Judges.\nSELYA, Senior Circuit Judge.\nThis case requires us to examine the rights of a disabled child under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-1415. The principal issue, scantily addressed in the *282 case law, involves how judicial review should proceed when the last individualized education program (IEP) proposed by the school system is incomplete.\nHere, the district court found that the IEP's incompleteness was due to the parents' obstruction of the developmental process. It proceeded to consider extrinsic evidence and concluded that, had the parents permitted the process to run its course, the school system would have provided the child with a satisfactory IEP. On that basis, it decreed that the parents were not entitled either to reimbursement for costs incurred in a private placement or to compensatory education benefits.\nThe parents now appeal. We conclude that the lower court committed no clear error in weighing the facts. While we reach the same ultimate conclusion as did the court below, that court's meticulous factfinding allows us to take a different, more direct analytic path. In the end, we affirm the judgment below.\nI. BACKGROUND\nThe district judge, in the first instance, referred this case to a magistrate judge for a report and recommendation. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The magistrate judge canvassed the record, made extensive findings of fact, and set forth various conclusions of law. C.G. & B.S. v. Five Town Cmty. Sch. Dist., Civ. No. 05-237 (D.Me. Feb. 12, 2007) [2007 WL 494994]. The, district judge, in a summary order, adopted the magistrate judge's recommended analysis in its entirety and entered judgment accordingly. C.G. & B.S. v. Five Town Cmty. Sch. Dist., Civ. No. 05-237 (D.Me. Apr. 6, 2007). For simplicity's sake, we do not distinguish further between the magistrate judge and the district judge but, rather, take an institutional view and refer only to \"the district court.\"[1]\nWe recount the background facts as supportably found by the district court. C.G. and B.S. are the parents of A.S., a teenage girl who suffers from an emotional disability. The family resides in Camden, Maine. Five Town Community School District (the School District) is the school system in which A.S. is entitled to receive public education.\nThe parents first met formally with Five Town about A.S.'s potential to qualify for services under the IDEA on March 3, 2004. They requested that the School District pay for A.S., who was then fourteen years old, to enroll in a private residential placement. Before the School District could evaluate the bona fides of this request, A.S. hit a crisis point and her parents unilaterally transferred her into a private residential placement outside of Maine. The parents do not seek to recover the costs of that placement in this appeal, so we make no further mention of it.\nNotwithstanding efforts on the part of the School. District to re-start the IDEA eligibility process, nothing of consequence happened for well over a year. In the interim (unbeknownst to the School District), A.S. returned to Maine, enrolled for several months as a residential student in a private school, and upon leaving spent two additional months without any scholastic affiliation.\nIn June of 2005, A.S.'s parents demanded a due process hearing under the IDEA. See 20 U.S.C. § 1415(f). The School District sought to meet with them in order to *283 resume the earlier eligibility discussions. The due process hearing was deferred pending the completion of this attempt to reach a consensus.\nThe common practice is to form a team of parents, teachers, school administrators, and others to evaluate a child with a disability and, if she is found eligible for remedial services, to develop an IEP. See id § 1414(d)(1)(8) & (d)(3). In Maine, this cohort is called a Peer Evaluation Team (PET). See XX-XXX-XXX Me.Code R. §:§ 1.4, 8.1. The School District assembled such a team and scheduled the initial PET meeting for September 1, 2005. During that session, the parents agreed that an independent evaluator, Dr. Frank McCabe, could assess A.S.\nAfter the PET participants received the evaluator's report, the School District scheduled a second PET meeting for October 12, 2005. At that session, the participants discussed the evaluator's assessment, concluded that A.S. qualified for services as a disabled child, and began work to develop an IEP. The participants jointly delineated the main components to be included in the IEP and noted areas of the IEP that would require additional input from A.S., her therapist, and her parents.\nDuring the same meeting, some placement options were discussed. The independent evaluator indicated that A.S. could receive an adequate and appropriate education in a public school day program. In response, the School District described some public school options, including Camden Hills Regional High School (CHRHS) and the Zenith program. A.S. previously had attended CHRHS, and her parents expressed concern about a placement there. They seemed willing, however, to learn more about the Zenith non-residential day program or any similar regime.\nThe School District indicated that it would send the parents a copy of a proposed IEP prior to the next PET meeting. On October 18, 2005, it transmitted an IEP document to the parents by facsimile. The October 18 version of the IEP included the main components of the program to which the participants previously had agreed. Consistent with the discussions at the October 12 conclave, however, the IEP left open other areas for later development. It is nose-on-the-face plain from even a cursory inspection of the October 18 submission that the IEP was not intended to constitute a completed IEP.[2]\nThe next PET meeting took place on October 20, 2005. At that session, the participants discussed placement options. The meeting was \"very contentious.\" Five Town, 2007 WL 494994, at *18. The participants quickly reached an impasse: the parents insisted that A.S. be educated in a therapeutic residential setting, whereas the School District insisted that a non-residential public school placement could provide A.S. with an adequate and appropriate education. The meeting ended abruptly when the parents announced that they had decided to send A.S. to the F.L. Chamberlain School (an out-of-state residential institution) and would seek reimbursement for the costs incurred. The meeting never progressed to a discussion either of the IEP or of low to fill the gaps in it.\nA.S.'s parents memorialized their unilateral placement decision in a letter sent the following week to the School District. Given *284 this parting of the ways, the due process hearing moved forward. Arguing that the School District's proposed IEP and refusal to sanction a residential placement betokened a failure to provide A.S. with a free and appropriate public education (FAPE), the parents sought compensatory education and/or reimbursement for the expenses incurred in educating A.S. at Chamberlain. The School District denied any breach of its duties under the IDEA. The hearing went forward, and the hearing officer ultimately rejected the parents' entreaties.\nUndaunted, the parents shifted the battleground to the federal district court. See 20 U.S.C. § 1415(i)(2)(A). As previously noted, the district judge, on de novo review of the magistrate judge's report and recommendation, upheld the hearing officer's ukase. This appeal followed.\nII. ANALYSIS\nIn IDEA cases, as elsewhere, we review the district court's answers to questions of law de novo and its findings of fact for clear error. Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1087 (1st Cir.1993); Roland M. v. Concord Sch. Comm., 910 F.2d 983, 990-91 (1st Cir.1990). Clear-error review demands substantial deference to the trier; under that standard, we may reverse only if the record, read as a whole, gives rise to a \"strong, unyielding belief that a mistake has been made.\" Lenn, 998 F.2d at 1087 (quoting Cumpiano v. Banco Santander P.R., 902 F.2d 148, 152 (1st Cir.1990)). Whether an IEP is adequate and appropriate is a mixed question of law and fact. Thus, appellate review involves a degree-of-deference continuum, which takes into account whether particular aspects of that determination are fact-dominated or law-dominated. Mr. I. v. Me. Sch. Admin. Dist. No. 55, 480 F.3d 1, 10 (1st Cir.2007); see In re Extradition of Howard, 996 F.2d 1320, 1327-28 (1st Cir.1993).\nHere, the parents' chief argument is that the district court applied an improper legal rule in evaluating the October 18 IEP. In turn, this argument depends on whether the IEP was complete (and if not, why not). In addressing it, we will first step back and sketch the architecture of the IDEA. Once this is done, we will consider the completeness of the proffered IEP, the cause of its stunted growth, whether the die was cast at that point, and the parents' prayers for relief.\n\nA. The IDEA.\n\nCongress designed the IDEA as part of an effort to help states provide educational services to disabled children. Each state receiving federal funding through its provisions must ensure that every disabled school-age child receives a FAPE. 20 U.S.C. § 1412(a)(1)(A). A FAPE encompasses special education and support services provided free of charge. See id. § 1401(9). A school system has met this obligation as long as the program that it offers to a disabled student is \"reasonably calculated\" to deliver \"educational benefits.\" Hendrick Hudson Bd. of Educ. v. Rowley, 458 U.S. 176, 207, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982); see Lt. T.B. v. Warwick Sch. Comm., 361 F.3d 80, 83 (1st Cir.2004).\nAt bottom, this obligation is an obligation to provide an adequate and appropriate education. The IDEA does not place school systems under a compulsion to afford a disabled child an ideal or an optimal education. See Lenn, 998 F.2d at 1086.\nIf a school system is unable to furnish a disabled child with a FAPE through a public school placement, it may be obliged to subsidize the child in a private program. See Burlington Sch. Comm. v. Mass. Dep't of Educ., 471 U.S. 359, 370, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985). In *285 such circumstances, the school system will be responsible for the reasonable costs incident to that private placement. See id. at 369, 105 S.Ct. 1996; Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 31 (1st Cir.2006).\nIt is common ground that the IDEA manifests a preference for mainstreaming disabled children. See, e.g., Rowley, 458 U.S. at 202, 102 S.Ct. 3034; Roland M., 910 F.2d at 987. This entails ensuring, \"[t]o the maximum extent appropriate,\" that disabled children are taught with non-disabled children. 20 U.S.C. § 1412(a)(5)(A). The goal, then, is to find the least restrictive educational environment that will accommodate the child's legitimate needs. See id.; see also Honig v. Doe, 484 U.S. 305, 321, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988); Kathleen H. v. Mass. Dep't of Educ., 154 F.3d 8, 11 (1st Cir. 1998).\nThe method of the IDEA is straightforward. Under it, school systems must take steps to identify children who may qualify as disabled, evaluate each such child to determine his or her eligibility for statutory benefits, and develop a customized IEP designed to ensure that the child receives a level of educational benefits commensurate with a FAPE. 20 U.S.C. §§ 1412(a)(3)-(4), 1414(a)-(b). The IEP must include information about the child's disabilities, a statement of educational goals, a description of the measures that will be used to determine whether the child has met those goals, and a compendium of special education and related services that will be furnished to the child. See id. § 1414(d)(1)(A); see also Roland M., 910 F.2d at 987 (describing IEP requirements under the precursor to the IDEA). Those related services typically will consist of individualized services tailored to address the child's particular needs. See 20 U.S.C. § 1414(d)(1)(A); see also Burlington Sch. Comm., 471 U.S. at 368, 105 S.Ct. 1996.\nThe development of an IEP is meant to be a collaborative project. A team must be identified for that purpose. It should include the parents, teachers representing various parts of the educational spectrum (that is, teachers with training in both regular and special education), officials of the school system, and sometimes others with expertise in the nature of the disability or the provision of particular services. See 20 U.S.C. § 1414(d)(1)(B).\nIf no consensus emerges from these collective endeavors, the parents may challenge either the school system's handling of the IEP process or the IEP itself. The first step in this adversarial pavane is a due process hearing. See id. § 1415(f). Either party may then seek judicial review of the hearing officer's decision by prosecuting an appeal to a state or federal court. Id. § 1415(i)(2)(A).\nTo determine whether an IEP provides the requisite educational benefit in a given case, some courts will in some circumstances consider only the final version of the IEP that the school system offered during the IEP process. See, e.g., County Sch. Bd. of Henrico v. Z.P., 399 F.3d 298, 306 n. 5 (4th Cir.2005); Knable v. Bexley City Sch. Dist., 238 F.3d 755, 768 (6th Cir.2001). The thinking behind this so-called \"four corners\" rule is that when the IEP process has run its course and the school system has made its last, best offer of an IEP, a reviewing court faced with a substantive challenge will have a clear record of what placements and educational services were offered. See Union Sch. Dist. v. Smith, 15 F.3d 1519, 1526 (9th Cir.1994); see also A.K. v. Alexandria City Sch. Bd., 484 F.3d 672, 682 (4th Cir.2007). This circuit has yet to decide whether or not to adopt the four corners rule and, as we explain below, we have no occasion to consider the advisability of that course today.\n*286 If there is no last, best offerthat is, if the parents have initiated the adversary process in advance of the development of a final IEPit makes very little sense to consider only the latest version of the IEP. This is especially true where the school system has acted expeditiously and the development of a final IEP has been frustrated by the parents' refusal to cooperate fully in the collaborative process. See Loren F. v. Atlanta Indep. Sch. Sys., 349 F.3d 1309, 1312 (11th Cir.2003); MM v. Sch. Dist. of Greenville Cty., 303 F.3d 523, 535 (4th Cir.2002). In such circumstances, it would be wrong to put blinders on a reviewing court and restrict its inquiry to the partially completed IEP. Cf. Roland M., 910 F.2d at 995 (warning that courts ought not to allow parents to prevail when the inadequacy of an IEP was \"created by their own obstructionism\").\nWhen this sort of scenario arises, the court should proceed to consider issues such as the way in which the IEP process unfolded and the relative responsibility of the participants for the breakdown of the process. In exploring such issues, the court is entitled to look at the totality of the circumstances, consider extrinsic evidence, if necessary, and judge the parents' claims accordingly.\n\nB. Incompleteness of the IEP.\n\nIn this case, the district court determined that the October 18 IEP was not \"final\" because the parents had disrupted the IEP process midstream. Five Town, 2007 WL 494994, at *33. Having made that finding, the court proceeded to consider information outside the IEP to assure itself that the School District's partially formulated position was consistent with its responsibilities to A.S. under the IDEA. See id. It concluded that, had the parents continued to cooperate and allowed the School District to fill in the gaps, the result would have been a satisfactory IEP that provided A.S. with a FAPE. See id. at *34.\nThe parents' primary challenge to this conclusion contests the finding that the IEP was incomplete. In that regard, they point out that the School District's special education director, Cindy Foreman, stated during the October 20 PET meeting that the October 18 IEP was \"final.\" Based largely on that utterance, the parents assert that the district court's inquiry should have been restricted as a matter of law to the four corners of the October 18 IEP. The School District rejoins that Foreman's comment cannot be taken literally, that the October 18 IEP was obviously incomplete, and that the district court acted appropriately in looking beyond the four corners of that document. The parents cannot be heard to complain about the incompleteness of the IEP, the School District adds, because their refusal to cooperate in the IEP process obstructed the development of a full-fledged IEP.\nThe district court, like the hearing officer, resolved this contretemps in favor of the School District. As a matter of fact, we discern no clear error in that ruling: on its face, the October 18 IEP was manifestly incomplete. While it contained the main components of an individualized plan, it was missing several subsidiary components (such as the behavioral support and crisis management plans). On this record, the district court's finding that the IEP was incomplete was virtually inevitable.\nForeman's comment that the IEP was \"final\" does not require a different result. Taken in context, that remark does not seem to mean what the parents suggest. Conversation is not trigonometry, and in informal settings spoken language is rarely used in mathematically precise ways. In that connection, we have acknowledged that \"words are like chameleons; they frequently have different shades of meaning *287 depending upon the circumstances.\" United States v. Romain, 393 F.3d 63, 74 (1st Cir.2004).\nHere, the record considered as a whole plainly indicates that while the main components of the IEP (including the School District's decision to accommodate A.S.'s needs in a non-residential setting) may have been final in mid-October, the IEP most, assuredly was not. Given the obvious gaps in the IEP, it would have been absurd for the district court to have treated Foreman's awkward locution as sufficient to transmogrify a partially completed IEP into a fully completed one,[3] Therefore, even in those jurisdictions that have adopted the four corners rule, the rule would not apply.\n\nC. Obstructive Conduct.\n\nThe district court also found, as had the hearing officer, that the parents' precipitous actions had prevented the consummation of the IEP. See Five Town, 2007 WL 494994, at *33. The court found that the parents harbored a fixed purpose: to effect a residential placement for their daughter at the School District's expense, come what may. See id. at *18, *33. Once the parents realized that the School District was focused on a non-residential placement, they essentially lost interest in the IEP process. See id. That finding, which was not clearly erroneous,[4] supported an inference of parental obstruction. See MM, 303 F.3d at 535. In turn, the finding Of obstructionism, coupled with the finding of incompleteness, underbraced the court's decision to consider extrinsic evidence.\nViewed in context, that decision makes perfect sense: while considering extrinsic information in the adequacy calculus may not be appropriate in the mine-run of cases, that course is peculiarly appropriate where, as here, the record reveals with conspicuous clarity that all the participants in the October 12 PET meeting wanted Dr. Miller's input in order to develop a proper crisis plan and positive behavior support plan for A.S. as part and parcel of a final IEP. Neither plan had been formulated when the School District transmitted the October 18 IEP to the parents. The parents cannot ignore these facts, nor expect a reviewing court to blind itself to them. Cf. Doe v. Defendant I, 898 F.2d 1186, 1190 (6th Cir.1990) (approving consideration of extrinsic information when parents, as part of the team, \"had all of the information required,\" even though all the particulars were \"not contained within the four corners of the IEP\").\nFrom this point forward, the court, like the hearing officer, considered whether a public school day placement was appropriate and what benefits a finalized IEP would have provided. See Five Town, 2007 WL 494994, at *34. It supportably concluded that a public school non-residential placement constituted the least restrictive environment. It also concluded that, had the parents allowed the process to run its course, the School District would have developed a sound behavioral support plan and formulated a menu of psychiatric services to be offered to A.S. (which were in line with the goals limned in the proposed IEP). Id. at *34-35. And, finally, it held that because the resultant IEP would have *288 been adequate to afford A.S. a FAPE, the parents'\" claim failed. Id. at *35.\nIn the last analysis, we need not probe too deeply into the adequacy of the IEP. Given the district court's comprehensive factual findings, we can decide this case on a less nuanced ground. We explain briefly.\nCongress deliberately fashioned an interactive process for the development of IEPs. In so doing, it expressly declared that if parents act unreasonably in the course of that process, they may be barred from reimbursement under the IDEA. See 20 U.S.C. § 1412(a)(10)(C)(iii)(III) (providing that \"[t]he cost of reimbursement . . . may be reduced or denied . . . upon a judicial finding of unreasonableness with respect to actions taken by the parents\").\nHere, the School District argues persuasively that the parents' conduct was unreasonable and that this unreasonableness precludes relief. Although the district court drew no conclusions with regard to this provision of the IDEA, we are free to affirm its decision on any alternative ground that is evident from the record. See InterGen N.V. v. Grina, 344 F.3d 134, 141 (1st Cir.2003); United States v. Flemmi, 225 F.3d 78, 91 (1st Cir.2000). Moreover, where the evidence supports a district court's findings of fact, we may realign those findings under a different legal matrix and decide the case on that basis. See, e.g., Wine & Spirits Retailers, Inc. v. Rhode Island, 481 F.3d 1, 7 (1st Cir.2007) (explaining that \"[a] trial court's findings of fact, made in connection with one legal theory, may often be treated as fungible in connection with another [legal theory]\"); Ferrara v. United States, 456 F.3d 278, 281 (1st Cir.2006) (relying on district court's subsidiary findings of fact to decide appeal under a different articulation of the applicable rule of law); see also Societé des Produits Nestle v. Casa Helvetia, Inc., 982 F.2d 633, 642 (1st Cir.1992).\nThis is such a case. The district court supportably found that the parents' actions disrupted the TER process, stalling its consummation and preventing the development of a final IEP. Moreover, the court found, the parents did so despite their knowledge that the School District planned to complete the unfinished portions with the parents' help. Tellingly, the court determined that the cause of the disruption was the parents' single-minded refusal to consider any placement other than a residential one. Five Town, 2007 WL 494994, at *33. Such Boulwarism, whether or not well-intentioned, constitutes an unreasonable approach to the collaborative process envisioned by the IDEA. See Roland M., 910 F.2d at 995. Here, that attitude sufficed to undermine the process.\nTo sum up, the district court found that the October 18 IEP was incomplete and that the parents' unreasonable actions had frustrated the completion of the IEP process.[5] Given these warrantable findings of fact, section 1412(a)(10)(C)(iii)(III) provides a solid ground for resolving the case against the parents. Their unreasonable obstruction of an otherwise promising IEP process fully justifies a denial of reimbursement under the IDEA. See M.S. v. Mullica Tp. Bd. of Educ., 485 F.Supp.2d 555, 568 (D.N.J.2007) (denying reimbursement because parents failed to cooperate in completion of IEP).\n\n\n*289 D. Substantive Adequacy.\n\nThe parents' challenge to the lower court's decision has a further dimension. They assert that the IEP process, whether or not still ongoing, had effectively reached a dead end: in their view, the partially completed IEP includes so many wrong choices that a finding of inadequacy would have been inevitable (and so, completing the IEP process would have been an exercise in futility). The force of this assertion hinges on the parents' insistence that the School District arbitrarily ruled out a residential placement even though such a placement was the only feasible way to provide A.S. with a FAPE.\nThis insistence flies in the teeth of the School District's evidence and the independent evaluator's recommendations. After canvassing the record, we conclude that the need for a residential placement was fairly debatable. Crediting the independent evaluator's views and the School District's testimony, the district courtlike the hearing officerfound that the least restrictive educational environment would have been in a public non-residential placement. Five Town, 2007 WL 494994, at *35. Given the truism that courts should recognize the expertise of educators with respect to the efficacy of educational programs, Rowley, 458 U.S. at 207-08, 102 S.Ct. 3034, we see no clear error in this finding (and, thus, no basis for setting aside the district court's decision).\nThe parents' remaining arguments on this issue need not occupy us for long. The few themes that they spin either mischaracterize the IEP's provisions or seek to have us undertake a de novo balancing of the facts. We are not swayed by the former, nor are we permitted to indulge the latter.\nIn all events, the best that can be said for the parents' position is that the evidence may support competing viewpoints. That circumstance dooms their challenge: we are not at liberty to reject the district court's plausible interpretation of the facts simply because the record also might sustain a conflicting interpretation. See Anderson v. Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (\"Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous.\"). Nor may we reject an adequate public school placement for an optimal private placement. See Rowley, 458 U.S. at 200, 102 S.Ct. 3034; see also Lenn, 998 F.2d at 1086 (explaining that federal law requires school districts to provide a reasonable level of educational benefit to disabled children, not an optimal level).\n\nE. Requests for Relief.\n\nThis essentially ends our inquiry. Although reimbursement of parental expenses for private residential placements sometimes is available under the IDEA, such reimbursement is contingent upon a showing that the parents diligently pursued the provision of appropriate services from the public school system, yet the school system failed to provide those services; and that the private placement is a suitable alternative. See Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993); Burlington Sch. Comm., 471 U.S. at 370, 105 S.Ct. 1996. When the parents make a unilateral choice, they must bear the associated risk: if the conditions for reimbursement are not met, the financial burdens are theirs. Burlington Sch. Comm., 471 U.S. at 373-74, 105 S.Ct. 1996; Roland M., 910 F.2d at 1000.\nThat is precisely what transpired here. The parents made a unilateral choice to abandon the collaborative IEP process without allowing that process to run its course. Thus, the parents are precluded from obtaining reimbursement for the *290 costs of the Chamberlain School placement, see supra Part II(C), and a fortiori, they have not satisfied that prong of the reimbursement analysis.[6]\nThe parents' alternative claim for compensatory education is easily dispatched. Compensatory education is a surrogate for the warranted education that a disabled child may have missed during periods when his IEP was so inappropriate that he was effectively denied a FAPE. See Me. Sch. Admin. Dist. No. 35 v. Mr. & Mrs. R., 321 F.3d 9, 18 (1st Cir.2003). However, compensatory education is not an automatic entitlement but, rather, a discretionary remedy for, nonfeasance or misfeasance in connection with a school system's obligations under the IDEA. See Pihl v. Mass. Dep't of Educ., 9 F.3d 184, 188 (1st Cir.1993); see also G v. Ft. Bragg Dependent Schs., 343 F.3d 295, 309 (4th Cir.2003) (stating that \"[c]ompensatory education involves discretionary . . . relief crafted by a court\" to correct a school district's failure under the Act).\nAs we have explained, the parents have failed to establish any violation by the School District of its duties under the IDEA. Their claim for compensatory education cannot surmount this barrier.\nIII. CONCLUSION\nWe need go no further. For the reasons elucidated above, we uphold the district court's judgment.\nAffirmed.\nNOTES\n[1] The district court appropriately engaged in a bounded, independent review of the hearing officer's decision, see, e.g., Hampton Sch. Dist. v. Dobrowolski, 976 F.2d 48, 52 (1st Cir.1992), giving due deference to the hearing officer's determinations. Because the district court's findings and conclusions were essentially the same as those of the hearing officer, we for the most part eschew separate reference to the hearing officer's decision.\n[2] For example, the October 18 IEP referenced an attached behavior plan but (as the parents knew) no such plan had yet been developed and, thus, none was annexed. This area of the IEP was intentionally left incomplete pending input from Dr. Miller (A.S.'s therapist). The IEP displayed several other inchoate provisions that obviously were meant to be fleshed out during further iterations of the IEP.\n[3] The parents note that the October 12 meeting minutes suggest at one point that a \"completed\" IEP would be sent to the parents. Their reliance on this aspirational phrase suffers from the same shortcomings as their reliance on Foreman's infelicitous use of the word \"final.\"\n[4] To be sure, the parents presented evidence that they made a good-faith effort to visit the Zenith program prior to the last PET meeting. But under the applicable standard of review, the district court was entitled to choose among conflicting inferences suggested by the evidence. See Lenn, 998 F.2d at 1087.\n[5] The parents' argument that the School District engaged in a \"bait and switch\" tactic by calling the IEP \"final\" and then backtracking at the due process hearing, Appellants' Reply Br. at 6, is meritless. As we have said, there is substantial evidence in the record that the School District expressed the need for further development of the IEP prior to the time of the parents' unilateral decision to relocate A.S. to a private residential placement.\n[6] This result obtains whether or not the Chamberlain School offered a desirable placement for the child (a matter on which we take no view).\n\n",
"ocr": false,
"opinion_id": 203107
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] |
First Circuit
|
Court of Appeals for the First Circuit
|
F
|
USA, Federal
|
1,804,454 |
Levi
| 1997-09-30 | false |
united-states-v-iron-mountain-mines-inc
| null |
United States v. Iron Mountain Mines, Inc.
|
UNITED STATES of America, Plaintiff, v. IRON MOUNTAIN MINES, INC., Et Al., Defendants; STATE OF CALIFORNIA, Plaintiff, v. IRON MOUNTAIN MINES, INC., Et Al., Defendants. and Related Cross-, Counter-, and Third-Party Claims
|
Paul B. Galvani, Ropes and Gray, Boston, MA, James W. Matthews, Ropes and Gray, Boston, MA, for Rhone-Poulenc Inc. . -, Thomas H. Hannigan Jr., Ropes and Gray, Boston, MA, Thomas G. Redmon, Wilke Fleury Hoffelt Gould and Birney, Sacramento, CA, for Rhone-Poulenc Basic Chemicals Co., Michael Brian Hingerty, U.S. Environmental Protection Agency, San Francisco, CA, David B. Glazer, U.S. Department pf Justice, Environmental Enforcement Section, San Francisco, CA, Yoshinori H. T. Himel, U.S. Attorney, Sacramento, CA, Martin F. McDermott, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, for U.S., Margarita Padilla, California State Attorney General, Oakland, CA, Sara J. Russell, Attorney General’s Office of the State of California, Oakland, CA, for State of California.
| null | null | null | null | null | null | null | null | null | null | 2 |
Published
| null |
<parties id="b1320-8">
UNITED STATES of America, Plaintiff, v. IRON MOUNTAIN MINES, INC., et al., Defendants. STATE OF CALIFORNIA, Plaintiff, v. IRON MOUNTAIN MINES, INC., et al., Defendants. And Related Cross-, Counter-, and Third-Party Claims.
</parties><br><docketnumber id="b1320-15">
No. Civ-S-91-768 DFL JFM.
</docketnumber><br><court id="b1320-16">
United States District Court, E.D. California.
</court><br><decisiondate id="b1320-18">
Sept. 30, 1997.
</decisiondate><br><attorneys id="b1321-6">
<span citation-index="1" class="star-pagination" label="1245">
*1245
</span>
Paul B. Galvani, Ropes and Gray, Boston, MA, James W. Matthews, Ropes and Gray, Boston, MA, for Rhone-Poulenc Inc. . -
</attorneys><br><attorneys id="b1321-7">
Thomas H. Hannigan Jr., Ropes and Gray, Boston, MA, Thomas G. Redmon, Wilke Fleury Hoffelt Gould and Birney, Sacramento, CA, for Rhone-Poulenc Basic Chemicals Co.
</attorneys><br><attorneys id="b1321-8">
Michael Brian Hingerty, U.S. Environmental Protection Agency, San Francisco, CA, David B. Glazer, U.S. Department pf Justice, Environmental Enforcement Section, San Francisco, CA, Yoshinori H. T. Himel, U.S. Attorney, Sacramento, CA, Martin F. McDermott, U.S. Department of Justice, Environment
<em>
&
</em>
Natural Resources Division, Washington, DC, for U.S.
</attorneys><br><attorneys id="b1321-9">
Margarita Padilla, California State Attorney General, Oakland, CA, Sara J. Russell, Attorney General’s Office of the State of California, Oakland, CA, for State of California.
</attorneys>
|
[
"987 F. Supp. 1244"
] |
[
{
"author_str": "Levi",
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": null,
"author_id": 1919,
"opinion_text": "\n987 F. Supp. 1244 (1997)\nUNITED STATES of America, Plaintiff,\nv.\nIRON MOUNTAIN MINES, INC., et al., Defendants.\nSTATE OF CALIFORNIA, Plaintiff,\nv.\nIRON MOUNTAIN MINES, INC., et al., Defendants.\nAnd Related Cross-, Counter-, and Third-Party Claims.\nNo. Civ-S-91-768 DFL JFM.\nUnited States District Court, E.D. California.\nSeptember 30, 1997.\n*1245 Paul B. Galvani, Ropes and Gray, Boston, MA, James W. Matthews, Ropes and Gray, Boston, MA, for Rhone-Poulenc Inc.\nThomas H. Hannigan Jr., Ropes and Gray, Boston, MA, Thomas G. Redmon, Wilke Fleury Hoffelt Gould and Birney, Sacramento, CA, for Rhone-Poulenc Basic Chemicals Co.\nMichael Brian Hingerty, U.S. Environmental Protection Agency, San Francisco, CA, David B. Glazer, U.S. Department of Justice, Environmental Enforcement Section, San Francisco, CA, Yoshinori H. T. Himel, U.S. Attorney, Sacramento, CA, Martin F. McDermott, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, for U.S.\nMargarita Padilla, California State Attorney General, Oakland, CA, Sara J. Russell, Attorney General's Office of the State of California, Oakland, CA, for State of California.\n\nMEMORANDUM OF OPINION AND ORDER\nLEVI, District Judge.\nRhône-Poulenc, Inc. moves for partial adjudication as to two issues: (1) whether EPA is prohibited by § 104(a)(3)(A) of CERCLA, 42 U.S.C. § 9604(a)(3)(A), from responding to releases of naturally occurring metals; and (2) whether EPA bears the burden of proving that it is not responding to such releases.[1] The United States, joined by the State of California, opposes Rhône-Poulenc's motion and cross moves for summary judgment on the same issues.\n\nI.\nSection 9604(a)(3)(A) of CERCLA prohibits the EPA from ordering a removal or remedial action in response to naturally occurring substances:\n[t]he President [through EPA] shall not provide for a removal or remedial action under this section in response to a release or threat of release ... of a naturally occurring substance in its unaltered form, or altered solely through naturally occurring processes or phenomena, from a location where it is naturally found....\n42 U.S.C. § 9604(a)(3)(A). According to Rhône-Poulenc, some of the removal or remedial actions ordered by EPA will affect naturally occurring substances.\nIn 1992, the United States moved for partial summary judgment to eliminate many of Rhône-Poulenc's affirmative defenses. In September 1992, Judge Schwartz issued an opinion, United States v. Iron Mountain Mines, 812 F. Supp. 1528, 1548-49 (E.D.Cal.1992), granting the United States' motion as to Rhône-Poulenc's Eleventh Defense in which Rhône-Poulenc asserted a defense based upon § 9604(a)(3)(A).[2] The United States argues that under the law of *1246 the case doctrine Rhône-Poulenc now should be precluded from relitigating whether EPA is prohibited from responding to releases of naturally occurring substances and whether EPA bears the burden of proving that it is not responding to such releases.\nUnder the law of the case doctrine, a court is generally precluded from reconsidering an issue that has already been decided by the same court, or a higher court, in the identical case. The doctrine is not a limitation on a tribunal's power, but rather a guide to discretion. A court may have discretion to depart from the law of the case where: (1) the first decision was clearly erroneous; (2) an intervening change in the law has occurred; (3) the evidence on [reconsideration] is substantially different; (4) other changed circumstances exist; or (5) a manifest injustice would otherwise result. Failure to apply the doctrine of the law of the case absent one of the requisite conditions constitutes an abuse of discretion.\nUnited States v. Alexander, 106 F.3d 874, 876 (9th Cir.1997) (citations and internal quotations omitted); see Fed.R.Civ.Pro. 54(b) (motion for reconsideration); Local Rule 78-230(k) (requiring motion for reconsideration to set forth \"what new or different facts or circumstances are claimed to exist\").\nRhône-Poulenc counters that Judge Schwartz's 1992 opinion only addressed whether judgment should be granted as to an affirmative defense based upon § 9604(a)(3)(A). Rhône-Poulenc contends that Judge Schwartz did not determine whether the specific remedies EPA has selected violate § 9604(a)(3)(A). But the law of the case doctrine applies not only to issues decided explicitly in an earlier opinion, but also to issues decided by necessary implication. Leslie Salt Co. v. United States, 55 F.3d 1388, 1393 (9th Cir.1995). Moreover, so long as the issue was decided by necessary implication, it does not matter if the treatment of the issue was summary or somewhat ambiguous. Id. at 1392 (citations omitted); but see Milgard Tempering Inc. v. Selas Corp. of Am., 902 F.2d 703, 715-14 (9th Cir.1990) (the law of the case doctrine does not apply where the earlier opinion's pronouncement was dicta).\nIn his 1992 opinion, Judge Schwartz concluded that § 9604(a)(3)(A) \"permits response to release of any natural substance released in altered form, or to release of a substance not altered by natural process.\" Iron Mountain Mines, 812 F.Supp. at 1548. He also concluded that \"mining constitutes an artificial alteration rather than a naturally occurring process or phenomenon.\" Id. Thus, so long as the specific remedies selected by EPA address releases that are artificially altered by mining, Judge Schwartz's 1992 opinion controls. See United States v. Kramer, 913 F. Supp. 848, 854 (D.N.J.1995) (finding that an earlier opinion striking an affirmative defense also \"intended to strike defendants' arguments as defenses to cost recoverability\").\nTo date, EPA has issued three Records of Decision regarding Iron Mountain Mine. A Record of Decision (\"ROD\") is the vehicle by which EPA selects remedies to be implemented at a particular site. EPA issued ROD 1 in 1986. ROD 1 selected the construction of a cap over a portion of Iron Mountain Mine to reduce the release of heavy metals from areas disturbed by mining. Sugarek Decl., ¶ 16. It also selected a number of stream diversions to reduce the contamination coming into the relatively clean water in upper Slickrock and Upper Spring Creeks. Sugarek Decl., ¶ 16. ROD 2, issued in 1992, selected the construction of a treatment plant to neutralize the discharges coming from the underground mines through the Richmond and Lawson Portals. Sugarek Decl., ¶ 19. ROD 2 also selected the capping of seven mining waste piles that were eroding and discharging metals into Boulder Creek. Sugarek Decl., ¶ 19. Finally, ROD 3, issued in 1993, selected the construction of a treatment plant to neutralize the discharges coming from underground mines through the Old / No. 8 Mine Seep. Sugarek Decl., ¶ 37.[3] Thus, the United *1247 States would appear correct in offering the following syllogism: all of the RODs issued to date have specifically targeted contamination from the mine workings and mining waste piles; Judge Schwartz determined that releases from mining activity are not naturally occurring; therefore, the law of the case doctrine precludes Rhône-Poulenc from relitigating the issue of whether the remedies in RODs through 3 violate § 9604(a)(3)(A).\nIn response, Rhône-Poulenc argues that the law of the case doctrine should yield in light of additional evidence developed during discovery. Judge Schwartz' opinion stated that in 1992 Rhône-Poulenc failed to present any evidence showing that the releases to which EPA was responding were naturally occurring. Iron Mountain Mines, 812 F.Supp. at 1548-9. Rhône-Poulenc now is armed with new evidence in particular a report prepared by its own expert, Shepherd Miller, Inc. (\"SMI\"). R-P Exh. O. SMI's report attempts to quantify the amount of natural background metals that existed in Boulder Creek and Slickrock Creek around Iron Mountain prior to mining. It also tries to evaluate the percentage of current metal loads in those creeks accounted for by naturally occurring metals. SMI estimates that between 34 and 69 percent of the copper load and between 23 and 36 percent of the zinc load in Slickrock Creek are caused by natural sources, and that between 63 and 100 percent of the copper load and 17 and 23 percent of the zinc load in Boulder Creek are caused by natural sources. R-P Exh. O at iii. These figures far exceed the United States' informal estimates. For example, the United States calculates that pre-mining copper discharges amounted to substantially less than one percent of the post-mining copper discharges. See Sugarek Decl., ¶ 31.\nHowever, this new evidence, even if accurate, does not affect the syllogism stated above. Section 9604(a)(3)(A) provides that EPA \"shall not provide for a removal or remedial action ... in response to a release or threat of release ... of a naturally occurring substance....\" 42 U.S.C. § 9604(a)(3)(A) (emphasis added). SMI's report does not suggest that the remedies EPA has selected up to this point are \"in response to\" releases of a naturally occurring substance such that the only reason EPA called for the remedies was to reduce metal levels created by natural conditions at Iron Mountain or that the remedies would have been any different had naturally occurring substances been excluded from the planning process for the ROD. This can be stated with assurance because each of the three RODs is narrowly focused on a particular source of contamination clearly generated by mining activity at Iron Mountain Mine. As such, those remedies are \"in response to\" releases affected by mining. The SMI report discusses metal levels in Slickrock Creek and Boulder Creek generally. It does not focus on the releases at the site of the cap in ROD 1, the Richmond and Lawson Portals addressed in ROD 2, or the Old / No. 8 Mine Seep addressed in ROD 3. Moreover, SMI confirms that a substantial portion of the contamination at Iron Mountain is man-made.\nIt may well be the case that the remedies selected in RODs 1, 2, and 3 will have some effect on naturally occurring metals, whether such metals make up a minute but measurable portion of the flows or a more substantial percentage. Even so, *1248 § 9604(a)(3)(A) is not implicated merely because a response to mining activity will also have the side benefit of catching naturally occurring substances. Only if the \"removal or remedial action\" is \"in response\" to a release of naturally occurring substances will the statute bar EPA's removal or remedial order. See United States v. Ottati & Goss, 900 F.2d 429, 437-8 (1st Cir.1990); Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 670-71 (5th Cir.1989) United States v. Davis, 794 F. Supp. 67, 69 (D.R.I.1992); Mid Valley Bank v. North Valley Bank, 764 F. Supp. 1377, 1385-86 (E.D.Cal.1991). The SMI report does not establish that any removal or remedial action in RODs 1, 2, or 3 was in response to naturally occurring substances.\nRhône-Poulenc contends that it is not its duty to establish that EPA has responded to natural releases. It argues that it is the EPA's burden to prove that it has not so responded. Under this approach, a responsible party could sit mum during the administrative process, wait until a remedy had been chosen and implemented, and then put EPA to its proof that it has not responded to a release of natural substances. Perhaps Rhône-Poulenc would agree that it must at least come forward with some evidence suggesting that there are natural releases. But apparently it would not concede that it must do so during the administrative process before a remedy is selected.\nThe court holds that Rhône-Poulenc bears the burden of demonstrating that EPA has responded to naturally occurring substances and that Rhône-Poulenc must discharge this burden by pointing to evidence in the administrative record. Thus, the SMI report, which was not part of the record of RODs 1, 2, or 3 may not be considered at this juncture. This holding is consistent with Judge Schwartz prior ruling. After noting that the United States had put forward evidence that the releases from Iron Mountain Mine exceeded naturally occurring metal levels, Judge Schwartz placed the burden on Rhône-Poulenc to rebut the United States' evidence and to prove that the injury caused by the mining-related contamination is divisible from whatever injury might exist from the naturally occurring metals. Iron Mountain Mines, 812 F.Supp. at 1548 (citing In re Acushnet River & New Bedford Harbor, 722 F. Supp. 893, 897 (D.Ma.1989)). The situation is still the same. It is undisputed that at least a portion of the contamination at Iron Mountain Mine was caused by mining. And RODs 1, 2, and 3 target the areas directly affected by the mining. Thus, at least as to the remedies selected in RODs 1, 2, and 3, the United States has satisfied any burden it might have of showing that its responses were not directed to naturally occurring substances. The burden now falls on Rhône-Poulenc to establish what portion, if any, of its liability should be negated because the response was made more expensive by the inclusion in the remedy of contamination that was naturally occurring.\nPlacing the burden on Rhône-Poulenc is also consistent with the structure of CERCLA. Under CERCLA, EPA has broad remedial powers, and the court's review is quite limited. The court reviews EPA's remedy selection to ensure that it was not \"arbitrary and capricious or otherwise not in accordance with law.\" 42 U.S.C. § 9613(j)(2). A remedy will not be \"in accordance with law\" to the extent that it violates § 9604(a)(3)(A) by being \"in response to a release ... of a naturally occurring substance. ...\" Just as Rhône-Poulenc has the burden of demonstrating that EPA's remedy selection was arbitrary and capricious, it also bears the burden of demonstrating that the chosen remedy was not in accordance with law because it was in response to naturally occurring substances.[4] Alternatively, the claim that EPA has exceeded its authority may be viewed as an affirmative defense as to which Rhône-Poulenc bears the burden. See United States v. Freter, 31 F.3d 783, 788-89 (9th Cir.1994) (defendant bears the *1249 burden of proving that its liability is limited because some portion of the releases fall within the \"federally permitted release exception\" established by 42 U.S.C. § 9603(a)(3));[5]see also Nixon-Egli Equip. Co. v. John Alexander Co., 949 F. Supp. 1435, 1442-43 (C.D.Cal.1996) (citing EEOC v. Kamehameha Schools/Bishop Estate, 990 F.2d 458, 459 (9th Cir.1993)) (defendant bears the burden of proving it is not liable based on the \"petroleum exclusion\" in § 101(14));[6]In re Acushnet River & New Bedford Harbor Proceedings, 716 F. Supp. 676, 687 (D.Mass.1989) (addressing § 9607(f) which limits relief to prospective damages); United States v. Maryland Bank & Trust Co., 632 F. Supp. 573, 578 (D.Md.1986) (addressing the exception to the definition of \"owner or operator\" for \"a person, who, without participating in the management of a vessel or facility, holds indicia of ownership primarily to protect his security interest in the ... facility\" under § 9601(20)(A)); United States v. Morrison-Quirk Grain Corp., 1990 WL 482139 at * 2-4 (D.Neb.) (addressing pesticide exception under § 9607(i)).\nFurthermore, Rhône-Poulenc must meet its burden by relying on the administrative record.[7] As discussed above, the court's role is limited. The standard for judicial review of EPA remedy selection is whether the response action was \"arbitrary and capricious or otherwise not in accordance with law.\" 42 U.S.C. § 9613(j)(2). And \"judicial review of any issues concerning the adequacy of any response action taken or ordered by [EPA] shall be limited to the administrative record\" unless general principles of administrative law demand that the record be supplemented.[8] 42 U.S.C. § 9613(j)(1). Rhône-Poulenc does not demonstrate that it was barred from submitting information concerning naturally occurring substances during the remedy selection phases of RODs 1, 2, or 3 such that it should be permitted to supplement the administrative record for these RODs at this late date. Without the SMI report, Rhône-Poulenc is back where it was in 1992 before Judge Schwartz. It points to no evidence in the administrative record that would meet its burden of demonstrating that any of RODs 1, 2, or 3 were in any measure \"in response to\" naturally occurring substances.\n\nIII.\nRhône-Poulenc's motion for partial adjudication is DENIED. The United States' cross-motion is GRANTED.\nIT IS SO ORDERED.\nNOTES\n[1] The parties have styled this motion simply as a motion with respect to \"naturally occurring\" substances.\n[2] The Eleventh Defense stated: \"[i]f Rhône-Poulenc is liable for any of [the United States'] response costs, which Rhône-Poulenc denies, Rhône-Poulenc is not liable for response costs incurred in responding to a release or threatened release of a naturally occurring substance in its unaltered form, or altered solely through naturally occurring processes or phenomena, from Iron Mountain where it is naturally found, since EPA has no authority to respond to such a release or threatened release.\"\n[3] EPA is now in the process of developing ROD 4. In its proposed plan for ROD 4, which was issued in May 1996, EPA recommended the selection of Slickrock Creek Dam as a remedy. Sugarek Decl., ¶ 39. It is envisioned that Slickrock Creek Dam will \"capture and treat area-wide discharges from the Slickrock Creek watershed,\" including discharges from \"excavated, rubblized, and collapsed underground mine workings, sidehill and open pit mines, waste piles, slides, seeps, old processing facilities, and other areas disturbed by mining activity.\" Sugarek Decl., ¶ 40. Because Slickrock Creek Dam will capture and treat \"area-wide\" discharges, the Dam may also catch some flows of heavy metals that are naturally occurring. Takata Dep. (Vol. I) at 120:19-121:9.\n\nThe court, however, is barred from now considering ROD 4 by § 113(h) of CERCLA, referred to as the \"pre-enforcement review bar.\" Section 113(h) generally provides that federal courts do not have jurisdiction to review preliminary challenges to EPA's remedy selections. In particular, courts often are prohibited from enjoining EPA remedies that are ongoing. E.g. Employers Ins. of Wausau v. Browner, 52 F.3d 656 (7th Cir.1995); but see United States v. Princeton Gamma-Tech, Inc., 31 F.3d 138, (3rd Cir.1994) (holding that a federal court can review, and possibly enjoin, an ongoing EPA remedy where there is \"a bona fide allegation of irreparable injury to public health or the environment\"). In this case where EPA has yet to definitively select the remedies that will be included in ROD 4, § 113(h) prevents the court from considering ROD 4.\n[4] Rhône-Poulenc argues that § 104(a)(3)(A) is a jurisdictional limit on EPA's authority and that, as a result, the United States bears the burden of proof. This argument might be more persuasive if there was a dispute over whether any of the contamination at Iron Mountain was caused by the mining. See Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 670-71 (5th Cir.1989) (the government can satisfy its burden by showing that any release violates an applicable state or federal standard); see also United States v. Louisiana-Pacific Corp., CIV-S-89-0871 at 21 (E.D.Cal. 1994).\n[5] Rhône-Poulenc argues that Freter supports its view that EPA has the burden of proving that the releases at Iron Mountain are not naturally occurring. Rhône-Poulenc cites to footnote 6, which provides that the defendant only has the initial burden of production, but that the government ultimately has the burden of persuasion. Freter, 31 F.3d at 789 n. 6 (citations omitted). Freter, however, was a criminal prosecution. Civil cases addressing the federally permitted exception have found that the defendant has the ultimate burden of proving the applicability of the exception, not simply the initial burden of production. See In re Acushnet River & New Bedford Harbor, 722 F. Supp. 893, 901 (D.Mass. 1989) (defendant must prove that it falls within the federally permitted release exception established by 42 U.S.C. § 9607(j)); accord Lincoln Properties, Ltd. v. Higgins, 1993 WL 217429 (E.D.Cal.).\n[6] Rhône-Poulenc cites an unpublished case holding that United States had the burden of proving that the petroleum exclusion does not apply. United States v. Poly-Carb, Inc., CV-N-91-360 at 15 (D.Nev.1996). That case is contrary to all other authority. Nixon-Egli, 949 F.Supp. at 1442-43; accord Ekotek Site PRP Comm. v. Self, 932 F. Supp. 1319, 1322-24 (D.Utah 1996); Foster v. United States, 926 F. Supp. 199, 205-06 (D.D.C.1996); Dartron Corp. v. Uniroyal Chemical Co., Inc., 917 F. Supp. 1173, 1183-84 (N.D.Ohio 1996).\n[7] Rhône-Poulenc argues that the United States is precluded from adding issues to be resolved by this motion for summary judgment. Rhône-Poulenc Opp'n & Reply at 3. But a party opposing a motion for summary judgment may make any counter-motion that the party desires so long as it is related to the general subject matter of the original motion. See Local Rule 78-230(e).\n[8] Again, the result might be different if it were disputed whether any of the contamination was man-made. Under CERCLA, whether a party is liable at all is tried de novo. See generally David W. Tundermann & Michael J. Tomko, \"Access to EPA Information in CERCLA Enforcement Actions,\" 2 Nat. Resources & Env't 24, 25 (Spring 1994).\n\n",
"ocr": false,
"opinion_id": 1804454
}
] |
E.D. California
|
District Court, E.D. California
|
FD
|
California, CA
|
203,884 |
Howard, Selya, and Hansen
| 2009-06-24 | false |
united-states-v-croto
|
Croto
|
United States v. Croto
|
UNITED STATES of America, Appellee, v. Sean CROTO, Defendant, Appellant
|
Robert J. Ruffner, on brief, for appellant., Margaret D. McGaughey, Appellate Chief, and Paula D. Silsby, United States Attorney, on brief, for appellee.
| null | null | null | null | null | null | null |
Submitted May 5, 2009.
| null | null | 2 |
Published
| null |
<parties id="b37-13">
UNITED STATES of America, Appellee, v. Sean CROTO, Defendant, Appellant.
</parties><docketnumber id="Ab">
No. 08-1856.
</docketnumber><br><court id="b37-16">
United States Court of Appeals, First Circuit.
</court><br><otherdate id="b37-18">
Submitted May 5, 2009.
</otherdate><br><decisiondate id="b37-19">
Decided June 24, 2009.
</decisiondate><br><attorneys id="b38-8">
<span citation-index="1" class="star-pagination" label="12">
*12
</span>
Robert J. Ruffner, on brief, for appellant.
</attorneys><br><attorneys id="b38-9">
Margaret D. McGaughey, Appellate Chief, and Paula D. Silsby, United States Attorney, on brief, for appellee.
</attorneys><br><judges id="b38-10">
Before HOWARD, SELYA, and HANSEN,
<a class="footnote" href="#fn*" id="fn*_ref">
*
</a>
Circuit Judges.
</judges><div class="footnotes"><div class="footnote" id="fn*" label="*">
<a class="footnote" href="#fn*_ref">
*
</a>
<p id="b38-15">
Of the Eighth Circuit, sitting by designation.
</p>
</div></div>
|
[
"570 F.3d 11"
] |
[
{
"author_str": "Hansen",
"per_curiam": false,
"type": "010combined",
"page_count": 9,
"download_url": "http://www.ca1.uscourts.gov/pdf.opinions/08-1856P-01A.pdf",
"author_id": null,
"opinion_text": "\n570 F.3d 11 (2009)\nUNITED STATES of America, Appellee,\nv.\nSean CROTO, Defendant, Appellant.\nNo. 08-1856.\nUnited States Court of Appeals, First Circuit.\nSubmitted May 5, 2009.\nDecided June 24, 2009.\n*12 Robert J. Ruffner, on brief, for appellant.\nMargaret D. McGaughey, Appellate Chief, and Paula D. Silsby, United States Attorney, on brief, for appellee.\nBefore HOWARD, SELYA, and HANSEN,[*] Circuit Judges.\nHANSEN, Circuit Judge.\nSean Croto conditionally pleaded guilty to possessing firearms after having been convicted of a felony in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He now appeals the denial of his motion to suppress evidence obtained pursuant to a search warrant specifically, the guns that formed the basis for his conviction asserting that the warrant was not supported by probable cause. We affirm.\n\nI.\nOn February 24, 2007, Michael Berube and Todd Sargent contacted the Biddeford, Maine, Police Department to make a complaint about Sean Croto. Two Biddeford police officers were dispatched to a residence to take the complaint. Sargent and Berube told the officers that they were acquaintances of Sean Croto, identified his address as 81 Foss Street, second floor, and gave the officers his birth date. They told the officers that Croto had been telling them for a few months about his \"anarchy plans\" to blow up the Biddeford Police Department with Molotov cocktails and to kidnap the city's mayor. Sargent explained that Croto had outlined the plans again at Croto's apartment earlier that day and had asked Sargent to join in the action, but Sargent told Croto he wanted nothing to do with it. Croto had also shown Sargent a .22 pistol and a rifle. Sargent told the officers that Croto kept the loaded .22 pistol with a clip in his hunting vest and that he kept his guns next to his desk in the living room. Sargent *13 also told the officers that he had seen guns in Croto's bedroom. Berube told the officers that he had visited Croto at his prior residence located at 42 Sullivan Street where he saw all kinds of guns and drugs.\nDetective Richard Gagne conducted separate recorded interviews with Berube and Sargent, and he asked each of them why they had waited so long to report Croto's anarchy plans. Sargent responded that he did not believe Croto would carry out his plans, but he was fed up with him selling drugs to young people. Berube responded that he was fed up with Croto selling marijuana to his friends and that he was concerned that Croto would carry out his plans to blow up the police station.\nDetective Gagne investigated Croto's criminal history, verifying that his birth date matched the date provided by Berube and Sargent. He discovered that Croto had been convicted of aggravated trafficking of scheduled drugs and of aggravated assault, both of which were state felony convictions. Detective Gagne sought a search warrant on February 25, 2007, authorizing the search of a particularly described apartment on the second floor of 81 Foss Street. Justice Thomas Humphrey of the Maine Superior Court issued the search warrant on February 26, 2007, and Biddeford police officers executed it the same day. The officers seized ammunition and three firearms a .22 caliber pistol, a 12-gauge shotgun, and a Winchester 30-30 lever action rifle.\nCroto was charged with being a felon in possession of three firearms, and he filed a motion to suppress the firearms seized during the February 26, 2007 warranted search.[1] The magistrate judge denied Croto's request for a Franks[2] hearing and recommended that the district court deny the motion to suppress. The magistrate judge concluded that Detective Gagne's affidavit provided probable cause to support the warrant, and even if it did not, that the Leon[3] good faith exception applied. The district court adopted the magistrate judge's recommendation, and thereafter Croto entered a conditional guilty plea to the charges, reserving the right to appeal the denial of his motion to suppress.\n\nII.\n\"In reviewing the district court's denial of a defendant's motion to suppress, we review the district court's finding of fact for clear error and its legal determinations, including whether a particular set of facts constitutes probable cause, de novo.\" United States v. Rodrigue, 560 F.3d 29, 32 (1st Cir.2009) (internal marks omitted). Croto is entitled to relief only if \"no reasonable view of the evidence supports\" the district court's denial of his motion. United States v. Belton, 520 F.3d 80, 82 (1st Cir.), cert. denied, ___ U.S. ___, 129 S.Ct. 286, 172 L.Ed.2d 210 (2008). We give \"great deference\" to the issuance of a search warrant. United States v. Scalia, 993 F.2d 984, 986 (1st Cir.1993) (internal marks omitted). Our inquiry is limited to verifying that a substantial basis existed to *14 support the issuing judge's \"common-sense determination that, given all the circumstances set forth in the affidavit, including the veracity and basis of knowledge of persons supplying hearsay information, there was a fair probability that contraband or evidence of a crime would be found in a particular place.\" Id. (internal marks and emphasis omitted).\nCroto takes issue with the veracity of the individuals providing the information contained in Detective Gagne's affidavit but does not dispute that those facts, if credible, supply the necessary quantum of probable cause to support the issuance of a search warrant. Croto is correct to point out that most of the information in Detective Gagne's affidavit was supplied by Berube and Sargent rather than firsthand information obtained by law enforcement personnel. Detective Gagne's affidavit repeated the information provided by Berube and Sargent to the police officers who took their original statements, including information about Croto's anarchy plans and Sargent's statements that Croto had discussed the plans that same day and had shown Sargent two firearms at his apartment. The two citizen informants were named in the affidavit. The affidavit also described Detective Gagne's own investigation as verifying Croto's date of birth, address, and his convictions for felony crimes.\nThere is nothing wrong with a police officer relying on information provided by others to support the warrant application he makes, as long as the affidavit provided to the court establishes a sufficient basis for crediting the informant's reliability and his basis for knowledge of the facts supplied. See United States v. McFarlane, 491 F.3d 53, 57 (1st Cir.2007) (face-to-face encounter with informant enhances officer's ability to judge previously unknown informant's veracity and provided sufficient basis to credit the informant's statement). Croto relies almost exclusively on case law dealing with information provided by confidential informants who are not identified in the affidavit provided to the issuing judge and who often provide information to police officers in exchange for leniency related to their own criminal conduct. Here, Berube and Sargent identified themselves to the officers, which in itself bolsters their credibility because it opens them up for charges related to making a false report. See United States v. Brown, 500 F.3d 48, 54 (1st Cir.2007) (\"Since he was known to the police, he could have been held accountable if his information proved inaccurate or false.\"). Further, Berube and Sargent willingly provided the information and received nothing in return; they were concerned citizens reporting potential criminal activity, whose stories may be more easily accepted than those of confidential informants whose motivations make their stories more suspect. See Scalia, 993 F.2d at 987 (\"In the absence of a prior record of reliability, we have recognized that, where the informant was `not a professional but a private citizen with no known criminal record or other criminal contacts, who came forward on his own, the informant's story may be more easily accepted ....'\") (quoting United States v. Campbell, 732 F.2d 1017, 1019 (1st Cir. 1984) (some internal marks omitted)).\nThe details of the information, as well as the timeliness of it, also lend to the credibility of the information provided by Berube and Sargent. See United States v. Strother, 318 F.3d 64, 68 (1st Cir.2003) (noting that confidential informant's reliability was bolstered by the level of detail he provided about the suspect sufficient to overcome the informant's lack of a track record of providing accurate information). Detective Gagne's affidavit relayed that *15 Sargent gave explicit details about the guns that Croto showed him, describing the rifle as an \"old fashion[ed] kind\" with a lever and a large brass bullet, as well as their location inside Croto's apartment, stating that the .22 pistol was kept loaded with a clip in Croto's hunting vest and the guns were kept next to a desk in the living room. The affidavit also informed the issuing judge that Sargent had seen the guns in Croto's apartment on the same day Sargent reported it to the officers and Detective Gagne completed the affidavit. Finally, Berube's statements that Croto told him about his plan to blow up the police station and kidnap the mayor and that Berube had seen numerous firearms in Croto's former residence corroborate Sargent's more detailed recitation. See United States v. Schaefer, 87 F.3d 562, 566 (1st Cir.1996) (\"[C]onsistency between the reports of two independent informants helps to validate both accounts.\"). Considering the totality of the circumstances bearing on the named informants' \"veracity, reliability, and basis of knowledge,\" United States v. Romain, 393 F.3d 63, 71 (1st Cir.2004), cert. denied, 545 U.S. 1122, 125 S.Ct. 2924, 162 L.Ed.2d 308 (2005), we conclude that the affidavit provided sufficient probable cause to support issuance of the search warrant.\nCroto argues that the affidavit was misleading to the extent that it omitted Berube's and Sargent's statements revealing their bias against Croto. Croto argues that had the statements been included in the affidavit, they would have sufficiently undermined the informants' credibility so as to render the affidavit inadequate to support a finding of probable cause. Although Croto sought a Franks hearing in the district court, he does not challenge the denial of a hearing on appeal. He addresses the omitted information on appeal only as it bears on the probable cause determination.\nWe agree with the district court that even if Detective Gagne had included Berube's and Sargent's statements in his affidavit about why they delayed in contacting the police concerning Croto's anarchy plan, the issuing judge still would have found probable cause to issue the warrant. The district court concluded that the omitted information did not minimize or alter the detailed facts set out in the affidavit that provided probable cause to believe that Croto was a convicted felon in possession of firearms. Regardless of how long the two informants had known about Croto's alleged anarchy plan, Sargent contacted the police on the very day he saw firearms in Croto's apartment, establishing probable cause that police officers would find evidence of a crime at the place to be searched. The district court further concluded that the omitted facts provided a plausible explanation for why Berube and Sargent, as concerned citizens, waited to contact the police namely, that they had had enough of observing Croto deal drugs to young people and of listening to his anarchy plans that they decided to do something about it. We agree with the district court that the omitted information would not have changed the issuing judge's probable cause determination.\n\nIII.\nThe district court's denial of Croto's suppression motion is affirmed.\nNOTES\n[*] Of the Eighth Circuit, sitting by designation.\n[1] Croto was also charged with, and he pleaded guilty to, conspiring to possess with intent to distribute and distributing marijuana, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D), and 846, and using and carrying a firearm during and in relation to a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A). Croto's motion to suppress and his briefs in this court address themselves only to the guns seized during the search and the related conviction for being a felon in possession of a firearm. The other convictions are not at issue in this appeal.\n[2] Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).\n[3] United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).\n\n",
"ocr": false,
"opinion_id": 203884
}
] |
First Circuit
|
Court of Appeals for the First Circuit
|
F
|
USA, Federal
|
2,331,237 | null | 2011-11-01 | false |
state-v-sweany
|
Sweany
|
State v. Sweany
| null | null | null | null | null | null | null | null | null | null | null | null | 0 |
Published
| null | null |
[
"268 P.3d 224",
"172 Wash. 2d 1020"
] |
[
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": null,
"author_id": null,
"opinion_text": "\n268 P.3d 224 (2011)\n172 Wash. 2d 1020\nSTATE\nv.\nSWEANY.\nNo. 86270-2.\nSupreme Court of Washington, Department I.\nNovember 1, 2011.\nDisposition of Petition for Review Granted.\n",
"ocr": false,
"opinion_id": 2331237
}
] |
Washington Supreme Court
|
Washington Supreme Court
|
S
|
Washington, WA
|
490,157 |
Goldberg, Politz, Rubin
| 1987-07-20 | false |
james-ray-young-v-james-a-lynaugh-interim-director-texas-department-of
| null |
James Ray Young v. James A. Lynaugh, Interim Director Texas Department of Corrections
|
James Ray YOUNG, Petitioner-Appellee, v. James A. LYNAUGH, Interim Director Texas Department of Corrections, Respondent-Appellant
|
Charles A. Palmer, Asst. Atty. Gen., Jim Mattox, Atty. Gen., Austin, Tex., for respondent-appellant., Maury Hexamer, Sherman, Tex. (court-appointed), for petitioner-appellee.
| null | null | null | null | null | null | null | null | null | null | 19 |
Published
| null |
<parties id="b1197-10">
James Ray YOUNG, Petitioner-Appellee, v. James A. LYNAUGH, Interim Director Texas Department of Corrections, Respondent-Appellant.
</parties><br><docketnumber id="b1197-13">
No. 86-2064.
</docketnumber><br><court id="b1197-14">
United States Court of Appeals, Fifth Circuit.
</court><br><decisiondate id="b1197-16">
July 20, 1987.
</decisiondate><br><attorneys id="b1198-20">
<span citation-index="1" class="star-pagination" label="1134">
*1134
</span>
Charles A. Palmer, Asst. Atty. Gen., Jim Mattox, Atty. Gen., Austin, Tex., for respondent-appellant.
</attorneys><br><attorneys id="b1198-21">
Maury Hexamer, Sherman, Tex. (court-appointed), for petitioner-appellee.
</attorneys><br><judges id="b1198-23">
Before GOLDBERG, RUBIN and POLITZ, Circuit Judges.
</judges>
|
[
"821 F.2d 1133"
] |
[
{
"author_str": "Goldberg",
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": "http://bulk.resource.org/courts.gov/c/F2/821/821.F2d.1133.86-2064.html",
"author_id": null,
"opinion_text": "821 F.2d 1133\n James Ray YOUNG, Petitioner-Appellee,v.James A. LYNAUGH, Interim Director Texas Department ofCorrections, Respondent-Appellant.\n No. 86-2064.\n United States Court of Appeals,Fifth Circuit.\n July 20, 1987.\n \n Charles A. Palmer, Asst. Atty. Gen., Jim Mattox, Atty. Gen., Austin, Tex., for respondent-appellant.\n Maury Hexamer, Sherman, Tex. (court-appointed), for petitioner-appellee.\n Appeal from the United States District Court for the Eastern District of Texas.\n Before GOLDBERG, RUBIN and POLITZ, Circuit Judges.\n GOLDBERG, Circuit Judge:\n \n \n 1\n After many years of seeking relief from an allegedly involuntary guilty plea to a 1963 burglary charge, Petitioner James Ray Young obtained from the district court a writ of habeas corpus. Young claimed to receive not merely ineffective assistance of counsel, but no assistance whatever regarding his plea. Below and on appeal, the state has played procedural football, urging the federal judiciary to punt Young's claims entirely, or at least to lateral them back to the state courts. We find that the district court properly entertained Young's petition, but that it must retain possession of his claims for further substantive consideration.\n \n \n 2\n The state contends that Young is not \"in custody,\" and thus that the district court lacked jurisdiction to consider his petition. Second, even if jurisdiction exists, the state urges us to decline jurisdiction on equitable and comity-based grounds. Third, the state argues that Young has failed to exhaust state remedies by presenting corroborative testimony at his federal habeas hearing. Fourth, the state claims that factfindings of the state court habeas judge preclude review of Young's substantive claims. Each of these contentions is meritless. However, the district court failed properly to find prejudice under the applicable standard for ineffective assistance of counsel. We therefore vacate the judgment and remand for further proceedings consistent with this opinion.\n \n I. The Players and the Background\n \n 3\n Late in 1962, an eighteen-year-old Young was arrested for a burglary in Cause No. 27530. Lacking counsel and erroneously believing that his probation--resulting from an uncounseled plea arrangement, formed in Grayson County, Texas six weeks prior to this arrest--had been revoked, Young negotiated a plea arrangement for a two-year concurrent sentence.\n \n \n 4\n On February 16, 1963, counsel was appointed to represent Young in the 15th District Court of Grayson County. After conducting no inquiry regarding the facts of Young's case, the status of Young's probation, the strength of the prosecution's case or Young's potential defenses thereto, counsel, also presuming that Young's probation had been revoked, advised Young to plead guilty to the arrangement that Young had negotiated. Counsel did not instruct Young as to the elements of the crime with which Young was charged, nor as to the consequences and nature of Young's plea. Young pled guilty that same day, and did not appeal this conviction.\n \n \n 5\n In 1964, Young was convicted of burglary, Cause No. E-4624-K, in the Criminal District Court No. 4 of Dallas County, Texas. Young did not appeal.\n \n \n 6\n In 1976, Young again was arrested and charged with burglary, Cause No. F76-4846-PI, in the Criminal Court No. 2 of Dallas County. Young pled not guilty, but the jury convicted. The indictment in F76-4846-PI set forth the two prior burglary convictions, which the jury found to have occurred. The trial court assessed the mandatory punishment for a burglary sentence enhanced by the two prior convictions--which is life imprisonment, see Texas Penal Code Ann. Sec. 12.42(d) (Vernon Supp.1974)--and Young unsuccessfully appealed this conviction. Young v. State, 573 S.W.2d 817 (Tex.Crim.App.1978).\n \n \n 7\n Late in 1978, Young filed a pro se habeas corpus petition in the Grayson County court challenging the 1963 conviction on the basis of ineffective assistance of counsel and an unknowing and involuntary plea. The judge, who had accepted Young's 1963 plea, appointed counsel, who amended the petition. The state court judge held an evidentiary hearing in 1979, and issued an order, including findings of fact and conclusions of law, denying relief on the merits. Young unsuccessfully appealed this order.\n \n \n 8\n In 1980, Young filed the instant federal writ application pro se, challenging the 1963 conviction on the same grounds. Late in 1980, the district court referred the case to a magistrate, who issued a show cause order to the state in 1981. The state responded with a motion to dismiss, conceding habeas jurisdiction but arguing that Young's failure to object to the 1963 sentence during its use for enhancement at the 1976 trial constituted a procedural default barring further consideration of Young's 1963 claims. Young responded to the motion to dismiss, and requested an evidentiary hearing and the appointment of counsel.\n \n \n 9\n In 1983, the district court referred the case to another magistrate who, in 1984, appointed the same attorney who argued Young's state habeas petition. During a telephone conference, Young's counsel indicated that Young was challenging only the 1963 conviction, not its use for enhancement. At that point, the state objected that Young was not \"in custody\" for habeas purposes.\n \n \n 10\n The magistrate then held an evidentiary hearing and, in 1985, issued proposed findings of fact and conclusions of law, suggesting that the district court reject the state's procedural challenges and grant relief on Young's substantive claims. The state objected to the magistrate's recommendations. On December 30, 1985, the district court adopted the magistrate's findings and granted relief from the 1963 conviction because Young had received ineffective assistance of counsel. The state appeals.1\n \n \n 11\n II. Jurisdiction on the Sec. 2254(a) Playing Field\n \n \n 12\n 28 U.S.C. Sec. 2254(a) provides that \"[t]he Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.\" In Carter v. Estelle, 677 F.2d 427, 450 n. 22 (5th Cir.1982) (citation omitted), reh. denied, 691 F.2d 777 (5th Cir.1982), cert. denied, 460 U.S. 1056, 103 S. Ct. 1508, 75 L. Ed. 2d 937 (1983),\n \n \n 13\n [w]e note[d] that it is still an unsettled question in this circuit to what extent the use of an earlier sentence for enhancement purposes in a present sentence satisfies the custody requirement for the purpose of an attack on the former sentence. See generally Escobedo v. Estelle, [650 F.2d 70, modified on petition for rehearing, 655 F.2d 613 (5th Cir.1981) ] (suggesting that requirement may be satisfied, if, according to the rule of Sinclair v. Blackburn, 599 F.2d 673, 676 (5th Cir.1979), cert. denied, 444 U.S. 1023, 100 S. Ct. 684, 62 L. Ed. 2d 656 (1980), petitioner can show a positive demonstrable relationship between the prior conviction and the petitioner's present incarceration).\n \n \n 14\n The district court properly identified this state of the law, and settled the question by finding Young in custody due to the 1976 enhancement.\n \n \n 15\n Although the state conceded below and on appeal that \"as a matter of historical fact, Young is 'in custody' due to his 1963 conviction because it was used for enhancement of punishment in 1976.... [the state contends that] Young is not 'in custody' for purposes of the instant federal habeas action because he has made the tactical decision to challenge only the 1963 conviction and not its use for enhancement.\" First, the state argues, because Young has fully served the 1963 conviction, there is no \"positive, demonstrable relationship\" under Sinclair between the conviction that Young challenges and Young's current custody so as to convey jurisdiction. Second, because Young allegedly is likely successfully subsequently to challenge his 1976 conviction if this writ were to issue, a finding of custody would sanction piecemeal litigation. Third, were we to entertain the petition, the state would be deprived of an opportunity to argue procedural default under Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977).2\n \n \n 16\n The state candidly concedes that Young's 1963 conviction is \"positively and demonstrably related\" to the enhanced 1976 life sentence, but (admittedly \"hypertechnically\") claims that it is not demonstrably related to his present confinement because he is not currently challenging this confinement. The greensward of Sec. 2254(a), however, reveals no such hypertechnical pitfall. As we stated in Sinclair and reiterated in Escobedo, \" ' \"in custody\" for jurisdiction under Sec. 2254(a) does not necessarily mean \"in custody for the offense being attacked.\" ' \" Escobedo, 655 F.2d at 614 (quoting Sinclair, 599 F.2d at 676); see also Carter v. Procunier, 755 F.2d 1126, 1129 (5th Cir.1985); Cappetta v. Wainwright, 406 F.2d 1238, 1239 (5th Cir.1969) (citing Carafas v. La Vallee, 391 U.S. 234, 88 S. Ct. 1556, 20 L. Ed. 2d 554 (1968), and other cases), cert. denied, 396 U.S. 846, 90 S. Ct. 55, 24 L. Ed. 2d 96 (1969). There is clearly (and admittedly) a positive and demonstrable nexus between Young's current custody and the allegedly unconstitutional conviction sufficient to meet the jurisdictional requirement of Sec. 2254(a).\n \n \n 17\n To further assure that Young's claims were located between the habeas hashmarks, the district court adopted the magistrate's finding that Young is \"in custody,\" because Young \"will receive 'credit in some degree' on his current sentence\" were the 1963 conviction voided. The state claims that, even in this regard, Young's petition did not demonstrate a positive relationship under Sinclair; Young introduced no \"evidence\" to demonstrate the likelihood of his earlier release, and the magistrate improperly \"engaged in a series of perplexing and illogical presumptions and assumptions\" to reach a conclusion that credit would ensue \"based solely on the magistrate's reading of the Texas laws governing parole.\" The state's argument again runs out of bounds of the applicable law.\n \n \n 18\n Sinclair, in which the Board of Pardons failed to grant clemency, explicitly distinguished Cappetta v. Wainwright, because of the subjective judgment of the Board's determination. Sinclair, 599 F.2d at 676. In Cappetta, the petitioner challenged a fully-served (Dade) conviction although in custody on another (Hillsborough) conviction, which commenced upon expiration of the Dade sentence.\n \n \n 19\n [A] successful attack on the Dade sentence will result in his release under the Hillsborough sentence, presumably though unstated, because of some Florida law allowing credit under the circumstances or because of the wording of the Hillsborough sentence. That sentence is not a part of the record and was apparently not before the District Court. Appellant cites no Florida or other authority providing such a form of credit.... We hold that the court has jurisdiction ... to determine whether the relationship, as claimed, between the present confinement and the Dade County judgment is such as would result in the appellant receiving credit in some degree on the Hillsborough sentence if he should prevail on the merits of his petition.\n \n \n 20\n 406 F.2d at 1239 (emphasis added). Contrary to the state's interpretation of Sinclair, Cappetta instructs that, when a petitioner alleges credit, the court has jurisdiction over the petition to determine whether credit would be provided, even if the petitioner has cited to no authority or law that would demonstrate an earlier release. Relief is not \"speculative and remote,\" Diehl v. Wainwright, 423 F.2d 1108, 1109 (5th Cir.1970) (also distinguishing Cappetta ), but sufficiently likely to require consideration of credit and of the merits, see Sammons v. Rodgers, 785 F.2d 1343 (5th Cir.1986). The magistrate properly covered the turf of Texas parole.\n \n \n 21\n The magistrate's determination that, according to Texas parole procedures, Young will receive credit \"in some degree\" if he succeeds on the merits of his petition is not clearly erroneous. Jurisdiction therefore lies to entertain the habeas petition, see Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974); Preiser v. Rodriguez, 411 U.S. 475, 487, 93 S. Ct. 1827, 1835, 36 L. Ed. 2d 439 (1973), and the case is not moot, see Carter, 755 F.2d at 1130 (citing Sibron v. New York, 392 U.S. 40, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968)). Notwithstanding, the state would require Young or the magistrate to perform the impracticable or impossible, viz., to determine the precise degree of credit Young would receive. See generally Jasuta, Time Credits and Related Problems, 49 Tex.Bar J. 954 (Oct. 1986) (describing the byzantine intricacies of Texas parole procedures). It would be manifestly unfair to require, for Young or any other habeas petitioner to obtain review, that the magistrate determine with certainty that the petitioner's custody would be reduced, once the magistrate has determined that a prima facie case exists for obtaining some degree of credit. The state is the only party in a position to demonstrate conclusively that the petitioner would obtain no relief. The state cannot be prejudiced except by its own failure to place such information before our judicial purview, and thus will not be heard to complain of its nonstrategic formation.\n \n III. Illegal Motion\n \n 22\n The state contends that a joint application of Escobedo and Moran v. Estelle, 607 F.2d 1140 (5th Cir.1979), somehow will prevent the state from asserting that Young's failure to object contemporaneously in 1976 to enhancement of his sentence by the 1963 conviction bars consideration of an anticipated subsequent petition challenging the 1976 conviction. Because the procedural default doctrine of Sykes allegedly could be asserted were Young to challenge enhancement in the instant petition, Sykes should be extended orthogonally to block consideration of this present, putatively piecemeal petition, which does not confront the unobjected-to enhancement.\n \n \n 23\n But even here, the state is improperly in motion before the snap and meritlessly attempts to raise concerns that are not even remotely at issue at this time. The state challenges a petition that does not allege enhancement and not the hypothetical petition that might. Thus, the state would have us deny Young relief not just from enhancement, but also from the improper parole classification, relief to which Young is clearly entitled if his claims are meritorious. This elimination of an existing remedy cannot be sanctioned under Rule 9(b)3 or any principle of comity. As we stated in Escobedo, the \" 'mere possibility of success in additional ... proceedings does not bar federal consideration of the claim.' \" 650 F.2d at 74 (quoting Galtieri v. Wainwright, 582 F.2d 348, 354 n. 12 (5th Cir.1978) (en banc)). Procedural default might be applicable were Young eventually to challenge the enhancement, but it cannot appropriately be injected into this petition.\n \n \n 24\n In the event that Young brings a subsequent petition, the state may then assert its contemporaneous objection rule. We pretermit any decision on the application of procedural default until such a rematch occurs on our judicial schedule. We therefore have no occasion to consider Young's additional response that Hill v. State, 633 S.W.2d 520 (Tex.Crim.App.1981), altered the applicable law of Smith v. State, 486 S.W.2d 374 (Tex.Crim.App.1972), and that there did not exist a contemporaneous objection requirement in 1976 on which Young could have defaulted. We also express no opinion concerning the exhaustion of state remedies for Young's subsequent petition.\n \n IV. Adequate Preparation and Training\n \n 25\n Citing Rose v. Lundy, 455 U.S. 509, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982); Picard v. Connor, 404 U.S. 270, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971); Joyner v. King, 786 F.2d 1317 (5th Cir.1986), cert. denied sub nom. Joyner v. Phelps, --- U.S. ----, 107 S. Ct. 653, 93 L. Ed. 2d 708 (1986); Rodriguez v. McKaskle, 724 F.2d 463 (5th Cir.1984), cert. denied sub nom. Rodriguez v. Procunier, 469 U.S. 1039, 105 S. Ct. 520, 83 L. Ed. 2d 408 (1984); Brown v. Estelle, 701 F.2d 494 (5th Cir.1983); Burns v. Estelle, 695 F.2d 847 (5th Cir.1983); and Winfree v. Maggio, 664 F.2d 550 (5th Cir.1981), the state contends that Young's current petition alleges new facts or legal theories not presented to the state courts and, therefore, his petition should be dismissed for failing to exhaust state remedies. As we stated in Joyner:\n \n \n 26\n In Brown ... we held that when a claim in a significantly different and stronger evidentiary posture than it was before the state courts is filed in federal court, the exhaustion doctrine required, nonetheless, further proceedings in state court.... In Burns, we held that a state habeas petitioner who presented in federal court entirely new evidence of his claim of ineffective assistance of counsel had failed to satisfy the exhaustion requirement.... Joyner's new factual allegations include several items of evidence.... [W]e are unwilling to depart from a settled rule to accomodate new factual allegations in support of a previously asserted legal theory, even though these factual allegations came into existence after state habeas relief had been denied.\n \n \n 27\n 786 F.2d at 1319-20.\n \n \n 28\n Although the state invokes a valid theory of exhaustion, the state mischaracterizes this petition as having raised \"new facts\" before the district court. Young had alleged in his state habeas petition and hearing the relevant facts of his potential alibi defense in relation to the voluntariness of his guilty plea and the effective assistance of his counsel, which we discuss below.\n \n \n 29\n The magistrate correctly found that \"all crucial factual allegations were before the state courts at the time they ruled on the merits of Petitioner's state application for writ of habeas corpus.\" We therefore dismiss the state's final, feeble effort to avoid substantive consideration by arguing exhaustion. \"Concluding as we do that the alleged 'new facts' are not new at all, we cannot see how our consideration of these same facts in any way undercuts the state court, or creates any friction between the state and federal judicial systems.\" Vela v. Estelle, 708 F.2d 954, 960 (5th Cir.1983), cert. denied sub nom. McKaskle v. Vela, 464 U.S. 1053, 104 S. Ct. 736, 79 L. Ed. 2d 195 (1984).\n \n \n 30\n V. The Substantive Conflict and Sec. 2254(d)\n \n \n 31\n Drawing directly from and supplementing the state habeas court's factfinding in 1979, the magistrate proposed several findings of fact. Young entered his guilty plea in 1963 after having been in jail for six weeks and after negotiating the agreement on his own. Young had only an eighth grade education at the time of his plea, did not understand his right to counsel, and pled guilty because he erroneously believed that his probation had been revoked. Young thought that he would serve greater time if he pled not guilty, even if he were acquitted, than if he pled guilty. He pled in exchange for the state's recommendation of a concurrent sentence. Young understood fully neither the charges against him nor the consequences of his guilty plea. Finally, Young's plea was not supported by any evidence.\n \n \n 32\n Young's counsel, appointed on the date that Young pled, did not discuss the facts of the case with Young or with the prosecuting attorney, and did not conduct an independent investigation. Counsel did not inquire into any potential defenses that Young might assert, including Young's alibi defense, did not know the strength of the state's case nor Young's chances of success, and did not provide Young with an understanding of how the law applied to the facts of his case. Counsel would not have advised Young to plead guilty had he known that the probation had not been revoked. As a result of Young's own misunderstandings and of counsel's failure to correct them, Young did not make a knowing and voluntary, or informed and conscious, choice to plead guilty.\n \n \n 33\n The magistrate thus proposed six conclusions of law, including that Young's plea was neither knowing nor voluntary; that Young was deprived of effective assistance of counsel; and that Young's conviction was constitutionally invalid. The district court adopted the magistrate's findings of fact, and granted Young relief. The district court reasoned that, because\n \n \n 34\n Young had already been confined in jail for six weeks at the time he entered his plea, it appears likely that he was discouraged from seeking a trial on the burglary charge, when it was his perception that he would already be serving a two year sentence for his previous conviction. The magistrate, in fact, found that Young erroneously thought he would receive a longer sentence if he pleaded not guilty than if he pleaded guilty.... There is a strong probability that Young would have insisted on a trial in 1963, if he had been informed of the effect of a plea of not guilty and of his ability to challenge his revocation of probation.\n \n \n 35\n The state does not dispute the district court's factfinding, but argues that an additional fact, found by the state habeas judge, precludes the conclusion that Young's counsel was ineffective: \"Prior to pleading Petitioner guilty, Petitioner told his attorney that he had committed the offense charged.\" Because of this fact, the state believes that the district court failed to accord the presumption of correctness to the state court's factual findings required under 28 U.S.C. Sec. 2254(d).4 See Sumner v. Mata, 449 U.S. 539, 101 S. Ct. 764, 66 L. Ed. 2d 722 (1981). The state again fumbles its argument, because this fact does not conflict with the magistrate's findings. Nevertheless, we must vacate the district court's legal determination, because the district court may have impermissibly relied upon the alibi defense in determining prejudicial ineffective assistance of counsel.\n \n \n 36\n To be successful in a claim of ineffective assistance of counsel in regard to a guilty plea, a petitioner must show not only that his counsel's performance was deficient, but also that the deficient conduct prejudiced him. Hill v. Lockhart, 474 U.S. 52, ----, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985) (applying Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). Prejudice is demonstrated by showing that the plea process would have been affected had petitioner received adequate counsel. Id. The different outcome cannot merely be a \"better\" plea, but that petitioner \"would not have have pleaded guilty and would have insisted on going to trial.\" Id.; see Craker v. McCotter, 805 F.2d 538, 542 (5th Cir.1986). Further,\n \n \n 37\n where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error \"prejudiced\" the defendant by causing him to plead guilty rather than to go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a predication whether the evidence likely would have changed the outcome of the trial. Similarly, where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the \"prejudice\" inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial.\n \n \n 38\n Hill, 474 U.S. at ---- - ----, 106 S. Ct. at 370-71; see Brown v. Butler, 811 F.2d 938, 942 (5th Cir.1987).\n \n \n 39\n In the instant case, the district court held that the conduct of Young's counsel was constitutionally deficient because of counsel's failure to undertake any investigation of the case, to interview the client, to evaluate the state's evidence, to insure that Young understood the nature and elements of the offense, and to determine whether any defenses existed. Citing Gaines v. Hopper, 575 F.2d 1147, 1150 (5th Cir.1978); Baty v. Balkcom, 661 F.2d 391, 395 (5th Cir.1981), cert. denied, 456 U.S. 1011, 102 S. Ct. 2307, 73 L. Ed. 2d 1308 (1982). The district court found it likely that counsel would have advised Young differently had he investigated the alibi defense. But for these failures, the district court determined, there would be a strong probability that Young would have gone to trial.\n \n \n 40\n However, the district court did not make any finding that, if the ineffective assistance upon which relief was granted was the failure to investigate exculpatory evidence or to assert affirmative defenses, Young might have succeeded at trial or might have obtained other significant relief from his having gone to trial than from his having entered a guilty plea. Similarly, it is not self-evident that going to trial would have altered the outcome of Young's parole revocation. We thus do not know on which ground or grounds the district court found prejudice from the alleged ineffective assistance of counsel. To the extent that the district court granted relief based upon the likelihood of success of the alibi defense, however, the district court's decision was improper.\n \n \n 41\n The state court found that Young had told his attorney that he committed the offense charged, even though they did not discuss the facts of Young's case. The magistrate and district court found that Young did not understand the charges against him. Thus, Young implicitly could not have known whether or not he committed the offense regardless of what he admitted. Notwithstanding, the attorney's conduct could not be deficient for failing to pursue the alibi defense. Given Young's statement, the attorney could only believe that he would suborn perjury were he to permit the alibi to be asserted. See Nix v. Whiteside, 475 U.S. 157, 106 S. Ct. 988, 89 L. Ed. 2d 123 (1986). Although Young may be perfectly honest in asserting at this time that he did not commit the offense, we are precluded by Sec. 2254(d) from disregarding such an admission to his attorney. See id. at ----, 106 S.Ct. at 1002-03 (Blackmun, J., concurring).\n \n \n 42\n A harder question is presented by the district court's potential reliance on the failure of counsel to investigate the status of parole. The state court found that Young's counsel \"assumed from what petitioner told him that such probation had already been revoked at the time the plea of guilty was entered....\" Normally, Young would not be able to claim that his attorney was deficient for relying on information that Young supplied. See, e.g., Johnson v. Cabana, 805 F.2d 579, 581-82 (5th Cir.1986). Here, however, Young's testimony in the state court indicates that Young likely was misled deliberately by the prosecuting attorneys to induce his plea.5\n \n \n 43\n The district court did not make a factual finding that Young deliberately was misled. We have yet to address whether an attorney has a duty to make a reasonable effort to discover prosecutorial misconduct employed against his or her client, and perhaps such a matter is better addressed by use of the supervisory powers over the federal courts and of fourteenth amendment due process restrictions in the state courts. On remand, the district court should consider whether the prosecution deliberately misled Young, and, if so, whether Young's plea more properly should be vacated for violating his fourteenth amendment rights rather than for violating his sixth amendment rights.\n \n VI. The Final Score\n \n 44\n Because we do not know on which basis or bases the district court found prejudice from Young's ineffective assistance of counsel, we must remand for the district court to clarify its factual findings and legal conclusions. This will assist in determining whether counsel's conduct in fact was deficient. The district court also should determine whether, based upon the facts found and independent of any alleged ineffective assistance of counsel, Young's plea was unknowing and involuntary under the totality of the circumstances. Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970). The district court should directly address whether the facts found by the state habeas court, that petitioner admitted in the trial court that he was acting freely and voluntarily and that the standard practice of the trial judge was not to accept pleas without oral stipulations, preclude this allegation. Finally, if the district court again determines that Young is entitled to relief from his 1963 conviction, it should provide a reasonable opportunity for the state to retry Young, if the state so desires. These determinations should occur as rapidly as possible and without further, unnecessary procedural gamesmanship.\n \n \n 45\n The judgment of the district court is VACATED and the case is REMANDED for further proceedings consistent with this opinion.\n \n \n \n 1\n During the pendency of the federal writ application, Young challenged the 1964 conviction in a petition to the Criminal Court No. 2 of Dallas County. This petition was unsuccessful. Young's application to the Court of Criminal Appeals was denied in 1983\n \n \n 2\n We discuss the state's second and third challenges below, because these comity-based or equitable arguments are not jurisdictional. See Sykes, 433 U.S. at 83, 97 S.Ct. at 2504 (Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963), overruling Brown v. Allen, 344 U.S. 443, 73 S. Ct. 397, 97 L. Ed. 469 (1953), \"acknowledged 'a limited discretion in the federal judge to deny relief ... to an applicant who had deliberately by-passed the orderly procedure of the state courts' \" \"[a]s a matter of comity but not of federal power\"); id. at 96 n. 4, 97 S. Ct. 2511 n. 4 (Stevens, J., concurring) (procedural default is a \"matter of equitable discretion rather than a question of statutory authority; ...\"); 28 U.S.C. Sec. 2254 Rule 9(b) Advisory Committee Note (\"The bar set up by subdivision (b) [permitting dismissal of successive petitions] is not one of rigid application, but rather is within the discretion of the courts on a case-by-case basis.\")\n \n \n 3\n 28 U.S.C. Sec. 2254 Rule 9(b) states: \"A second or successive petition may be dismissed if ... the failure of the petitioner to assert [new] grounds in a prior petition constituted an abuse of the writ.\")\n \n \n 4\n 28 U.S.C. Sec. 2254(d) provides: \"In any proceeding instituted in Federal court by an application for a writ of habeas corpus ... a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit\" that any of eight enumerated defects in the state court factfinding procedures occurred\n \n \n 5\n Young testified as follows at the state habeas hearing:\n Q. So an Assistant County Attorney talked to you about entering a plea of guilty on this charge. He told you or led you to believe, or you understood from what he said, that your probation had already been revoked in this cause, in this previous cause [the six-week earlier plea]?\n A. That was the understanding on our first discussion around the end of January or the first of February, 1963, that he gave me. He told me if I did not plead guilty to 27,530, that I would be, my probation in 27,302, since it had already been revoked, I would go to the penitentiary. The Case No. 27,530 would be pigeonholed and when I did my time, completed serving my sentence in 27,302, that I would be returned to Grayson County jail to answer charges in Case No. 27,530.\n ....\n Q. And then what happened after that?\n A. I went back to six tank of Grayson County jail, which I had been transferred to from five tank when they got an opening. I thought about it for awhile. I wanted--I figured the quickest way to get out of the penitentiary was to go on and take the case 27,530 so I agreed--I wrote a note to the Assistant District Attorney and told him that I wanted to talk to him and upon the second discussion, which was some time in February, prior to February 16, 1963, we agreed upon a two-year plea of guilty in 27,530 to run concurrently with 27,302.\n Q. So effectively it was represented to you if you entered a plea of guilty, you wouldn't serve any more time than you had to anyway on your probation, but if you didn't enter the plea of guilty, that then it would be hanging over your head the full time during your sentence and you would have to be bench warranted back once you finished your sentence and still not be eligible for parole. Is that correct?\n A. That is correct.\n \n \n ",
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"opinion_id": 490157
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] |
Fifth Circuit
|
Court of Appeals for the Fifth Circuit
|
F
|
USA, Federal
|
2,599,556 |
Marquardt, P.J., Wahl, S.J., and Ernest L. Johnson, District Judge, Assigned
| 2000-07-28 | false |
in-re-the-care-treatment-of-goracke
|
In Re Care & Treatment of Goracke
|
In Re the Care & Treatment of Goracke
|
In the Matter of the Care and Treatment of Conn Richard Goracke, Appellant
|
John C. Qiele, of Salina, for appellant., Terry R. Gross, assistant attorney general, and Carla J. Stovall, attorney general, for appellee.
| null | null | null | null | null | null | null | null | null | null | 5 |
Published
| null |
<citation id="b891-5">
(9 P.3d 595)
</citation><br><docketnumber id="b891-6">
No. 83,766
</docketnumber><br><parties id="b891-7">
In the Matter of the Care and Treatment of Conn Richard Goracke,
<em>
Appellant.
</em>
</parties><decisiondate id="AZqq">
Opinion filed July 28, 2000.
</decisiondate><br><attorneys id="b891-15">
<em>
John C. Qiele,
</em>
of Salina, for appellant.
</attorneys><br><attorneys id="b891-16">
<em>
Terry R.
</em>
Gross, assistant attorney general, and
<em>
Carla J. Stovall,
</em>
attorney general, for appellee.
</attorneys><br><judges id="b891-18">
Before Marquardt, P.J., Wahl, S.J., and Ernest L. Johnson, District Judge, assigned.
</judges>
|
[
"9 P.3d 595",
"27 Kan. App. 2d 837"
] |
[
{
"author_str": "Marquardt",
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"opinion_text": "\n27 Kan. App. 2d 837 (2000)\n9 P.3d 595\nIn the Matter of the Care and Treatment of CONN RICHARD GORACKE, Appellant.\nNo. 83,766.\nCourt of Appeals of Kansas.\nOpinion filed July 28, 2000.\nJohn C. Giele, of Salina, for appellant.\nTerry R. Gross, assistant attorney general, and Carla J. Stovall, attorney general, for appellee.\nBefore MARQUARDT, P.J., WAHL, S.J., and ERNEST L. JOHNSON, District Judge, assigned.\n*838 MARQUARDT, J.:\nConn Richard Goracke appeals the trial court's finding that he is a sexually violent predator pursuant to K.S.A. 1999 Supp. 59-29a01.\nUnfortunately, the record on appeal in this case is extremely sparse. In December 1997, Goracke was found incompetent to stand trial on two counts of aggravated indecent liberties with a child. Goracke's criminal history includes convictions on three counts of indecent liberties with a child, one count of aggravated sodomy, one count of indecent solicitation of a child, and two counts of endangering a child. On March 30, 1998, the trial court found probable cause to believe that Goracke is a sexually violent predator.\nOn April 23, 1998, the trial court granted the State's motion for a continuance, stating: \"A new trial date will be set upon the receipt of the evaluation.\"\nOn August 26, 1998, Goracke's attorney was allowed to withdraw as counsel of record. A second attorney was appointed to represent Goracke, but he also withdrew. On August 31, 1998, John Giele was appointed to represent Goracke. On December 23, 1998, Goracke filed a motion for an independent psychological evaluation, which was granted.\nGoracke's trial was held in April 1999. Goracke waived his right to a trial by a jury. The trial court found Goracke to be a sexually violent predator. Goracke was remanded to the custody of the Secretary of Social and Rehabilitation Services. Goracke timely appeals to this court.\n\nPetition Filing\nGoracke questions whether the petition in this matter was properly filed by facsimile because there is no file-stamped copy of the petition in the trial court file. Goracke believes that the requirements of Supreme Court Rule 119 (1999 Kan. Ct. R. Annot. 162) and K.S.A. 60-203 were not properly followed. Goracke argues that the lack of appropriate procedure left the trial court without jurisdiction to consider the State's claims.\nFiling a petition with the clerk of the court shall include receipt by the clerk of a petition by telefacsimile. K.S.A. 60-203(d). Facsimile *839 filings shall be deemed filed as of the time printed by the court facsimile machine on the final page of the facsimile document. Supreme Court Rule 119(d)(2) (1999 Kan. Ct. R. Annot. 164).\nIn this case, the last page of the faxed petition shows that it was sent at 9:04 on Wednesday, March 4, 1998. The State properly complied with Rule 119(d)(2). Goracke's arguments to the contrary are not persuasive.\n\nTimely Trial\nGoracke's probable cause hearing was held on March 25, 1998. Goracke's trial was held on April 29, 1999. Goracke claims that this delay violated K.S.A. 1999 Supp. 59-29a06.\nA court is required to conduct a trial within 60 days after the completion of a K.S.A. 1999 Supp. 59-29a05 hearing to determine whether the person is a sexually violent predator. The use of the word \"shall\" in K.S.A. 1999 Supp. 59-29a06 is mandatory and not discretionary. In order for the statutory 60-day period to be extended, there must be a request with a showing of good cause or a motion by the court. A continuance is conditional and (1) must be considered upon a motion, (2) must be granted for the purpose of due administration, and (3) cannot substantially prejudice the defendant. See In re Care & Treatment of Brown, 26 Kan. App. 2d 117, 120, 978 P.2d 300 (1999). Only a specific motion for continuance will toll the 60-day period.\nThe State filed a motion for continuance in April 1998. There were delays associated with the withdrawal of two of Goracke's attorneys, and Goracke's motion for an independent psychological evaluation.\nGoracke's hearing was held outside the time period allowed by K.S.A. 1999 Supp. 59-29a06. The Kansas Sexually Violent Predator Act is civil in nature; therefore, speedy trial protections afforded criminal defendants do not apply. Brown, 26 Kan. App.2d at 119. However, in its ruling on Goracke's objection to the trial not being scheduled in a timely fashion under K.S.A. 1999 Supp. 59-29a06, the trial court stated:\n\n*840 \"[T]he Court, having found that there was, on it's own motion, good cause and for the [due] administration of justice, not prejudicial to the respondent, did set this case in as timely a fashion as the psychiatric evaluations and the ability of counsel to prepare and be able to proceed, in the best interest of their client would permit, so that motion is overruled.\"\nGoracke's case can be distinguished from Brown. In Brown, there was no motion by the trial court, no statement about the due administration of justice, and no statement about whether the defendant was prejudiced.\nTherefore, the trial court's finding that Goracke is a sexually violent predator is affirmed.\n\nProcedure\nGoracke contends that since he was found incompetent to stand trial on the December 1997 charges, the trial court was required to proceed with a hearing pursuant to K.S.A. 1999 Supp. 59-29a07(b). Goracke argues that the trial court erred by proceeding with the psychiatric phase of the trial without first meeting the requirements of K.S.A. 1999 Supp. 59-29a07(b).\nInterpretation of a statute is a question of law. As such, this court is afforded an unlimited scope of review. State v. Patterson, 25 Kan. App. 2d 245, 247, 963 P.2d 436, rev. denied 265 Kan. 888 (1998).\nIf the person charged with a sexually violent offense has been found incompetent to stand trial and is about to be released pursuant to K.S.A. 1999 Supp. 22-3305, and such person's commitment is sought pursuant to subsection (a), the court shall first hear evidence and determine whether the person did commit the act or acts charged. K.S.A. 1999 Supp. 59-29a07(b).\nGoracke was found incompetent to stand trial for two counts of aggravated indecent liberties in December 1997. However, Goracke's prior convictions included three counts of indecent liberties with a child, one count of aggravated sodomy, and two counts of endangering a child. These convictions, even without a trial on the two counts of aggravated indecent liberties, place Goracke within the definition of a sexually violent predator. See K.S.A. 1999 Supp. 59-29a02(a). Thus, it was not necessary for the trial court to hold a hearing pursuant to K.S.A. 1999 Supp. 59-29a07(b).\n*841 The trial court did not err in refusing to hold a hearing pursuant to K.S.A. 1999 Supp. 59-29a07(b). The trial court correctly noted that the State could rely on prior convictions and still meet its burden of proof. The trial court did not err in refusing to hold a hearing on the 1997 charges.\n\nPrior Convictions\nThe trial court took judicial notice of the memorandum opinion in case No. 80 CRM 1086 from Saline County that showed Goracke was convicted on February 20, 1981, of one count of aggravated sodomy and three counts of indecent liberties with a child. On appeal, the convictions were affirmed by this court. The trial court found that there was ample documentation to show the convictions.\nIn this appeal, Goracke claims that the trial court should have required a certified copy of the journal entry. The admission of evidence lies within the sound discretion of the trial court. State v. Lumley, 266 Kan. 939, 950, 976 P.2d 486 (1999).\nWe agree with Goracke that it would have been preferable for the State to have introduced into evidence a certified copy of the journal entry. However, the trial court was able to view the original memorandum opinion, as well as a mandate from this court affirming Goracke's convictions and sentence.\nWe find no error in the trial court's decision to take judicial notice of Goracke's prior convictions.\n\nSufficiency of the Evidence\nGoracke claims that the record is lacking direct, competent evidence concerning the number of times he engaged in sexually inappropriate behavior with children. Goracke contends that the trial court's finding was not supported by substantial competent evidence.\nA sexually violent predator is any person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in repeat acts of sexual violence. K.S.A. 1999 Supp. 59-29a02(a).\n*842 Goracke's prior convictions are for sexually violent offenses. See K.S.A. 1999 Supp. 59-29a02(e). Thus, our only question is whether Goracke suffers from a mental abnormality or personality disorder rendering him incapable of controlling his dangerous behavior. See In re Care and Treatment of Crane, Supreme Court opinion No. 82080, filed July 14, 2000.\nDr. Charles Befort testified that Goracke suffers from pedophilia, sexual attraction to males, exclusive type. Dr. Befort said Goracke denied having committed any crime and said that he was framed. Dr. Befort believed that Goracke posed a threat to children and characterized Goracke's behavior as predatory.\nRobert Huerter, a clinical psychologist, also testified at Goracke's hearing. Huerter diagnosed Goracke as suffering from pedophilia, sexual attraction to males and females, exclusive type. Huerter characterized Goracke as being at a high risk to reoffend. Huerter also believed that Goracke preyed on children and befriended them in order to gain access.\nThe final witness for the State was Dr. J.L.L. Fernando. Dr. Fernando diagnosed Goracke as suffering from pedophilia, sexual attraction to males and females, nonexclusive type. Dr. Fernando placed Goracke at high risk to reoffend. Dr. Fernando testified that Goracke met the criteria of a sexually violent predator.\nThere is sufficient evidence to sustain the trial court's finding that Goracke is a sexually violent predator.\nAffirmed.\n",
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Court of Appeals of Kansas
|
Court of Appeals of Kansas
|
SA
|
Kansas, KS
|
2,599,546 |
Hobbs, Rice
| 2000-09-11 | false |
ad-two-inc-v-city-county-of-denver
| null |
Ad Two, Inc. v. City & County of Denver
|
AD TWO, INC. D/B/A the Coffee Beanery; Airport Concessions, Inc.; Airport Services, Inc. D/B/A Quizno's and Peaberry Coffee; GRD & D, Inc. D/B/A Boyer's Gourmet Coffees; Laura Devarona D/B/A Varona Imports (Colorado Colors); Dick & Jane Pizza, Inc. D/B/A Domino's Pizza; First Class Baggage Co. F/K/A Golden Eel Import Co. of Colorado; Kellen Industries, Inc., D/B/A Rocky Mountain Chocolate Factory and the Studio; Mission Yogurt, Inc. D/B/A Penguin's Harvest Express; Trugoy, Inc. D/B/A TCBY Yogurt; Susan Vale, Inc.; And Lauren K. Wahlstrom, D/B/A the Colorado Collection, Petitioners, v. the CITY AND COUNTY OF DENVER, by and Through the MANAGER OF AVIATION; And the Manager of Aviation, City and County of Denver, Respondents
|
Hochstadt, Straw, Strauss & Silverman, P.C., Richard S. Strauss, Jordan Hochstadt, Denver, Colorado, Attorneys for Petitioners., J. Wallace Wortham, City Attorney, City and County of Denver, Helen Eckardt Raabe, Assistant City Attorney, City and County of Denver, Denver, Colorado, Attorneys for Respondents.
| null | null | null | null | null | null | null | null | null | null | 66 |
Published
| null |
<parties id="ALp">
AD TWO, INC. d/b/a The Coffee Beanery; Airport Concessions, Inc.; Airport Services, Inc. d/b/a Quizno's and Peaberry Coffee; GRD & D, Inc. d/b/a Boyer's Gourmet Coffees; Laura Devarona d/b/a Varona Imports (Colorado Colors); Dick & Jane Pizza, Inc. d/b/a Domino's Pizza; First Class Baggage Co. f/k/a Golden Eel Import Co. of Colorado; Kellen Industries, Inc., d/b/a Rocky Mountain Chocolate Factory and the Studio; Mission Yogurt, Inc. d/b/a Penguin's Harvest Express; Trugoy, Inc. d/b/a TCBY Yogurt; Susan Vale, Inc.; and Lauren K. Wahlstrom, d/b/a The Colorado Collection, Petitioners, v. The CITY AND COUNTY OF DENVER, by and through The MANAGER OF AVIATION; and The Manager of Aviation, City and County of Denver, Respondents.
</parties><docketnumber id="AP3">
No. 99SC268.
</docketnumber><court id="AlEP">
Supreme Court of Colorado, En Banc.
</court><decisiondate id="ASy">
Sept. 11, 2000.
</decisiondate><attorneys id="A_r">
<span citation-index="1" class="star-pagination" label="374">
*374
</span>
Hochstadt, Straw, Strauss & Silverman, P.C., Richard S. Strauss, Jordan Hochstadt, Denver, Colorado, Attorneys for Petitioners.
</attorneys><attorneys id="Al0p">
J. Wallace Wortham, City Attorney, City and County of Denver, Helen Eckardt Raabe, Assistant City Attorney, City and County of Denver, Denver, Colorado, Attorneys for Respondents.
</attorneys>
|
[
"9 P.3d 373"
] |
[
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"opinion_text": "\n9 P.3d 373 (2000)\nAD TWO, INC. d/b/a The Coffee Beanery; Airport Concessions, Inc.; Airport Services, Inc. d/b/a Quizno's and Peaberry Coffee; GRD & D, Inc. d/b/a Boyer's Gourmet Coffees; Laura Devarona d/b/a Varona Imports (Colorado Colors); Dick & Jane Pizza, Inc. d/b/a Domino's Pizza; First Class Baggage Co. f/k/a Golden Eel Import Co. of Colorado; Kellen Industries, Inc., d/b/a Rocky Mountain Chocolate Factory and the Studio; Mission Yogurt, Inc. d/b/a Penguin's Harvest Express; Trugoy, Inc. d/b/a TCBY Yogurt; Susan Vale, Inc.; and Lauren K. Wahlstrom, d/b/a The Colorado Collection, Petitioners,\nv.\nThe CITY AND COUNTY OF DENVER, by and through The MANAGER OF AVIATION; and The Manager of Aviation, City and County of Denver, Respondents.\nNo. 99SC268.\nSupreme Court of Colorado, En Banc.\nSeptember 11, 2000.\n*374 Hochstadt, Straw, Strauss & Silverman, P.C., Richard S. Strauss, Jordan Hochstadt, Denver, Colorado, Attorneys for Petitioners.\nJ. Wallace Wortham, City Attorney, City and County of Denver, Helen Eckardt Raabe, Assistant City Attorney, City and County of Denver, Denver, Colorado, Attorneys for Respondents.\n*375 Justice RICE delivered the Opinion of the Court.\nWe granted certiorari to review the judgment of the court of appeals in Ad Two, Inc. v. City & County of Denver, 983 P.2d 128 (Colo.App.1999). Petitioners, twelve concessionaires at Denver International Airport (DIA) (Concessionaires), challenged an order of the Manager of Aviation (Manager) for the City of Denver (City) interpreting a provision of the Concession Agreements between Concessionaires and the City as requiring Concessionaires to retain a certified public accountant (CPA) to perform an independent audit of their revenue statements. A hearing officer upheld the Manager's interpretation of the disputed provision and Concessionaires sought review of the hearing officer's decision pursuant to C.R.C.P. 106(a)(4). The district court and the court of appeals affirmed the hearing officer's decision in separate judgments. Upon review, we conclude that the hearing officer properly interpreted the disputed provision. Accordingly, we affirm the judgment of the court of appeals.\n\nI. FACTS AND PROCEEDINGS BELOW\nIn 1993 and 1994, Concessionaires entered into agreements with the City to operate concessions at DIA. Paragraph 5.07 of these agreements required Concessionaires to submit annual statements of the total of all revenues and business transacted during the preceding calendar year. This paragraph provided, in relevant part:\n5.07 BOOKS OF ACCOUNT AND AUDITING. Upon the Commencement Date, Concessionaire shall keep within the limits of the City and County of Denver true and complete records and accounts of all Gross Revenues and business transacted, including daily bank deposits. Not later than February 28 of each and every year during the Term hereof, Concessionaire shall furnish to City a true and accurate statement of the total of all revenues and business transacted during the preceding calendar year (showing the authorized deductions or exclusions in computing the amount of such Gross Revenues and business transactions). Such statement shall be prepared and certified to be true and correct by an independent certified public accountant. Such statement shall be furnished for every calendar year in which business was transacted under this Agreement during the whole or any part of the year.\n(Emphasis added.)\nIn late 1995, as the first calendar year of operation at DIA was nearing an end, Concessionaires requested clarification from DIA representatives of the above-emphasized language in paragraph 5.07. After consultations with the City Attorney's Office, the Manager of Aviation issued an order on April 5, 1996, advising Concessionaires that the language in question required them to submit a report from an independent CPA after the CPA had audited the statement of revenues and business transacted. The Manager's order also indicated that financial statements signed by an officer of the company certifying the sales reported were unacceptable and that concessionaires who could demonstrate extraordinary economic hardship as a result of the independent audit should explain their circumstances to the City.\nConcessionaires subsequently notified the City that they formally disputed the Manager's order. Concessionaires argued that the disputed language was ambiguous and impossible to perform as written because a CPA cannot ethically \"certify\" a revenue statement to be \"true and correct,\" and, therefore, the language should be read as allowing an officer of a concessionaire to certify the revenue statements as true and correct. Pursuant to the written agreements with the City providing that all disputes arising from the agreements shall be resolved by an administrative hearing, the Manager appointed a hearing officer and a two-day hearing was held in November 1996. The hearing officer issued his findings of fact, conclusions of law, and ruling on January 10, 1997. The hearing officer affirmed the Manager's order and ruled that the disputed language was not ambiguous and that it was not impossible to perform because it could be satisfied by an audit opinion from an independent CPA that the revenue statement \"presents fairly, in all material respects the revenues and business transacted.\"\n*376 Concessionaires sought district court review of the hearing officer's ruling pursuant to C.R.C.P. 106(a)(4).[1] The district court entered its order affirming the hearing officer's ruling on July 18, 1997. Concessionaires then sought further review by timely appeal to the court of appeals and the court of appeals affirmed the district court and hearing officer in Ad Two, Inc., 983 P.2d at 132. We granted Concessionaires' petition for certiorari to review the judgment of the court of appeals.[2]\n\nII. ANALYSIS\nConcessionaires contend that the disputed language of paragraph 5.07\"such statement shall be prepared and certified to be true and correct by an independent certified public accountant\"is ambiguous because it is susceptible to more than one reasonable interpretation. Furthermore, Concessionaires argue that rules of construction of an ambiguous contract compel the conclusion that their interpretation of the disputed language, which would allow an officer of a concessionaire to certify the annual revenue statements, should be adopted. We disagree with Concessionaires' argument for the reasons stated below.\n\nA. Standard of Review\nOur review under C.R.C.P. 106(a)(4) is limited to \"a determination of whether the [governmental] body or officer has exceeded its jurisdiction or abused its discretion, based on the evidence in the record before the defendant body or officer.\" C.R.C.P. 106(a)(4)(I). We review the record to determine if there is any competent evidence to support the hearing officer's decision. See City of Colorado Springs v. Givan, 897 P.2d 753, 756 (Colo.1995). The appropriate consideration for an appellate court is whether there is sufficient evidentiary support for the decision reached by the administrative tribunal, not whether there is adequate evidentiary support for the lower court's decision. See id. Therefore, an appellate court is in the same position as the district court in reviewing an administrative decision under C.R.C.P. 106. See id.\nHowever, contract interpretation is a question of law that is reviewed de novo and we need not defer to a lower tribunal's interpretation of the contract. See Fibreglas Fabricators, Inc. v. Kylberg, 799 P.2d 371, 374 (Colo.1990). Our review is guided by well-established principles of contract law. The primary goal of contract interpretation is to determine and give effect to the intent of the parties. See USI Properties East, Inc. v. Simpson, 938 P.2d 168, 173 (Colo.1997). The intent of the parties to a contract is to be determined primarily from the language of the instrument itself. See id. In ascertaining whether certain provisions of an agreement are ambiguous, the instrument's language must be examined and construed in harmony with the plain and generally accepted meaning of the words employed. See id. Written contracts that are complete and free from ambiguity will be found to express the intention of the parties and will be enforced according to their plain language. See id. Extraneous evidence is only admissible to prove intent where there is an ambiguity in the terms of the contract. See id.\nTerms used in a contract are ambiguous when they are susceptible to more than one reasonable interpretation. See Browder v. U.S. Fidelity & Guaranty Co., 893 P.2d 132, 133 (Colo.1995). Absent such ambiguity, we will not look beyond the four corners of the agreement to determine the *377 meaning intended by the parties. See Simpson, 938 P.2d at 173. The mere fact that the parties may have different opinions regarding the interpretation of the contract does not itself create an ambiguity in the contract. See id.\n\nB. Application\nConcessionaires contend that the disputed language of paragraph 5.07 is ambiguous and should be interpreted to allow an officer of a concessionaire to certify its annual revenue statement as true and correct, without input or review by a CPA. We conclude that the language is unambiguous and requires an independent review and verification of the revenue statement by a CPA.\nThe disputed language is contained within paragraph 5.07 of the agreement, titled \"BOOKS OF ACCOUNT AND AUDITING.\" The language provides, \"Such statement shall be prepared and certified to be true and correct by an independent certified public accountant.\" This language unambiguously demonstrates that the parties intended to require Concessionaires' revenue statements to be reviewed by a CPA so that the CPA could provide an independent statement as to the accuracy of the information. This independent verification of the revenue statements provides a level of assurance as to the overall accuracy of the statements.\nWhile the exact language used in the provision contains terms that a CPA cannot employ, we conclude that the intent of the parties is fulfilled by requiring an independent CPA to perform an audit and provide a professional opinion that the revenue statements are free from material error. We recognize that the undisputed evidence indicates that a CPA cannot use the terms \"certify\" and \"true and correct.\"[3] However, the evidence in the record is also undisputed that a CPA can provide an audit opinion that a financial statement \"presents fairly, in all material respects, the revenues and business transacted.\"[4]\nOur examination of the disputed language reveals that it clearly contains two components: (1) review and verification of the accuracy of the revenue statement, (2) to be performed by an independent CPA. By requiring an independent CPA to supply a professional opinion that the revenue statement is free from material error after an audit, both components of the provision are satisfied.\nWe have stated before that we should not allow a hyper-technical reading of the language in a contract to defeat the intentions of the parties.\n[The general rule] to be found in the authorities [is] that courts should give effect to the general purposes of a contract. Courts make due allowance for a common human failing, that of being careless in choosing words. We should not allow inept expressions to defeat the evident intentions of the parties.\nHutchinson v. Elder, 140 Colo. 379, 383, 344 P.2d 1090, 1092 (1959). We interpret the agreement's language \"certified to be true and correct\" as reflecting the parties' intentions to obtain independent assurance of the overall accuracy of the revenue statements. An independent CPA's professional opinion that a revenue statement is free from material error provides this independent level of assurance. The mere fact that a CPA cannot use the actual words \"certify\" or \"true and correct\" in a professional audit opinion should not defeat the intentions of the parties.\nInterpreting the disputed language as Concessionaires propose would be inconsistent with the unambiguous language of the provision. Requiring an independent CPA to render an audit opinion provides a level of assurance as to the overall accuracy of the revenue statement which would not be present if an officer of a concessionaire simply certified the revenue statements himself or *378 herself. Concessionaires' proposed interpretation would also render the second component of the disputed language meaningless because there would be no independent review of the financial statements.\nAs such, we conclude that the disputed language of paragraph 5.07 unambiguously requires an independent audit by a CPA indicating that the revenue statements are free from material error.[5]\n\nIII. CONCLUSION\nIn sum, we conclude that the disputed language of paragraph 5.07 is not ambiguous and that the language demonstrates the parties' intention to provide for independent CPA review and verification of the overall accuracy of the revenue statements. Accordingly, we affirm the judgment of the court of appeals upholding the hearing officer's interpretation of the disputed language.\nJustice HOBBS dissents.\nJustice HOBBS, dissenting:\nI respectfully dissent. The hearing officer, in my view, incorrectly determined that no ambiguity existed in regard to the disputed language of section 5.07 of the contract and ruled as inadmissible the concessionaires' evidence to the contrary. The language states: \"Such statement shall be prepared and certified to be true and correct by an independent certified public accountant.\" The hearing officer's ruling is contrary to Colorado law that admits evidence demonstrating the ambiguity of a seemingly unambiguous contract provision.\nThe hearing officer refused to consider the evidence of the contested provision's ambiguity; the hearing officer's error in this regard led to his second error, his ruling that the disputed provision is unambiguous. These are errors that the majority does not correct. See maj. op. at 377-78. Because the record does not support the hearing officer's findings and conclusions, and because the hearing officer did not employ the appropriate legal standards, I would reverse the decision of the court of appeals with instructions. I would require the agency to reopen the administrative proceeding, take additional evidence, and make a new determination applying the appropriate legal standards in order to ascertain the parties' intent regarding the disputed provision at the time of contract formation.\n\nI.\n\nA. The Hearing Officer's Ruling in Light of the Evidence\nThe hearing officer refused to consider evidence demonstrating the contract provision's ambiguity, and ruled evidence going to the intent of the parties at the time of contract formation to be inadmissible. The record demonstrates that (1) a similar provision to the Denver International Airport (DIA) contracts was in use in the Stapleton contracts and had achieved a recognized construction that bore on the parties' intent at the time of DIA contract formation; and (2) Denver unilaterally changed this construction following execution of the DIA contracts. The undetermined issue in this case, which should be the subject of this court's remand order, is what the parties intended in regard to the phrase \"such statement shall be prepared and certified to be true and correct by an independent certified public accountant.\"\nThis provision appears in a six-paragraph portion of the contract dealing with financial record-keeping by concessionaires. This contract portion is captioned \"Books of Account and Auditing.\" It addresses the concessionaire's responsibility to keep within the City and County of Denver \"true and complete records and accounts of all Gross Revenues and business transacted, including bank deposits.\" Not later than February 28 of each year the concessionaire is to furnish Denver with a true and accurate statement of the total of all revenues and business transacted during the preceding calendar year. The concessionaire agrees to establish and maintain a system of bookkeeping satisfactory to the City Auditor. Denver's Manager of Aviation has access during normal business *379 hours to the concessionaire's books and records. The concessionaire is also required to keep and preserve for at least three years all sales slips, cash register tapes, sales books, bankbooks or duplicate deposit slips, and all other evidence of gross revenues and business transacted for such period. The City Auditor and the Manager of Aviation, or their authorized representatives, \"shall have the right at any time to audit all of the books of account, bank statements, documents, records, returns, papers and files\" of the concessionaire. Denver has the right to require the concessionaire to install point-of-sale cash register equipment. If, after an audit, Denver determines that the gross revenues and business transacted were understated more than three percent for the year, the concessionaire must then pay for the audit, as well as the amount of the deficiency, plus interest on the deficiency amount at eighteen percent per annum from the date due. Denver's right to perform an audit expires three years after the concessionaire's statement for that year is delivered to Denver. The concessionaire agrees that the City Auditor and the Manager of Revenue may inspect any sales tax return or report, and accompanying schedules and data, filed with Denver. The concessionaire waives any claim of confidentiality in connection therewith.\nThe language in question, \"Such statement shall be prepared and certified as true and correct by an independent certified public accountant,\" refers to the annual \"true and accurate statement of the total of all revenues and business transacted during the preceding calendar year.\" The word \"audit\" appears only in the provisions which allow the City Auditor and the Manager of Aviation to conduct an audit of the financial records the concessionaire is required to keep, and charge the costs of the audit to the concessionaire if the statement for the year is understated by more than three percent.\nThe parties do not dispute that the Stapleton contracts had similar language concerning certified public accountant (CPA) certification and that principles and standards of CPAs do not allow them to certify a client's statement as being true and correct. Accordingly, the City allowed company officers to certify that the annual statements were true and correct.\nDIA's concessionaires executed contracts, with Denver, containing the Stapleton-type language in 1993, as they prepared for the opening of DIA. On April 5, 1996, the Manager of Aviation issued a memorandum to concessionaires entitled: \"Clarification of Contract Language Annual Statement of Revenue and Business Transacted.\" This memorandum stated:\nQuestions have arisen regarding the interpretation of this language. The phrase \"certified to be true and correct by an independent certified public account(ant)\" means, or will be satisfied by, a report from an independent CPA after the CPA has audited the statement of revenues and business transacted.\n(Emphasis added.)\nRecognizing that no CPA would issue the certification specified in the Stapleton and DIA contracts, Denver thus chose to substitute, after the DIA contracts were executed, a yearly CPA audit requirement for its prior acceptance of company officer certification. Ms. Debra Lynn DeMuth, Denver's Manager of Finance at DIA, testified before the hearing officer that the language of the disputed provision did not mean what it says:\nQ: And you are aware of the fact that it is not in compliance with generally accepted accounting principles and generally accepted auditing standards for an independent certified public accountant to certify a statement of gross revenues as being true and correct.\nA: That language, per se, cannot be used.\nShe also testified that the concessionaires at Stapleton were not required to submit annual statements certified in any manner by CPAs and that certain businesses at DIA would not be required to have the new annual CPA audits required of other concessionaires.\nMr. D.C. Kiyemba, Audit Supervisor at DIA, also testified that annual audit statements from CPAs were not required for the Stapleton concessionaires despite similar contract language that required CPA certification:\n\n*380 Q: And from the independent concessionaires, or from all the concessionaires at Stapleton Airport, you never required annual statements from CPAs, did you?\nA: I personally?\nQ. Yes.\nA. No.\nQ. If you had received a statement of gross revenues for a concessionaire at Stapleton Airport that was merely signed off on by an officer of the company, that was acceptable to you, was it not?\nA. Yes.\nThe record demonstrates that the expectation of DIA concessionaires at the time of contract formation did not include the later-imposed annual CPA audit requirement. Nevertheless, the hearing officer adopted Denver's reinterpretation of the contract language as being within the plain meaning of the contract. The evidence does not support this conclusion, as Denver was aware before the DIA contracts were executed that the CPA certification language could not mean what it said in light of principles and standards of the public accounting profession.\nAccordingly, the evidence demonstrates that the disputed provision is ambiguous, not on its face, but because of a latent ambiguity. The hearing officer overlooked the doctrine of latent ambiguity, as does the majority.\n\nB. Latent Ambiguity\nI conclude that a latent ambiguity exists in the disputed provision of section 5.07 of the contract. The hearing officer should have considered extrinsic evidence to determine the intent of the parties as to the disputed provision at the time of the contract's formation. As the majority states, the primary goal of contract interpretation is to determine and give effect to the intent of the parties. See USI Properties East, Inc. v. Simpson, 938 P.2d 168, 173 (Colo.1997). We must implement the clear terms of the agreement if the language of the contract is plain and unambiguous. See id. Thus, the threshold inquiry under this rule is whether the contract is ambiguous.\nThere are two different types of ambiguities. A patent ambiguity appears on the face of a document and arises from the language itself. See In re Estate of Gross, 646 P.2d 396, 397 (Colo.App.1981); Black's Law Dictionary 80 (7th ed.1999). A latent ambiguity exists where the language of the document, although clear on its face, is susceptible to more than one meaning. See Environmental Defense Fund, Inc. v. Colorado Dep't of Health, 731 P.2d 773, 776 (Colo.App.1986); Gross, 646 P.2d at 397. The doctrine of latent ambiguity comes into play only if someone who read the contract without knowledge of its real-world context of application would think it clear. See Rossetto v. Pabst Brewing Co., 217 F.3d 539, 543 (7th Cir.2000).\nIn deciding whether a contract is ambiguous, \"a steadily increasing number of courts have disavowed the plain meaning rule and have recognized the necessity of viewing extrinsic evidence.\" 5 Margaret N. Kniffin, Corbin on Contracts § 24.7, at 34 (rev. ed.1998). In Colorado, we have adopted this more flexible approach. We may consider extrinsic evidence bearing on the meaning of the written terms such as evidence of local usage and of the circumstances surrounding the making of the contract. See Lazy Dog Ranch v. Telluray Ranch Corp., 965 P.2d 1229, 1235 (Colo.1998) (holding that extrinsic evidence may be introduced to determine whether a deed is ambiguous); Fire Ins. Exch. v. Rael, 895 P.2d 1139, 1143 (Colo.App. 1995) (holding that extrinsic evidence may be introduced to determine whether the term in an insurance policy is ambiguous). However, we may not consider the parties' own extrinsic expressions of intent. See Fire Ins. Exch., 895 P.2d at 1143. In addition, if we ultimately determine that the document is unambiguous, the conditionally admitted evidence must be stricken. See Lazy Dog Ranch, 965 P.2d at 1235.\nOn its face, the disputed provision appears to be unambiguousthe revenue statements are required to be prepared and certified as true and correct by an independent CPA. In interpreting the contract, however, it is clear that this provision is indeed ambiguous. The evidence presented clearly shows that CPAs *381 are not permitted to use the words \"certify\" or \"true and correct.\" The provision is unenforceable as written and thus the plain language can not be the meaning intended by the parties.\nIn addition to the fact that the contract cannot be enforced as written, the circumstances surrounding the making of the contract provide ample support for the conclusion that an ambiguity exists. The hearing officer and the majority fail to consider this extrinsic evidence in determining that no ambiguity exists. The Stapleton contracts, which contained the same exact language as the contracts in dispute here, were interpreted very differently from the interpretation suggested by the plain language of the provision. Denver had not required the Stapleton concessionaires to provide Denver with revenue statements prepared by an independent CPA. Instead, Denver had historically accepted statements certified to be true and correct by the concessionaires' officers and owners, often without input or review by a CPA. Such circumstances clearly demonstrate that an ambiguity exists with regard to section 5.07's provisions.\nOnce an ambiguity is found, it should be resolved by giving effect to the intent of the parties. See Fire Ins. Exch., 895 P.2d at 1143; Duncan v. Eagle Rock Gold Mining & Reduction Co., 48 Colo. 569, 582, 111 P. 588, 593 (1910). Interpretation of the intent of the parties in an ambiguous contract becomes an issue of fact for the trial court to decide in the same manner as other disputed factual issues. See Fire Ins. Exch., 895 P.2d at 1143; Union Rural Elec. Ass'n v. Public Utils. Comm'n, 661 P.2d 247, 251 n. 5 (Colo. 1983). After a contract is deemed ambiguous the trial court may use extrinsic evidence to assist it in ascertaining the intent of the parties. See Cheyenne Mountain Sch. Dist. # 12 v. Thompson, 861 P.2d 711, 715 (Colo. 1993). Facts existing at the time the contract was formed, and prior thereto, may be proved by parol evidence. See Duncan, 48 Colo. at 582, 111 P. at 593.\nHere, the hearing officer should have examined the extrinsic evidence available to determine what the parties intended by including the disputed provision in section 5.07 of their contract. In determining the parties' intent, the hearing officer should also have considered \"two well established principles governing the interpretation of contracts.\" Christmas v. Cooley, 158 Colo. 297, 302, 406 P.2d 333, 336 (1965). First, in case of doubt, a contract is construed most strongly against the party that drafted it. See id. Second, where doubt exists as to the proper construction of a given clause, it should be construed in favor of the party for whose protection it was obviously inserted. See id.\nFactual development of the case in regard to the parties' intent at the time of contracting should determine which of these seemingly contradictory principles of contract construction is applicable to this case. As a matter of law, the majority chooses an interpretation that favors Denver. It reaches this conclusion based on the assumption that the most important aspect of the disputed provision is the involvement of a CPA. See maj. op. at 376-78. On the other hand, another credible assumption based on Denver's past acceptance of officer certification of the annual revenue statement is that Denver considered the certification of truth and accuracy to be more important than CPA involvement. Because Denver can protect itself through the audit provision that is available for use by the Manager of Aviation and the City Auditor, the principle that the contract should be construed against the city as drafter may prevail.\nWe ought not to conclude that a provision is unambiguous when the actions of Denver, the drafter, demonstrate that it is ambiguous. Denver's 1996 memorandum requiring a CPA audit to be completed, instead of the officer certification previously acceptable, would not have been necessary if the disputed provision were unambiguous.\n\nII.\nAccordingly, I respectfully dissent and would remand this case to the hearing officer for further fact finding and determination on the issue of the parties' intent in regard to the disputed provision at the time of contracting.\nNOTES\n[1] This rule provides relief when \"any governmental body or officer or any lower judicial body exercising judicial or quasi-judicial functions has exceeded its jurisdiction or abused its discretion, and there is no plain, speedy and adequate remedy otherwise provided by law.\" C.R.C.P. 106(a)(4).\n[2] We granted certiorari on the following issues:\n\n1. Whether the court of appeals erred when it affirmed the trial court's ruling and held that the contract language in section 5.07 of the agreements between the City & County of Denver (City) and its concessionaires at Denver International Airport were not ambiguous.\n2. Whether the court of appeals erred when it held that section 5.07 of the subject agreements required concessionaires to provide the City with revenue statements prepared in the course of an audit conducted by an independent certified public accountant.\n[3] The record contains undisputed evidence that standards promulgated by the American Institute of Certified Public Accountants contain no provisions permitting a CPA to use the words \"certify\" or \"true and correct.\"\n[4] Moreover, the record reveals that Concessionaires' expert witness testified at the hearing that although auditors do not use the term \"certification,\" a lay person's common use of that term refers to this type of audit opinion.\n[5] Because we conclude that the language is unambiguous, we do not consider evidence beyond the four corners of the document. See Simpson, 938 P.2d at 173.\n\n",
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"opinion_text": "\n*375Justice RICE\ndelivered the Opinion of the Court.\nWe granted certiorari to review the judgment of the court of appeals in Ad Two, Inc. v. City & County of Denver, 988 P.2d 128 (Colo.App.1999). Petitioners, twelve concessionaires at Denver International Airport (DIA) (Concessionaires), challenged an order of the Manager of Aviation (Manager) for the City of Denver (City) interpreting a provision of the Concession Agreements between Concessionaires and the City as requiring Concessionaires to retain a certified public accountant (CPA) to perform an independent audit of their revenue statements. A hearing officer upheld the Manager's interpretation of the disputed provision and Concessionaires sought review of the hearing officer's decision pursuant to C.R.C.P. 106(a)(4d). The district court and the court of appeals affirmed the hearing officer's decision in separate judgments. Upon review, we conclude that the hearing officer properly interpreted the disputed provision. Accordingly, we affirm the judgment of the court of appeals.\nI. FACTS AND PROCEEDINGS BELOW\nIn 1998 and 1994, Concessionaires entered into agreements with the City to operate concessions at DIA. Paragraph 5.07 of these agreements required Concessionaires to submit annual statements of the total of all revenues and business transacted during the preceding calendar year. This paragraph provided, in relevant part:\n5.07 BOOKS OF ACCOUNT AND AUDITING. Upon the Commencement Date, Concessionaire shall keep within the limits of the City and County of Denver true and complete records and accounts of all Gross Revenues and business transacted, including daily bank deposits Not later than February 28 of each and every year during the Term hereof, Concessionaire shall furnish to City a true and accurate statement of the total of all revenues and business transacted during the preceding calendar year (showing the authorized deductions or exclusions in computing the amount of such Gross Revenues and business transactions). Such statement shall be prepared and certified to be true and correct by an independent certified public accountant. Such statement shall be furnished for every calendar year in which business was transacted under this Agreement during the whole or any part of the year.\n(Emphasis added.)\nIn late 1995, as the first calendar year of operation at DIA was nearing an end, Concessionaires requested clarification from DIA representatives of the above-emphasized language in paragraph 5.07. After consultations with the City Attorney's Office, the Manager of Aviation issued an order on April 5, 1996, advising Concessionaires that the language in question required them to submit a report from an independent CPA after the CPA had audited the statement of revenues and business transacted. The Manager's order also indicated that financial statements signed by an officer of the company certifying the sales reported were unacceptable and that concessionaires who could demonstrate extraordinary economic hardship as a result of the independent audit should explain their circumstances to the City.\nConcessionaires subsequently notified the City that they formally disputed the Manager's order. Concessionaires argued that the disputed language was ambiguous and impossible to perform as written because a CPA cannot ethically \"certify\" a revenue statement to be \"true and correct,\" and, therefore, the language should be read as allowing an officer of a concessionaire to certify the revenue statements as true and correct. Pursuant to the written agreements with the City providing that all disputes arising from the agreements shall be resolved by an administrative hearing, the Manager appointed a hearing officer and a two-day hearing was held in November 1996. The hearing officer issued his findings of fact, conclusions of law, and ruling on January 10, 1997. The hearing officer affirmed the Manager's order and ruled that the disputed language was not ambiguous and that it was not impossible to perform because it could be satisfied by an audit opinion from an independent CPA that the revenue statement \"presents fairly, in all material respects the revenues and business transacted.\"\n*376Concessionaires sought district court review of the hearing officer's ruling pursuant to CRCP 106(a)(4).1 The district court entered its order affirming the hearing officer's ruling on July 18, 1997. Concessionaires then sought further review by timely appeal to the court of appeals and the court of appeals affirmed the district court and hearing officer in Ad Two, Inc., 983 P.2d at 132. We granted Concessionaires' petition for certiorari to review the judgment of the court of appeals.2\nII. ANALYSIS\nConcessionaires contend that the disputed language of paragraph 5.07-\"such statement shall be prepared and certified to be true and correct by an independent certified public accountant\"-is ambiguous because it is susceptible to more than one reasonable interpretation. Furthermore, Concessionaires argue that rules of construction of an ambiguous contract compel the conclusion that their interpretation of the disputed language, which would allow an officer of a concessionaire to certify the annual revenue statements, should be adopted. We disagree with Concessionaires' argument for the reasons stated below.\nA. Standard of Review\nOur review under CRCP. 106(a)(4) is limited to \"a determination of whether the [governmental] body or officer has exceeded its jurisdiction or abused its discretion, based on the evidence in the record before the defendant body or officer.\" C.R.C.P. 106(a)(4)(I). We review the record to determine if there is any competent evidence to support the hearing officer's decision. See City of Colorado Springs v. Givan, 897 P.2d 753, 756 (Colo.1995). The appropriate consideration for an appellate court is whether there is sufficient evidentiary support for the decision reached by the administrative tribunal, not whether there is adequate evidentiary support for the lower court's decision. See id. Therefore, an appellate court is in the same position as the district court in reviewing an administrative decision under C.R.C.P. 106. See id.\nHowever, contract interpretation is a question of law that is reviewed de novo and we need not defer to a lower tribunal's interpretation of the contract. See Fibreglas Fabricators, Inc. v. Kylberg, 799 P.2d 371, 374 (Colo.1990). Our review is guided by well-established principles of contract law. The primary goal of contract interpretation is to determine and give effect to the intent of the parties. See USI Properties East, Inc. v. Simpson, 938 P.2d 168, 173 (Colo.1997). The intent of the parties to a contract is to be determined primarily from the language of the instrument itself. See id. In ascertaining whether certain provisions of an agreement are ambiguous, the instrument's language must be examined and construed in harmony with the plain and generally accepted meaning of the words employed. See id. Written contracts that are complete and free from ambiguity will be found to express the intention of the parties and will be enforced according to their plain language. See id. Extrancous evidence is only admissible to prove intent where there is an ambiguity in the terms of the contract. See id.\n Terms used in a contract are ambiguous when they are susceptible to more than one reasonable interpretation. See Browder v. U.S. Fidelity & Guaranty Co., 893 P.2d 132, 133 (Colo.1995). Absent such ambiguity, we will not look beyond the four corners of the agreement to determine the *377meaning intended by the parties See Simpson, 938 P.2d at 178. The mere fact that the parties may have different opinions regarding the interpretation of the contract does not itself create an ambiguity in the contract. See id.\nB. Application\nConcessionaires contend that the disputed language of paragraph 5.07 is ambiguous and should be interpreted to allow an officer of a concessionaire to certify its annual revenue statement as true and correct, without input or review by a CPA. We conclude that the language is unambiguous and requires an independent review and verification of the revenue statement by a CPA.\nThe disputed language is contained within paragraph 5.07 of the agreement, titled \"BOOKS OF ACCOUNT AND AUDITING.\" The language provides, \"Such statement shall be prepared and certified to be true and correct by an independent certified public accountant.\" This language unambiguously demonstrates that the parties intended to require Concessionaires' revenue statements to be reviewed by a CPA so that the CPA could provide an independent statement as to the accuracy of the information. This independent verification of the revenue statements provides a level of assurance as to the overall accuracy of the statements.\nWhile the exact language used in the provision contains terms that a CPA cannot employ, we conclude that the intent of the parties is fulfilled by requiring an independent CPA to perform an audit and provide a professional opinion that the revenue statements are free from material error. We recognize that the undisputed evidence indicates that a CPA cannot use the terms \"certify\" and \"true and correct.\"3 However, the evidence in the record is also undisputed that a CPA can provide an audit opinion that a financial statement \"presents fairly, in all material respects, the revenues and business transacted.\"4\nOur examination of the disputed language reveals that it clearly contains two components: (1) review and verification of the accuracy of the revenue statement, (2) to be performed by an independent CPA. By requiring an independent CPA to supply a professional opinion that the revenue statement is free from material error after an audit, both components of the provision are satisfied.\nWe have stated before that we should not allow a hyper-technical reading of the language in a contract to defeat the intentions of the parties.\n[The general rule] . to be found in the authorities [is] that courts should give ef-feet to the general purposes of a contract. Courts make due allowance for a common human failing, that of being careless in choosing words. We should not allow inept expressions to defeat the evident intentions of the parties.\nHutchinson v. Elder, 140 Colo. 379, 383, 344 P.2d 1090, 1092 (1959). We interpret the agreement's language \"certified to be true and correct\" as reflecting the parties' intentions to obtain independent assurance of the overall accuracy of the revenue statements. An independent CPA's professional opinion that a revenue statement is free from material error provides this independent level of assurance. The mere fact that a CPA cannot use the actual words \"certify\" or \"true and correct\" in a professional audit opinion should not defeat the intentions of the parties.\nInterpreting the disputed language as Concessionaires propose would be inconsistent with the unambiguous language of the provision. Requiring an independent CPA to render an audit opinion provides a level of assurance as to the overall accuracy of the revenue statement which would not be present if an officer of a concessionaire simply certified the revenue statements himself or *378herself. Concessionaires' proposed interpretation would also render the second component of the disputed language meaningless because there would be no independent review of the financial statements.\nAs such, we conclude that the disputed language of paragraph 5.07 unambiguously requires an independent audit by a CPA indicating that the revenue statements are free from material error.5\nIII. CONCLUSION\nIn sum, we conclude that the disputed language of paragraph 5.07 is not ambiguous and that the language demonstrates the parties' intention to provide for independent CPA review and verification of the overall accuracy of the revenue statements. Accordingly, we affirm the judgment of the court of appeals upholding the hearing officer's interpretation of the disputed language.\nJustice HOBBS dissents.\n\n. This rule provides relief when \"any governmental body or officer or any lower judicial body exercising judicial or quasi-judicial functions has exceeded its jurisdiction or abused its discretion, and there is no plain, speedy and adequate remedy otherwise provided by law.\" C.R.C.P. 106(a)(4).\n\n\n. We granted certiorari on the following issues:\n1. Whether the court of appeals erred when it affirmed the trial court's ruling and held that the contract language in section 5.07 of the agreements between the City & County of Denver (City) and its concessionaires at Denver International Airport were not ambiguous.\n2. Whether the court of appeals erred when it held that section 5.07 of the subject agreements required concessionaires to provide the City with revenue statements prepared in the course of an audit conducted by an independent certified public accountant.\n\n\n. The record contains undisputed evidence that standards promulgated by the American Institute of Certified Public Accountants contain no provisions permitting a CPA to use the words \"certify\" or \"true and correct.\"\n\n\n. Moreover, the record reveals that Concessionaires' expert witness testified at the hearing that although auditors do not use the term \"certification,\" a lay person's common use of that teem refers to this type of audit opinion.\n\n\n. Because we conclude that the language is unambiguous, we do not consider evidence beyond the four corners of the document. See Simpson, 938 P.2d at 173.\n\n",
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"opinion_text": "\nJustice HOBBS,\ndissenting:\nI respectfully dissent. The hearing officer, in my view, incorrectly determined that no ambiguity existed in regard to the disputed language of section 5.07 of the contract and ruled as inadmissible the concessionaires' evidence to the contrary. The language states: \"Such statement shall be prepared and certified to be true and correct by an independent certified public accountant.\" The hearing officer's ruling is contrary to Colorado law that admits evidence demonstrating the ambiguity of a seemingly unambiguous contract provision.\nThe hearing officer refused to consider the evidence of the contested provision's ambiguity; the hearing officer's error in this regard led to his second error, his ruling that the disputed provision is unambiguous. These are errors that the majority does not correct. See maj. op. at 377-78. Because the record does not support the hearing officer's findings and conclusions, and because the hearing officer did not employ the appropriate legal standards, I would reverse the decision of the court of appeals with instructions. I would require the agency to reopen the administrative proceeding, take additional evidence, and make a new determination applying the appropriate legal standards in order to ascertain the parties' intent regarding the disputed provision at the time of contract formation.\nL.\nA. The Hearing Officer's Ruling in Light of the Evidence\nThe hearing officer refused to consider evidence demonstrating the contract provision's ambiguity, and ruled evidence going to the intent of the parties at the time of contract formation to be inadmissible. The record demonstrates that (1) a similar provision to the Denver International Airport (DIA) contracts was in use in the Stapleton contracts and had achieved a recognized construction that bore on the parties' intent at the time of DIA contract formation; and (2) Denver unilaterally changed this construction following execution of the DIA contracts. The undetermined issue in this case, which should be the subject of this court's remand order, is what the parties intended in regard to the phrase \"such statement shall be prepared and certified to be true and correct by an independent certified. public accountant.\"\nThis provision appears in a six-paragraph portion of the contract dealing with financial record-keeping by concessionaires. This contract portion is captioned \"Books of Account and Auditing.\" It addresses the concessionaire's responsibility to keep within the City and County of Denver \"true and complete records and accounts of all Gross Revenues and business transacted, including bank deposits.\" Not later than February 28 of each year the concessionaire is to furnish Denver with a true and accurate statement of the total of all revenues and business transacted during the preceding calendar year. The concessionaire agrees to establish and maintain a system of bookkeeping satisfactory to the City Auditor. Denver's Manager of Aviation has access during normal business *379hours to the concessionaire's books and ree-ords. The concessionaire is also required to keep and preserve for at least three years all sales slips, cash register tapes, sales books, bankbooks or duplicate deposit slips, and all other evidence of gross revenues and business transacted for such period. The City Auditor and the Manager of Aviation, or their authorized representatives, \"shall have the right at any time to audit all of the books of account, bank statements, documents, ree-ords, returns, papers and files\" of the concessionaire. Denver has the right to require the concessionaire to install point-of-sale cash register equipment. If, after an audit, Denver determines that the gross revenues and business transacted were understated more than three percent for the year, the concessionaire must then pay for the audit, as well as the amount of the deficiency, plus interest on the deficiency amount at eighteen percent per annum from the date due. Denver's right to perform an audit expires three years after the concessionaire's statement for that year is delivered to Denver. The concessionaire agrees that the City Auditor and the Manager of Revenue may inspect any sales tax return or report, and accompanying schedules and data, filed with Denver. The concessionaire waives any claim of confidentiality in connection therewith.\nThe language in question, \"Such statement shall be prepared and certified as true and correct by an independent certified public accountant,\" refers to the annual \"true and accurate statement of the total of all revenues and business transacted during the preceding calendar year.\" The word \"audit\" appears only in the provisions which allow the City Auditor and the Manager of Aviation to conduct an audit of the financial records the concessionaire is required to keep, and charge the costs of the audit to the concessionaire if the statement for the year is understated by more than three percent.\nThe parties do not dispute that the Staple-ton contracts had similar language concerning certified public accountant (CPA) certification and that principles and standards of CPAs do not allow them to certify a client's statement as being true and correct. Accordingly, the City allowed company officers to certify that the annual statements were true and correct.\nDIA's concessionaires executed contracts, with Denver, containing the Stapleton-type language in 1998, as they prepared for the opening of DIA. On April 5, 1996, the Manager of Aviation issued a memorandum to concessionaires entitled: \"Clarification of Contract Language Annual Statement of Revenue and Business Transacted.\" This memorandum stated:\nQuestions have arisen regarding the interpretation of this language. The phrase \"certified to be true and correct by an independent certified public account(ant)\" means, or will be satisfied by, a report from an independent CPA after the CPA has audited the statement of revenues and business transacted. /\n(Emphasis added.)\nRecognizing that no CPA would issue the certification specified in the Stapleton and DIA contracts, Denver thus chose to substitute, after the DIA contracts were executed, a yearly CPA audit requirement for its prior acceptance of company officer certification. Ms. Debra Lynn DeMuth, Denver's Manager of Finance at DIA, testified before the hearing officer that the language of the disputed provision did not mean what it says:\nQ: And you are aware of the fact that it is not in compliance with generally accepted accounting principles and generally accepted auditing standards for an independent certified public accountant to certify a statement of gross revenues as being true and correct.\nA: That language, per se, cannot be used.\nShe also testified that the concessionaires at Stapleton were not required to submit annual statements certified in any manner by CPAs and that certain businesses at DIA would not be required to have the new annual CPA audits required of other concessionaires.\nMr. D.C. Kiyemba, Audit Supervisor at DIA, also testified that annual audit statements from CPAs were not required for the Stapleton concessionaires despite similar contract language that required CPA certification:\n*380Q: And from the independent concesgion-aires, or from all the concessionaires at Stapleton Airport, you never required annual statements from CPAs, did you?\nA: I personally?\nQ. Yes.\nA. No.\nQ. If you had received a statement of gross revenues for a concessionaire at Stapleton Airport that was merely signed off on by an officer of the company, that was acceptable to you, was it not?\nA. Yes.\nThe record demonstrates that the expectation of DIA concessionaires at the time of contract formation did not include the later-'imposed annual CPA audit requirement. Nevertheless, the hearing officer adopted Denver's reinterpretation of the contract language as being within the plain meaning of the contract. The evidence does not support this conclusion, as Denver was aware before the DIA contracts were executed that the CPA certification language could not mean what it said in light of principles and standards of the public accounting profession.\nAccordingly, the evidence demonstrates that the disputed provision is ambiguous, not on its face, but because of a latent ambiguity. The hearing officer overlooked the doctrine of latent ambiguity, as does the majority.\nB. Latent Ambiguity\n1 conclude that a latent ambiguity exists in the disputed provision of section 5.07 of the contract. The hearing officer should have considered extrinsic evidence to determine the intent of the parties as to the disputed provision at the time of the contract's formation. As the majority states, the primary goal of contract interpretation is to determine and give effect to the intent of the parties. See USI Properties East, Inc. v. Simpson, 938 P.2d 168, 173 (Colo.1997). We must implement the clear terms of the agreement if the language of the contract is plain and unambiguous. See id. Thus, the threshold inquiry under this rule is whether the contract is ambiguous.\nThere are two different types of ambiguities. A patent ambiguity appears on the face of a document and arises from the language itself. See In re Estate of Gross, 646 P.2d 396, 397 (Colo.App.1981); Black's Law Dictionary 80 (7th ed.1999). A latent ambiguity exists where the language of the document, although clear on its face, is susceptible to more than one meaning. See Environmental Defense Fund, Inc. v. Colorado Dep't of Health, 781 P.2d 773, 776 (Colo.App.1986); Gross, 646 P.2d at 397. The doctrine of latent ambiguity comes into play only if someone who read the contract without knowledge of its real-world context of application would think it clear. See Rossetto v. Pabst Brewing Co., 217 F.3d 539, 548 (7th Cir.2000).\nIn deciding whether a contract is ambiguous, \"a steadily increasing number of courts have disavowed the plain meaning rule and have recognized the necessity of viewing extrinsic evidence.\" 5 Margaret N. Kniffin, Corbin on Contracts § 24.7, at 34 (rev. ed.1998). In Colorado, we have adopted this more flexible approach. We may consider extrinsic evidence bearing on the meaning of the written terms such as evidence of local usage and of the circumstances surrounding the making of the contract. See Lazy Dog Ranch v. Tellwray Ranch Corp., 965 P.2d 1229, 1235 (Colo.1998) (holding that extrinsic evidence may be introduced to determine whether a deed is ambiguous); Fire Ins. Exch. v. Rael, 895 P.2d 1139, 1143 (Colo.App.1995) (holding that extrinsic evidence may be introduced to determine whether the term in an insurance policy is ambiguous). However, we may not consider the parties' own extrinsic expressions of intent. See Fire Ins. Exch., 895 P.2d at 1148. In addition, if we ultimately determine that the document is unambiguous, the conditionally admitted evidence must be stricken. See Lazy Dog Ranch, 965 P.2d at 1235.\nOn its face, the disputed provision appears to be unambiguous-the revenue statements are required to be prepared and certified as true and correct by an independent CPA. In interpreting the contract, however, it is clear that this provision is indeed ambiguous. The evidence presented clearly shows that CPAs *381are not permitted to use the words \"certify\" or \"true and correct.\" The provision is unenforceable as written and thus the plain language can not be the meaning intended by the parties.\nIn addition to the fact that the contract cannot be enforced as written, the circumstances surrounding the making of the contract provide ample support for the conclusion that an ambiguity exists. The hearing officer and the majority fail to consider this extrinsic evidence in determining that no ambiguity exists. The Stapleton contracts, which contained the same exact language as the contracts in dispute here, were interpreted very differently from the interpretation suggested by the plain language of the provision. Denver had not required the Stapleton concessionaires to provide Denver with revenue statements prepared by an independent CPA. Instead, Denver had historically accepted statements certified to be true and correct by the concessionaires' officers and owners, often without input or review by a CPA. Such cireumstances clearly demonstrate that an ambiguity exists with regard to section 5.07s provisions. '\nOnee an ambiguity is found, it should be resolved by giving effect to the intent of the parties. See Fire Ins. Exch., 895 P.2d at 1143; Duncan v. Eagle Rock Gold Mining & Reduction Co., 48 Colo. 569, 582, 111 P. 588, 598 (1910). Interpretation of the intent of the parties in an ambiguous contract becomes an issue of fact for the trial court to decide in the same manner as other disputed factual issues. See Fire Ins. Exch., 895 P.2d at 1143; Union Rural Elec. Ass'n v. Public Utils. Comm'n, 661 P.2d 247, 251 n. 5 (Colo.1983). After a contract is deemed ambiguous the trial court may use extrinsic evidence to assist it in ascertaining the intent of the parties. See Cheyenne Mountain Sch. Dist. # 12 v. Thompson, 861 P.2d 711, 715 (Colo.1993). Facts existing at the time the contract was formed, and prior thereto, may be proved by parol evidence. See Duncan, 48 Colo. at 582, 111 P. at 593.\nHere, the hearing officer should have examined the extrinsic evidence available to determine what the parties intended by including the disputed provision in section 5.07 of their contract. In determining the parties' intent, the hearing officer should also have considered \"two well established principles governing the interpretation of contracts.\" Christmas v. Cooley, 158 Colo. 297, 302, 406 P.2d 333, 336 (1965). First, in case of doubt, a contract is construed most strongly against the party that drafted it. See id. Second, where doubt exists as to the proper construction of a given clause, it should be construed in favor of the party for whose protection it was obviously inserted. See id.\nFactual development of the case in regard to the parties' intent at the time of contracting should determine which of these seemingly contradictory principles of contract construction is applicable to this case. As a matter of law, the majority chooses an interpretation that favors Denver. It reaches this conclusion based on the assumption that the most important aspect of the disputed provision is the involvement of a CPA. See maj. op. at 876-78. On the other hand, another credible assumption based on Denver's past acceptance of officer certification of the annual revenue statement is that Denver considered the certification of truth and accuracy to be more important than CPA involvement. Because Denver can protect itself through the audit provision that is available for use by the Manager of Aviation and the City Auditor, the principle that the contract should be construed against the city as drafter may prevail.\nWe ought not to conclude that a provision is unambiguous when the actions of Denver, the drafter, demonstrate that it is ambiguous. Denver's 1996 memorandum requiring a CPA audit to be completed, instead of the officer certification previously acceptable, would not have been necessary if the disputed provision were unambiguous.\nIL.\nAccordingly, I respectfully dissent and would remand this case to the hearing officer for further fact finding and determination on the issue of the parties' intent in regard to the disputed provision at the time of contracting.\n",
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Supreme Court of Colorado
|
Supreme Court of Colorado
|
S
|
Colorado, CO
|
1,545,970 | null | 2010-02-09 | false |
bayview-medical-center-v-carr
|
Carr
|
BAYVIEW MEDICAL CENTER v. Carr
| null | null | null | null | null | null | null | null | null | null | null | null | 0 |
Published
| null | null |
[
"988 A.2d 1008",
"412 Md. 494"
] |
[
{
"author_str": null,
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"type": "010combined",
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"opinion_text": "\n988 A.2d 1008 (2010)\n412 Md. 494\nBAYVIEW MEDICAL CENTER\nv.\nCARR.\nPet. Docket No. 487.\nCourt of Appeals of Maryland.\nGranted February 9, 2010.\nPetition for writ of certiorari granted.\n",
"ocr": false,
"opinion_id": 1545970
}
] |
Court of Appeals of Maryland
|
Court of Appeals of Maryland
|
S
|
Maryland, MD
|
1,480,871 | null | 2009-08-06 | false |
in-re-adopt-of-mjs
|
In Re Adopt. of Mjs
|
In Re Adopt. of Mjs
| null | null | null | null | null | null | null | null | null | null | null | null | 0 |
Published
| null | null |
[
"984 A.2d 1027"
] |
[
{
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"type": "010combined",
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"opinion_text": "\n984 A.2d 1027 (2009)\nIN RE ADOPT. OF M.J.S.\nNo. 135 WDA 2009.\nSuperior Court of Pennsylvania.\nAugust 6, 2009.\nAffirmed.\n",
"ocr": false,
"opinion_id": 1480871
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Superior Court of Pennsylvania
|
Superior Court of Pennsylvania
|
SA
|
Pennsylvania, PA
|
571,164 | null | 1991-10-24 | false |
gambino-v-chevron-usa
|
Gambino
|
Gambino v. Chevron, U.S.A.
| null | null | null | null | null | null | null | null | null | null | null | null | 1 |
Published
| null | null |
[
"947 F.2d 1487"
] |
[
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": "http://bulk.resource.org/courts.gov/c/F2/947/947.F2d.1487.91-3412.html",
"author_id": null,
"opinion_text": "947 F.2d 1487\n Gambinov.Chevron, U.S.A.*\n NO. 91-3412\n United States Court of Appeals,Fifth Circuit.\n OCT 24, 1991\n \n Appeal From: E.D.La.\n VACATED.\n \n \n \n *\n Fed.R.App.P. 34(a); 5th Cir.R. 34.2\n \n \n ",
"ocr": false,
"opinion_id": 571164
}
] |
Fifth Circuit
|
Court of Appeals for the Fifth Circuit
|
F
|
USA, Federal
|
2,599,674 |
Alarid, Fry, Ira, Joseph, Robinson
| 2006-01-12 | false |
selmeczki-v-new-mexico-department-of-corrections
|
Selmeczki
|
Selmeczki v. New Mexico Department of Corrections
|
Stephen SELMECZKI, Petitioner-Appellant, v. NEW MEXICO DEPARTMENT OF CORRECTIONS, Respondent-Appellee
|
L. Helen Bennett, P.C., L. Helen Bennett, Albuquerque, NM, for Appellant., New Mexico Department of Corrections, James R. Bx*ewster, Deputy General Counsel, Santa Fe, NM, for Appellee.
| null | null | null | null | null | null | null | null | null | null | 1 |
Published
| null |
<citation id="b154-11" pgmap="154">
2006-NMCA-024
</citation><citation id="A68A" pgmap="154">
129 P.3d 158
</citation><br><parties id="b154-12" pgmap="154">
Stephen SELMECZKI, Petitioner-Appellant, v. NEW MEXICO DEPARTMENT OF CORRECTIONS, Respondent-Appellee.
</parties><br><docketnumber id="b154-15" pgmap="154">
No. 24,646.
</docketnumber><br><court id="b154-16" pgmap="154">
Court of Appeals of New Mexico.
</court><br><decisiondate id="b154-17" pgmap="154">
Jan. 12, 2006.
</decisiondate><br><attorneys id="b156-14" pgmap="156">
L. Helen Bennett, P.C., L. Helen Bennett, Albuquerque, NM, for Appellant.
</attorneys><br><attorneys id="b156-15" pgmap="156">
New Mexico Department of Corrections, James R. Bx*ewster, Deputy General Counsel, Santa Fe, NM, for Appellee.
</attorneys>
|
[
"129 P.3d 158",
"139 N.M. 122",
"2006 NMCA 024"
] |
[
{
"author_str": "Fry",
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": null,
"author_id": null,
"opinion_text": "\n129 P.3d 158 (2006)\n139 N.M. 122\n2006-NMCA-024\nStephen SELMECZKI, Petitioner-Appellant,\nv.\nNEW MEXICO DEPARTMENT OF CORRECTIONS, Respondent-Appellee.\nNo. 24,646.\nCourt of Appeals of New Mexico.\nJanuary 12, 2006.\n*160 L. Helen Bennett, P.C., L. Helen Bennett, Albuquerque, NM, for Appellant.\nNew Mexico Department of Corrections, James R. Brewster, Deputy General Counsel, Santa Fe, NM, for Appellee.\n\nOPINION\nFRY, Judge.\n{1} Stephen M. Selmeczki (Worker) appeals the termination of his employment with the Department of Corrections (the Department), which both the Personnel Board and the district court affirmed. The termination resulted from accusations that Worker slapped coins at the Secretary and Deputy Secretary of Corrections and cursed at them in relation to a lack of pay raises for correctional officers. We conclude that the record in this case is sufficient to support the termination of Worker for intentional misconduct and such termination is consistent with New Mexico case law. Therefore, we reject Worker's contention that progressive discipline was required prior to termination of his employment where he engaged in intentional, hostile, and unprovoked conduct approaching a physical fight. We also conclude that Worker's argument that he had no notice of what behavior could result in termination was neither preserved for our review nor supported by authority.\n\nI. FACTUAL BACKGROUND\n{2} We begin with uncontested background facts and then present the conflicting testimony given before the Personnel Board Administrative Law Judge (ALJ) regarding the confrontation itself. Our review of an administrative agency's findings of fact involves whole record review, Regents of University of New Mexico v. New Mexico Federation of Teachers, 1998-NMSC-020, ¶ 17, 125 N.M. 401, 962 P.2d 1236, so we recount testimony that is both favorable and unfavorable to Worker.\n{3} At the time of his termination, Worker, who held the rank of sergeant, had been employed by the Department for approximately thirteen years and had received favorable job reviews and commendations. Worker had not been disciplined previously, except for one incident in relation to overtime, and that discipline had been rescinded by the Department. Worker presented evidence that he had previously been a labor activist or advocate for better pay and conditions for correctional officers.\n{4} On May 9, 2000, Secretary of Corrections Robert J. Perry and Deputy Secretary John Shanks were at the Central New Mexico Correctional Facility (Central) for meetings and conducted an inspection tour of the facility. An associate warden at Central, Warden Langston, testified he personally notified Worker in advance about the tour by Perry and Shanks and told Worker to ensure that things were running smoothly. Langston testified that Worker said something *161 like, \"I will tell him exactly how I feel,\" or \"[w]hat I'm thinking.\"\n{5} Toward the end of the tour, Perry and Shanks entered a security office where Worker and correctional officer Howard Houston were located. Shanks testified that it was his intention, in keeping with his practice, to greet the two officers. From this point forward, testimony describing the interaction between Worker, Perry, and Shanks is conflicting.\n{6} We begin with the viewpoint of Perry and Shanks as the version least favorable to Worker. Perry recounted that he greeted Houston, who was polite but seemed nervous, while Shanks approached Worker. Worker refused Shanks's offered handshake. When Perry moved to greet Worker, Worker rose up part way from a seated position behind a desk and forcefully slapped a stack of five to ten coins toward both visitors, which resulted in the coins striking them both on the legs. Perry testified that after the coins struck him, he asked Worker, \"What's that all about?\" and that Worker replied, \"That's for our fucking raises.\" Shanks also testified that Worker said, \"That's for our fucking raises.\" Perry then asked the others to leave the room so that only he, Shanks, and Worker remained. Again, Perry asked what this was all about and Worker replied, \"That's how much you're fucking worth to us.\" Perry testified that he was defensive and concerned that a physical fight would take place and described Worker as angry. Shanks testified that, but for his position and self control, he could have responded physically to this provocation. Perry told Worker that he should consider looking for another job if he behaved so unprofessionally, to which Worker replied with something similar to, \"I like my job,\" and \"I don't care who you are.\" At this point, Perry attempted to describe his efforts to obtain pay raises for officers, to which Worker replied, \"I don't believe you.\" Shanks told Worker that his behavior was a disgrace to the Department, to which Worker replied, \"You're a disgrace, too.\" At this point, the interaction ended when either Shanks or Perry opened the office door, allowing re-entry of those waiting just outside. Perry told Langston to place Worker on administrative leave. Perry testified that inmates were nearby during the confrontation.\n{7} Worker's version of these events is strikingly different. Worker denied slapping or striking the coins at Perry and Shanks but claimed that he only \"nudged or dropped\" them off the desk, a gesture he admitted was probably \"not prudent.\" He denied any advance planning, claiming it was a \"spur of the moment\" act. He said he had only been planning to ask Perry about officers being allowed to observe National Correctional Officers Day. He also denied cursing at Perry, saying that he had said, \"thanks for our pay raise,\" in a normal, conversational tone, remaining calm and using no profanity. Worker testified that it was only Perry and Shanks who were angry and hostile, that Perry raised his voice and Shanks was \"trying to crowd me.\" He could not understand why they were so upset. Worker had previously claimed in a statement provided to a department investigator that he had dropped the coins for \"some reason, still unknown to me,\" but on cross examination he stated that, upon reflection, \"it became clear\" to him that he was \"indignant\" at the time over the lack of a pay raise. Worker testified that at the time of the incident, he was a supervisor in the minimum restrict unit portion of Central.\n{8} Others who were in the security office at the time also testified. Houston, who had been seated nearby, testified that Worker had dropped the coins, not slapped them, and had not cursed, but only sarcastically said, \"Thanks for my raise.\" Houston said that Perry and Shanks went \"into an uproar about the whole deal\" and that it was Perry who raised his voice and was angry. On cross examination, Houston admitted that Worker was a \"good guy,\" a work friend, and his supervisor, and that Houston admired what Worker had done. Houston also admitted to being unhappy working at the Department and was contemplating resigning. Captain Bill Marez testified that he was standing behind Perry and Shanks when he heard the coins strike the floor. He heard Perry say something like, \"What was that for?\" and heard Worker, who he described as angry with a red face, say in a raised voice, *162 \"That's what I think of your raise,\" but did not recall any profanity. Finally, Langston testified that he saw Worker swipe the coins at Perry and Shanks and saw the coins strike them in the legs. Langston thought that he heard Worker say, \"That's what I think of your fucking raise,\" although he had excluded the profanity from his prior descriptions and was \"not one hundred percent\" sure that Worker had used profanity.\n{9} The warden at Central, Ron Lytle, testified that he asked Worker what had happened immediately after the incident. Both Lytle and Langston testified that Worker replied, \"I did what I had to do and now you have to do what you have to do.\" Worker denied saying this, but claimed instead that he \"didn't understand why they were so upset\" and \"didn't know what was going on\" so he \"had nothing to say.\" After the incident, Langston took Worker's official identification, and senior staff, including Perry and Shanks, escorted Worker from the facility. Lytle placed Worker on administrative leave. After receiving statements from witnesses and providing Worker with an oral response hearing, Lytle issued a notice of final action dismissing Worker from the Department.\n\nII. PROCEDURAL POSTURE\n{10} Worker appealed his termination to the Personnel Board. The Personnel Board's ALJ conducted a two-day hearing, at which Worker testified and was represented by counsel. The parties stipulated that the Personnel Board had jurisdiction over Worker's appeal and thus agree that Worker was a classified state employee subject to the Personnel Act. See NMSA 1978, §§ 10-9-1 to -25 (1961, as amended through 1999). The ALJ made findings of fact that Worker had forcefully struck the coins at Perry and Shanks and had cursed at them. The ALJ also made conclusions of law that Worker's actions violated the Department's code of ethics, that dismissal of Worker was justified without the need for progressive discipline, and that Worker's speech was not protected by the First Amendment. Worker filed exceptions to the ALJ's recommended decision with the Personnel Board. The Personnel Board, however, adopted the ALJ's findings and conclusions and affirmed Worker's dismissal. Worker appealed to the district court under Section 10-9-18(G) (allowing appeals of Board decisions), NMSA 1978, 39-3-1.1(C) (1999) (permitting judicial review of final administrative agency decisions), and Rule 1-074 NMRA (governing administrative appeals to the district court). The district court affirmed Worker's termination.\n{11} Worker timely sought a writ of certiorari from this Court, which we granted. See § 39-3-1.1(E) (permitting a party to petition the Court of Appeals for a writ of certiorari to review the district court's decision in an administrative appeal); Rule 12-505(B) NMRA (same).\n\nIII. DISCUSSION\n{12} We first set out the standard of review applicable to appeals of administrative decisions. We then address Worker's contention that progressive discipline was mandatory in this case as a matter of law. Finally, we address Worker's claim as to lack of notice, and his connected arguments on disparate discipline, the paramilitary structure of the Department, and civil battery.\n\nA. Standard of Review\n{13} In reviewing a decision of the Personnel Board, we apply a whole-record standard of review. Martinez v. N.M. State Eng'r Office, 2000-NMCA-074, ¶ 31, 129 N.M. 413, 9 P.3d 657. \"Like the district court, we independently review the entire record of the administrative hearing to determine whether the Board's decision was arbitrary and capricious, not supported by substantial evidence, or otherwise not in accordance with law.\" Id. An administrative ruling is arbitrary and capricious if it is \"unreasonable or without a rational basis, when viewed in light of the whole record,\" and we must avoid substituting our own judgment for that of the agency. Archuleta v. Santa Fe Police Dep't, ex rel., City of Santa Fe, 2005-NMSC-006, ¶ 17, 137 N.M. 161, 108 P.3d 1019. Whether the Board's actions were contrary to law is a question that we review de novo. Id. ¶ 18. The burden is on the party challenging the agency decision to *163 demonstrate grounds for reversal. Regents of Univ. of N.M., 1998-NMSC-020, ¶ 17, 125 N.M. 401, 962 P.2d 1236.\n\nB. Just Cause And Progressive Discipline\n{14} Worker contends that progressive discipline was required in his case. We begin by reviewing the concept of just cause for discipline and then discuss progressive discipline.\n{15} Employees subject to the Personnel Act who have completed a probationary period may only be disciplined for just cause. 1 NMAC 7.11.10(A) (2002). Our review necessarily includes an evaluation of whether just cause existed for discipline, including termination, because the Board \"must decide whether agency action was based on just cause\" and we are reviewing the Board's action. Gallegos v. N.M. State Corrs. Dep't, 115 N.M. 797, 802, 858 P.2d 1276, 1281 (Ct.App.1992) (internal quotation marks and citation omitted). Just cause to terminate an employee covered by the Personnel Act requires that the Board determine both that the employee engaged in misconduct and that the discipline was appropriate and reasonable in light of the misconduct. Martinez, 2000-NMCA-074, ¶ 30, 129 N.M. 413, 9 P.3d 657. Just cause to terminate exists \"when an employee engages in behavior inconsistent with the employee's position and can include, among other things, incompetency, misconduct, negligence, insubordination, or continuous unsatisfactory performance.\" Id. ¶ 32; see also 1 NMAC 7.11.10(B) (defining just cause similarly). The question of whether behavior \"constituted misconduct so as to provide `just cause' for the discipline of a state employee is a question of fact to be determined from all the attendant circumstances in each case.\" Romero v. Employment Sec. Dep't, 102 N.M. 71, 74, 691 P.2d 72, 75 (Ct.App.1984). We review an agency's findings by examining the entire record, but we must affirm a decision if it is supported by substantial evidence. Regents of Univ. of N.M., 1998-NMSC-020, ¶ 17, 125 N.M. 401, 962 P.2d 1236.\n{16} The ALJ found that progressive discipline was not required for Worker's \"egregious action\" that provided just cause for termination. We agree. The findings were supported by substantial evidence, and they support the determination that just cause existed to terminate Worker without first employing lesser forms of discipline.\n{17} The evidence as to Worker's behavior in the security office was conflicting. Worker's testimony was self-serving overall, and the record fairly supports an inference that Worker was untruthful. See Gallegos, 115 N.M. at 801, 858 P.2d at 1280 (concluding that no substantial evidence supported a finding of misconduct where no evidence existed to support an inference that the employee was untruthful). Houston's testimony supporting Worker was effectively impeached. Perry and Shanks both told identical stories and were in the best position to see and hear Worker. Langston and Marez, who were nearby, generally supported the version recounted by Perry and Shanks, but were either unsure of or could not recall the use of profanity. Langston's testimony supported the notion that Worker was aware of the tour and was planning some type of confrontation. On the other hand, Worker contended that he had been a labor activist and advocate for better pay and hours for correctional officers, contending that this could motivate retaliation by the Department against him. In this case, however, such evidence cuts both ways not only is it a potential motivation for the Department to fire him, but his pro-labor activities also provide a plausible motive for the very misconduct of which Worker was accused. Based upon the entire record, there was substantial evidence for the fact finder in this case to have found that Worker cursed at Perry and Shanks and deliberately slapped or struck the coins, causing them to strike Perry and Shanks.\n{18} Having determined that the findings are properly supported, we further conclude that the ALJ correctly applied the law to the facts in deciding that just cause existed for termination without the need for progressive discipline. Both the Personnel Board Rules and the Department's own rules promote the concept of progressive discipline, which means that increasing levels of discipline should be used in an effort to retain the *164 employee and to correct deficient performance or behavior. See 1 NMAC 7.11.8(B) (2001) (stating that progressive discipline \"shall be used whenever appropriate\"). Progressive discipline, however, need not be used in all cases. Id. (stating that \"[t]here are instances when a disciplinary action, including dismissal, is appropriate without having imposed a less severe form of discipline\"). The Department's own rules state that \"some misconduct is so severe as to not warrant progressive discipline and immediate dismissal is the only appropriate action.\"\n{19} Several New Mexico cases have evaluated progressive discipline and its relation to the concept of just cause for discipline. In accord with the Board rules, our cases have \"recognized that progressive discipline is not required before termination when the conduct for which an employee is terminated constitutes just cause to terminate.\" Martinez, 2000-NMCA-074, ¶ 42, 129 N.M. 413, 9 P.3d 657. The question then becomes precisely what conduct provides just cause to terminate, which again requires a case-by-case evaluation. Romero, 102 N.M. at 74, 691 P.2d at 75.\n{20} Other cases provide guidance in this evaluation. In the context of a denial of unemployment insurance benefits, our Supreme Court has focused on the importance of willful misconduct contrasted with simply poor performance, concluding that an employer had to show compliance with progressive discipline policies where only unsatisfactory job performance was at issue and there was no substantial evidence to support a finding of willful misconduct. Chicharello v. Employment Sec. Div., 1996-NMSC-077, ¶ 4, 122 N.M. 635, 930 P.2d 170. The case of New Mexico Regulation & Licensing Department v. Lujan, 1999-NMCA-059, 127 N.M. 233, 979 P.2d 744, teaches that socially inappropriate conduct may not rise to the level of just cause for termination, particularly where there is a culture of misbehavior. There, a worker had engaged in a pattern of \"foul language, sexually charged misconduct, and outbursts of anger.\" Id. ¶ 2. The hearing officer in that case found the conduct was demeaning and disrespectful, but found no just cause for dismissal in light of \"other conduct occurring at the office, all of it attributable to lack of effective management.\" Id. ¶¶ 4, 18, 19 (internal quotation marks omitted). We agreed, based upon the whole record, that there was no just cause for dismissal and that progressive discipline was required. Id. ¶ 21. Martinez, on the other hand, instructs that hostile or threatening behavior clearly provides just cause for termination. In Martinez, a worker failed to control his mental illness and became erratic and threatening at work, including threatening the life of a supervisor over the telephone. 2000-NMCA-074, ¶¶ 9-15, 129 N.M. 413, 9 P.3d 657. There, we noted that the employee was dismissed for \"insubordination, misconduct, and threats of physical violence against his supervisor, all of which clearly fall within the category of conduct constituting just cause for dismissal.\" Id. ¶ 42. We found there that the conduct in question was \"the type of serious `misconduct' which does not have to be tolerated by an employer and which justifies immediate dismissal.\" Id. We have held that \"the term `misconduct' as contemplated by the rule is not limited to circumstances of intentional wrongdoing, but also embraces an employee's disregard of proper behavior which an employer has a right to expect of an employee.\" Romero, 102 N.M. at 74, 691 P.2d at 75. Our cases have also expressly noted that supervisory staff clearly affect the efficiency of the agency and serve as examples for subordinates. Id. Finally, our Supreme Court has recently stated that we must be properly deferential to the internal disciplinary practices of an agency. Archuleta, 2005-NMSC-006, ¶ 28, 137 N.M. 161, 108 P.3d 1019 (stating that \"[t]he propriety of a disciplinary measure meted out by [an agency] is a matter of internal administration with which a court should not interfere absent a clear abuse of authority\" (internal quotation marks and citation omitted)).\n{21} Based upon the foregoing, it is clear that whether progressive discipline was required turns on whether there was just cause for termination. We think just cause for termination was properly found for three reasons. First, unlike the circumstances in Lujan, here the hearing officer found just cause for dismissal and also did not find any *165 culture of misbehavior or mismanagement mitigating Worker's actions. 1999-NMCA-059, ¶ 18, 127 N.M. 233, 979 P.2d 744. The Personnel Board and the district court each affirmed this conclusion; while we independently determine whether just cause existed, we find it noteworthy that the ALJ, the Personnel Board, and district court all concluded that just cause for termination existed. We agree and, based upon the standard articulated in Archuleta, see no clear abuse of authority. Second, we see this case as more akin to Martinez, in which aggressive, threatening, and hostile behavior \"clearly fall[s] within the category of conduct constituting just cause for dismissal.\" 2000-NMCA-074, ¶ 42, 129 N.M. 413, 9 P.3d 657. Several factors inform this conclusion: (1) the confrontation was planned and intentional, (2) while Worker was on duty, (3) as a supervisor, (4) committing a civil battery on his superiors, (5) using hostile and foul language, and (6) all of which come close to causing a physical fight. We think these combine to overcome Worker's long positive record with the Department. Third, unlike Chicharello, here there is substantial evidence to support a finding of misconduct, and the Department was not attempting to correct merely unsatisfactory job performance. 1996-NMSC-077, ¶ 4, 122 N.M. 635, 930 P.2d 170. Worker engaged in misconduct, and the Department's response to that conduct was neither unreasonable, Martinez, 2000-NMCA-074, ¶ 30, 129 N.M. 413, 9 P.3d 657, nor a clear abuse of authority, Archuleta, 2005-NMSC-006, ¶ 28, 137 N.M. 161, 108 P.3d 1019. Because just cause existed to terminate Worker, progressive discipline was not necessary. Martinez, 2000-NMCA-074, ¶ 36, 129 N.M. 413, 9 P.3d 657 (stating that \"[o]nce it is determined that just cause exists to terminate, termination is appropriate under the Board Rules\"). In sum, we find no clear abuse of authority, no contravention of our law, and no capriciousness in the Personnel Board's determination that just cause existed to discipline Worker and to terminate him without imposing progressive discipline.\n\nC. Lack of Notice and Associated Arguments\n{22} Initially in his appeal to the Personnel Board, Worker claimed he was not on notice that his actions could result in termination. This reference to notice was also contained in the list of Worker's contested issues in the joint stipulated pre-hearing order. The Department contends that such an argument was not preserved for our review and also lacks merit. After thoroughly reviewing the record, we agree with the Department on these points. Worker recites lack of notice in the heading of his first issue on appeal to this Court, but cites no authority in reference to any notice requirement. Worker is not claiming a procedural right to notice, such as notice of the hearing or the allegations against him. Instead, we discern that the substance of his argument is aimed at making the following points: (1) that he was subjected to disparate discipline, (2) that the ALJ improperly relied on the purportedly paramilitary nature of the Department to find just cause for termination, and (3) that striking Perry and Shanks with the coins was not \"meaningfully\" a civil battery. We reject each contention in turn after discussing Worker's attempt to argue lack of notice.\n{23} We generally will not review a matter not passed upon by the trial court, which in this case was either the ALJ sitting as the trier of fact, or the Personnel Board as the ultimate decision maker. Rule 12-216(A) NMRA. While the formal rules of procedure need not all be followed in administrative proceedings, we do require preservation of issues raised on appeal from an administrative decision. Garza v. State Taxation & Revenue Dep't, 2004-NMCA-061, ¶¶ 7, 8, 135 N.M. 673, 92 P.3d 685 (evaluating whether an issue had been preserved in an administrative hearing). Worker made no notice argument before the ALJ or in his statement of exceptions to the Personnel Board. Indeed, in his opening statement, Worker stated that the case involved only \"three of the seven\" issues raised in the joint stipulated pre-hearing order. Notice was not one of the three arguments. The only argument in the hearing regarding notice was from the Department, not Worker. Worker may not preserve an argument raised by his opponent. Woolwine v. Furr's, Inc., 106 N.M. 492, 496, 745 P.2d 717, 721 (Ct.App. *166 1987) (stating that \"[t]o preserve an issue for review on appeal, it must appear that appellant fairly invoked a ruling of the trial court on the same grounds argued in the appellate court\" (emphasis added)). In fact, Worker expressly conceded that if the allegations were true, perhaps even severe discipline would be justified and at the hearing stated that notice, at least of the contents of the code of ethics, was \"not an issue.\"\n{24} We decline to review an issue when Worker did not invoke a ruling of the ALJ thereon. Moreover, even if this argument were preserved for our review, Worker provides no authority for his argument that he lacked notice of the border between acceptable and unacceptable behavior. This Court will not consider an argument that lacks citation to any legal authority in support of that argument. Santa Fe Exploration Co. v. Oil Conservation Comm'n, 114 N.M. 103, 108, 835 P.2d 819, 824 (1992).\n{25} Unlike his notice argument, however, Worker did seek to show that he was subjected to disparate discipline. In attempting to demonstrate this, he elicited the following testimony. First, Worker offered evidence that a correctional officer at Central had been coached (but not disciplined) for refusing to shake Perry's hand. Second, he obtained testimony that another officer had asked Perry, off-duty and in a noisy bar, an arguably provocative question and had inadvertently dropped a pitcher of beer near Perry. This did not result in any discipline and Perry denied that any beer was thrown on him. Finally, in response to testimony alluding to a purportedly similar incident, the Department introduced a letter showing that a correctional officer had been reprimanded for calling a higher ranking officer an \"idiot\" in the presence of others and leaving his post before the end of the shift. The ALJ found no disparate discipline, and there is substantial evidence supporting this finding.\n{26} We see none of these actions as substantially similar to Worker's because none involved the combination of hostile words and acts tending to provoke a physical altercation by an on-duty supervisor. As we have discussed, the findings provided just cause to dismiss Worker. Thus, Worker's reliance on disparate discipline cases is misplaced. See In re Termination of Kibbe, 2000-NMSC-006, ¶ 19, 128 N.M. 629, 996 P.2d 419 (holding that termination of a worker was arbitrary where there was a \"drastic difference\" in treatment of a worker compared to another for \"substantially similar\" conduct in the context of public school employees). And even where other officers are similarly situated, they may be disciplined differently based upon the severity of the conduct, the circumstances, and the consequences of the conduct. Archuleta, 2005-NMSC-006, ¶¶ 24, 32, 137 N.M. 161, 108 P.3d 1019 (explaining that \"[e]ven similarly situated employees may be disciplined differently depending on the severity of the conduct\" and summarizing New Mexico disparate discipline cases).\n{27} Next, we consider Worker's concern about the ALJ's reliance on the paramilitary nature of the Department. Warden Lytle, who had served in the Navy, described the paramilitary nature of the Department, including its adherence to a chain of command structure. He spoke at length about the need for obedience and respect in a prison's inherently dangerous environment and described the Department as \"very similar\" to the military. Lytle testified that it was his decision to dismiss Worker and his decision was based upon his fear that if he did not use the highest discipline then more similar incidents would occur, leading to a breakdown in staff cohesion, respect by inmates, and the ultimate safety and order within the facility. The ALJ found that the Department is a paramilitary organization and relied on this finding in its conclusion that just cause existed to terminate Worker. This finding was adopted by the Personnel Board.\n{28} We consider this finding superfluous and affirm without passing on this paramilitary argument for two reasons. First, we may affirm the ruling from below on a different ground, as long as doing so is not unfair to the appellant and there is substantial evidence supporting the ground we rely on. Meiboom v. Watson, 2000-NMSC-004, ¶ 20, 128 N.M. 536, 994 P.2d 1154. We *167 have already concluded that substantial evidence supports a finding that just cause for termination existed. We think the finding that the Department is paramilitary in style is of no consequence to an ultimate determination of just cause for discipline. Worker's arguments at the hearing disputed both the factual basis for discipline and the existence of just cause, so we see no unfairness to Worker in holding that just cause existed in a more generalized sense. Second, a finding that is irrelevant or not necessary to support the judgment may be disregarded. Martinez, 2000-NMCA-074, ¶ 43, 129 N.M. 413, 9 P.3d 657. Again, we conclude that the paramilitary basis was not essential to the conclusion that just cause existed. We recognize that the ALJ may have concluded that the prison environment demanded a higher degree of courtesy, respect, and obedience from Worker than would more traditional types of state work. However, we need not pass upon this question of paramilitary structure because we conclude that Worker's behavior would meet the standard of just cause for termination in any state organization. We express no opinion about whether the Department is or is not paramilitary in nature and the impact this may have on its disciplinary practice.\n{29} Finally, we are not persuaded by Worker's argument that he did not commit battery. Worker elicited testimony that no injury or harm was likely from the coins being launched at Perry and Shanks. Worker now argues that he did not \"meaningfully\" commit a civil battery. He is mistaken. It is black-letter law that causing an offensive touching, even indirectly to another's clothing and not resulting in injury, is the tort of battery. State v. Ortega, 113 N.M. 437, 440-41, 827 P.2d 152, 155-56 (Ct. App.1992) (describing tortious battery as including causing indirect contact with a person's clothing and applying these concepts to criminal battery). Worker's citation to criminal battery cases notwithstanding, his actions constituted a tort, and it was proper for the ALJ to have so found and used in its consideration of Worker's conduct.\n\nIV. CONCLUSION\n{30} The district court's decision affirming Worker's termination from the Department is affirmed.\n{31} IT IS SO ORDERED.\nWE CONCUR: A. JOSEPH ALARID and IRA ROBINSON, Judges.\n",
"ocr": false,
"opinion_id": 2599674
}
] |
New Mexico Court of Appeals
|
New Mexico Court of Appeals
|
SA
|
New Mexico, NM
|
130,740 | null | 2003-06-23 | false |
dyson-v-jones-warden
|
Dyson
|
Dyson v. Jones, Warden
| null | null | null | null | null | null | null | null | null | null | null | null | 0 |
Published
| null | null |
[
"539 U.S. 948"
] |
[
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": "http://bulk.resource.org/courts.gov/c/US/539/539.US.948.02-10399.html",
"author_id": null,
"opinion_text": "539 U.S. 948\n Dysonv.Jones, Warden, et al.\n No. 02-10399.\n Supreme Court of United States.\n June 23, 2003.\n \n 1\n Appeal from the C. A. 11th Cir.\n \n \n 2\n Certiorari denied.\n \n ",
"ocr": false,
"opinion_id": 130740
}
] |
Supreme Court
|
Supreme Court of the United States
|
F
|
USA, Federal
|
43,617 |
Anderson, Barkett, Birch, Per Curiam
| 2005-06-23 | false |
united-states-v-luis-caro
| null |
United States v. Luis Caro
|
UNITED STATES of America, Plaintiff-Appellee, v. Luis CARO, Defendant-Appellant
|
Jonathan D. Colan, Anne R. Schultz, U.S. Attorney’s Office, Emily Smachetti, Miami, FL, for Plaintiff-Appellee., Samuel J. Smargon, Federal Public Defender — So. Dist. of Fla., Fort Lauderdale, FL; and Kathleen M. Williams, Miami, FL, for Defendant-Appellant.
| null | null | null | null | null | null | null | null | null | null | 0 |
Unpublished
| null |
<parties data-order="0" data-type="parties" id="b250-15">
UNITED STATES of America, Plaintiff-Appellee, v. Luis CARO, Defendant-Appellant.
</parties><docketnumber data-order="1" data-type="docketnumber" id="Ai">
No. 04-15652.
</docketnumber><p data-order="2" data-type="misc" id="A3C">
Non-Argument Calendar
</p><docketnumber data-order="3" data-type="docketnumber" id="AUj">
D.C. Docket No. 04-60094-CR-WJZ.
</docketnumber><br><court data-order="4" data-type="court" id="b250-18">
United States Court of Appeals, Eleventh Circuit.
</court><br><decisiondate data-order="5" data-type="decisiondate" id="b250-19">
June 23, 2005.
</decisiondate><br><attorneys data-order="6" data-type="attorneys" id="b251-9">
<span citation-index="1" class="star-pagination" label="223">
*223
</span>
Jonathan D. Colan, Anne R. Schultz, U.S. Attorney’s Office, Emily Smachetti, Miami, FL, for Plaintiff-Appellee.
</attorneys><br><attorneys data-order="7" data-type="attorneys" id="b251-10">
Samuel J. Smargon, Federal Public Defender — So. Dist. of Fla., Fort Lauderdale, FL; and Kathleen M. Williams, Miami, FL, for Defendant-Appellant.
</attorneys><br><judges data-order="8" data-type="judges" id="b251-12">
Before ANDERSON, BIRCH and BARKETT, Circuit Judges.
</judges>
|
[
"138 F. App'x 222"
] |
[
{
"author_str": "Per Curiam",
"per_curiam": false,
"type": "010combined",
"page_count": 3,
"download_url": "http://www.ca11.uscourts.gov/unpub/ops/200415652.pdf",
"author_id": null,
"opinion_text": " [DO NOT 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 No. 04-15652 JUNE 23, 2005\n THOMAS K. KAHN\n Non-Argument Calendar\n CLERK\n ________________________\n D.C. Docket No. 04-60094-CR-WJZ\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff-Appellee,\n\n versus\n\nLUIS CARO,\n\n Defendant-Appellant.\n\n __________________________\n\n Appeal from the United States District Court for the\n Southern District of Florida\n _________________________\n (June 23, 2005)\n\nBefore ANDERSON, BIRCH and BARKETT, Circuit Judges.\n\nPER CURIAM:\n\n Luis Caro appeals his 87-month sentence, imposed after he pled guilty to\n\none count of conspiring to import one kilogram or more of heroin, in violation of\n\f21 U.S.C. §§ 952(a), 960(b)(1)(A), and 963. On appeal, Caro maintains that,\n\nunder Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435\n\n(2000), Blakely v. Washington, 542 U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403\n\n(2004), and United States v. Booker, 543 U.S. __, 125 S.Ct. 738 (2005), the\n\ndistrict court lacked the authority to enhance his sentence based on facts not\n\nreflected in a jury verdict or admitted by Caro. Caro contends that the sentencing\n\ncourt enhanced his offense level after determining that he possessed between three\n\nand ten kilograms of heroin, even though that amount was not charged in the\n\nindictment nor found by a jury beyond a reasonable doubt. Accordingly, Caro\n\nargues that his Fifth and Sixth Amendment rights were violated.\n\n “[A] constitutional objection that is timely. . . receives the benefit of\n\npreserved error review.” United States v. Candelario, 240 F.3d 1300, 1306 (11th\n\nCir. 2001). Because Caro objected below, both in his objections to the\n\npresentence investigation report (“PSI”) and again at sentencing, that the district\n\ncourt violated his Sixth Amendment rights under Blakely by calculating his\n\noffense level based on an amount of drugs to which he did not stipulate, he raised\n\na timely constitutional objection and is entitled to preserved error review. See id.\n\n We review preserved constitutional errors de novo, but “will reverse only\n\nfor harmful error.” See United States v. Sanchez, 269 F.3d 1250, 1272 (11th Cir.\n\n 2\n\f2002) (en banc). Non-constitutional error is harmless when it does not affect the\n\nsubstantial rights of the parties. See 28 U.S.C. § 2111; United States v. Guzman,\n\n167 F.3d 1350, 1353 (11th Cir.1999). Under this standard, we must reverse \"only\n\nif [the error] resulted in actual prejudice because it had substantial and injurious\n\neffect or influence\" on Caro’s sentence. See id. (internal quotation marks omitted);\n\nsee also Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239 (1946).\n\n There was error here because Caro was sentenced under a mandatory\n\nguidelines system.1 See United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir.\n\n2005). However, when the district court sentenced Caro, it sentenced Caro in the\n\nalternative to 87 months “strictly under the statute,” in the event that the Supreme\n\nCourt found the guidelines unconstitutional. The court's comment establishes that\n\nthe mandatory nature of the guidelines in place at the time of sentencing did not\n\naffect Caro's sentence. See United States v. Petho, __ F.3d __, 2005 WL 1160640\n\n(11th Cir. May 18, 2005) (finding error harmless because district court stated that it\n\nwould sentence to the same number of months if the guidelines were not binding).\n\nThus, we find that the Booker error was harmless.\n\n AFFIRMED.\n\n\n 1\n There was no constitutional error in this case because Caro admitted at his change of plea\nhearing the amount of drugs that was used to determine his offense level. See United States v. Petho,\n__ F.3d __, 2005 WL 1160640, at 2 n.1 (11th Cir. May 18, 2005).\n 3\n\f",
"ocr": false,
"opinion_id": 43617
}
] |
Eleventh Circuit
|
Court of Appeals for the Eleventh Circuit
|
F
|
USA, Federal
|
1,907,739 | null | 2005-10-07 | false |
south-florida-hotel-inc-v-hospitality-safe-corp
| null |
South Florida Hotel, Inc. v. Hospitality Safe Corp.
| null | null | null | null | null | null | null | null | null | null | null | null | 2 |
Published
| null | null |
[
"911 So. 2d 1249"
] |
[
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": null,
"author_id": null,
"opinion_text": "\n911 So. 2d 1249 (2005)\nSOUTH FLORIDA HOTEL, INC. v. HOSPITALITY SAFE CORP.\nNo. 3D05-1980.\nDistrict Court of Appeal of Florida, Third District.\nOctober 7, 2005.\nDecision without published opinion. Vol. dismissed.\n",
"ocr": false,
"opinion_id": 1907739
}
] |
District Court of Appeal of Florida
|
District Court of Appeal of Florida
|
SA
|
Florida, FL
|
1,489,446 | null | 2009-02-23 | false |
south-buffalo-township-v-rosebud-mining-company
| null |
South Buffalo Township v. Rosebud Mining Company
| null | null | null | null | null | null | null | null | null | null | null | null | 0 |
Published
| null | null |
[
"964 A.2d 986"
] |
[
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": null,
"author_id": null,
"opinion_text": "\n964 A.2d 986 (2009)\nSOUTH BUFFALO TOWNSHIP\nv.\nROSEBUD MINING COMPANY.\nNo. 892CD08.\nCommonwealth Court of Pennsylvania.\nFebruary 23, 2009.\nDecision without published opinion. Affirmed.\n",
"ocr": false,
"opinion_id": 1489446
}
] |
Commonwealth Court of Pennsylvania
|
Commonwealth Court of Pennsylvania
|
SA
|
Pennsylvania, PA
|
67,673 |
Carnes, Dubina, Fay, Per Curiam
| 2009-06-15 | false |
united-states-v-steven-ehrlich
| null |
United States v. Steven Ehrlich
|
UNITED STATES of America, Plaintiff-Appellee, v. Steven EHRLICH, Defendant-Appellant
|
Tracy M. Dreispul, Celeste S. Higgins, Kathleen M. Williams, Federal Public Defenders, Miami, FL, for Defendant-Appellant., Suzan H. Ponzoli, Anne R. Schultz, Kathleen M. Salyer, U.S. Attorney’s Office, Miami, FL, for Plaintiff-Appellee.
| null | null | null | null |
Non-Argument Calendar.
| null | null | null | null | null | 0 |
Unpublished
| null |
<parties data-order="0" data-type="parties" id="b244-11">
UNITED STATES of America, Plaintiff-Appellee, v. Steven EHRLICH, Defendant-Appellant.
</parties><docketnumber data-order="1" data-type="docketnumber" id="AaT">
No. 08-15950
</docketnumber><p data-order="2" data-type="summary" id="Al_">
Non-Argument Calendar.
</p><court data-order="3" data-type="court" id="ALI">
United States Court of Appeals, Eleventh Circuit.
</court><decisiondate data-order="4" data-type="decisiondate" id="Afu9">
June 15, 2009.
</decisiondate><br><attorneys data-order="5" data-type="attorneys" id="b244-18">
Tracy M. Dreispul, Celeste S. Higgins, Kathleen M. Williams, Federal Public De
<span citation-index="1" class="star-pagination" label="217">
*217
</span>
fenders, Miami, FL, for Defendant-Appellant.
</attorneys><br><attorneys data-order="6" data-type="attorneys" id="b245-5">
Suzan H. Ponzoli, Anne R. Schultz, Kathleen M. Salyer, U.S. Attorney’s Office, Miami, FL, for Plaintiff-Appellee.
</attorneys><br><judges data-order="7" data-type="judges" id="b245-7">
Before DUBINA, Chief Judge, CARNES and FAY, Circuit Judges.
</judges>
|
[
"334 F. App'x 216"
] |
[
{
"author_str": "Per Curiam",
"per_curiam": false,
"type": "010combined",
"page_count": 3,
"download_url": "http://www.ca11.uscourts.gov/unpub/ops/200815950.pdf",
"author_id": null,
"opinion_text": " [DO NOT PUBLISH]\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________ FILED\n U.S. COURT OF APPEALS\n No. 08-15950 ELEVENTH CIRCUIT\n JUNE 15, 2009\n Non-Argument Calendar\n THOMAS K. KAHN\n ________________________\n CLERK\n\n D. C. Docket No. 08-20202-CR-JAL\n\nUNITED STATES OF AMERICA,\n\n\n Plaintiff-Appellee,\n\n versus\n\nSTEVEN EHRLICH,\n\n Defendant-Appellant.\n\n\n ________________________\n\n Appeal from the United States District Court\n for the Southern District of Florida\n _________________________\n\n (June 15, 2009)\n\nBefore DUBINA, Chief Judge, CARNES and FAY, Circuit Judges.\n\nPER CURIAM:\n\f Appellant Steven Ehrlich appeals his conviction for knowingly and willfully\n\nusing, without lawful authority, the identification of another person during and in\n\nrelation to a felony, in violation of 18 U.S.C. § 1028A(a)(1).\n\n Ehrlich argues that 18 U.S.C. § 1028A(a)(1) requires that the government\n\nprove that he knew the identification information he used belonged to another\n\nperson, an argument we rejected in United States v. Hurtado, 508 F.3d 603 (11th\n\nCir. 2007), abrogated by Flores-Figueroa v. United States, 129 S. Ct. 1886 (2009).\n\nEhrlich contends that the stipulated facts at his bench trial did not establish that he\n\nacted with the requisite knowledge and asks that his conviction for violating 18\n\nU.S.C. § 1028A(a)(1) be vacated in light of the Supreme Court’s recent decision in\n\nFlores-Figueroa v. United States, 129 S. Ct. 1886 (2009).\n\n We review questions of statutory interpretation de novo. Hurtado, 508 F.3d\n\nat 607 n.5. “[T]o support a conviction under § 1028A(a)(1), the government must\n\nprove that the defendant: (1) knowingly transferred, possessed, or used; (2) the\n\nmeans of identification of another person; (3) without lawful authority; (4) during\n\nand in relation to a felony enumerated in § 1028A(c).” Id. at 606– 07. Previously,\n\nwe had held that the government did not need to prove that the defendant “knew\n\nthat the means of identification that he possessed and used belonged to another\n\nactual person.” Id. at 610. The Supreme Court, however, recently has held that §\n\n\n\n 2\n\f1028A(a)(1) requires the government “to show that the defendant knew that the\n\nmeans of identification at issue belonged to another person.” Flores-Figueroa, 129\n\nS. Ct. at 1894. We may “depart from a prior panel decision based upon an\n\nintervening Supreme Court decision only if that decision actually overruled or\n\nconflicted with it.” United States v. Marte, 356 F.3d 1336, 1344 (11th Cir. 2004)\n\n(quotation omitted). We remand for further proceedings where the district court\n\ndid not make findings of fact on an issue. See United States v. Barner, 441 F.3d\n\n1310, 1322 (11th Cir. 2006).\n\n Because the Supreme Court has now held that the government must show\n\nthe defendant knew the identification he used belonged to another person to sustain\n\na conviction under § 1028A(a)(1), we vacate Ehrlich’s conviction on that count\n\nand remand this case to the district court for it to determine in the first instance if\n\nEhrlich knew that the identification he used belonged to another person.\n\n VACATED and REMANDED.\n\n\n\n\n 3\n\f",
"ocr": false,
"opinion_id": 67673
}
] |
Eleventh Circuit
|
Court of Appeals for the Eleventh Circuit
|
F
|
USA, Federal
|
128,455 | null | 2003-03-31 | false |
iq-products-co-v-pennzoil-quaker-state-co
| null |
Iq Products Co. v. Pennzoil-Quaker State Co.
| null | null | null | null | null | null | null | null | null | null | null | null | 0 |
Published
| null | null |
[
"538 U.S. 944"
] |
[
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": "http://bulk.resource.org/courts.gov/c/US/538/538.US.944.02-1100.html",
"author_id": null,
"opinion_text": "538 U.S. 944\n IQ PRODUCTS CO.v.PENNZOIL-QUAKER STATE CO. ET AL.\n No. 02-1100.\n Supreme Court of United States.\n March 31, 2003.\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. Reported below: 305 F. 3d 368.\n \n ",
"ocr": false,
"opinion_id": 128455
}
] |
Supreme Court
|
Supreme Court of the United States
|
F
|
USA, Federal
|
402,803 | null | 1982-03-24 | false |
altizer-v-mitchell
|
Altizer
|
Altizer v. Mitchell
| null | null | null | null | null | null | null | null | null | null | null | null | 0 |
Published
| null | null |
[
"676 F.2d 690"
] |
[
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": "http://bulk.resource.org/courts.gov/c/F2/676/676.F2d.690.81-6031.html",
"author_id": null,
"opinion_text": "676 F.2d 690\n Altizerv.Mitchell\n 81-6031\n UNITED STATES COURT OF APPEALS Fourth Circuit\n 3/24/82\n \n 1\n E.D.Va.\n \n AFFIRMED\n ",
"ocr": false,
"opinion_id": 402803
}
] |
Fourth Circuit
|
Court of Appeals for the Fourth Circuit
|
F
|
USA, Federal
|
592,099 |
DeMOSS, Higginbotham, Smith
| 1992-11-06 | false |
anthony-g-guidry-v-halliburton-geophysical-services-inc-edison-chouest
| null |
Anthony G. Guidry v. Halliburton Geophysical Services, Inc., Edison Chouest Offshore, Inc., and Galliano Marine Services
|
Anthony G. GUIDRY, Plaintiff-Appellant, v. HALLIBURTON GEOPHYSICAL SERVICES, INC., Edison Chouest Offshore, Inc., and Galliano Marine Services, Defendants-Appellees
|
J.B. Jones, Jr. and Jennifer Jones Bercier, Jones, Jones & Alexander, Cameron, La., for plaintiff-appellant., Hollis Horton, Orgain, Bell & Tucker, Beaumont, Tex. and Frank E. Billings, Billings & Solomon, Houston, Tex., for defendants-appellees.
| null | null | null | null | null | null | null | null | null | null | 19 |
Published
| null |
<parties data-order="0" data-type="parties" id="b1020-5">
Anthony G. GUIDRY, Plaintiff-Appellant, v. HALLIBURTON GEOPHYSICAL SERVICES, INC., Edison Chouest Offshore, Inc., and Galliano Marine Services, Defendants-Appellees.
</parties><br><docketnumber data-order="1" data-type="docketnumber" id="b1020-8">
No. 92-4463
</docketnumber><p data-order="2" data-type="misc" id="AgA">
Summary Calendar.
</p><br><court data-order="3" data-type="court" id="b1020-9">
United States Court of Appeals, Fifth Circuit.
</court><br><decisiondate data-order="4" data-type="decisiondate" id="b1020-11">
Nov. 6, 1992.
</decisiondate><br><attorneys data-order="5" data-type="attorneys" id="b1021-19">
<span citation-index="1" class="star-pagination" label="939">
*939
</span>
J.B. Jones, Jr. and Jennifer Jones Bercier, Jones, Jones & Alexander, Cameron, La., for plaintiff-appellant.
</attorneys><br><attorneys data-order="6" data-type="attorneys" id="b1021-20">
Hollis Horton, Orgain, Bell & Tucker, Beaumont, Tex. and Frank E. Billings, Billings & Solomon, Houston, Tex., for defendants-appellees.
</attorneys><br><judges data-order="7" data-type="judges" id="b1021-22">
Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.
</judges>
|
[
"976 F.2d 938"
] |
[
{
"author_str": "Higginbotham",
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": "http://bulk.resource.org/courts.gov/c/F2/976/976.F2d.938.92-4463.html",
"author_id": null,
"opinion_text": "976 F.2d 938\n 1994 A.M.C. 301\n Anthony G. GUIDRY, Plaintiff-Appellant,v.HALLIBURTON GEOPHYSICAL SERVICES, INC., Edison ChouestOffshore, Inc., and Galliano Marine Services,Defendants-Appellees.\n No. 92-4463Summary Calendar.\n United States Court of Appeals,Fifth Circuit.\n Nov. 6, 1992.\n \n J.B. Jones, Jr. and Jennifer Jones Bercier, Jones, Jones & Alexander, Cameron, La., for plaintiff-appellant.\n Hollis Horton, Orgain, Bell & Tucker, Beaumont, Tex. and Frank E. Billings, Billings & Solomon, Houston, Tex., for defendants-appellees.\n Appeal from the United States District Court for the Eastern District of Texas.\n Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.\n PATRICK E. HIGGINBOTHAM, Circuit Judge:\n \n \n 1\n Anthony G. Guidry appeals from the district court's order enforcing the settlement reached by Guidry and defendants Halliburton Geophysical Services, Inc., Edison Chouest Offshore, Inc., and Galliano Marine Services. Guidry contends that the district court erred in finding that the settlement agreement precluded any future claim for maintenance. We affirm.\n \n I.\n \n 2\n Anthony Guidry became ill in the course of performing his duties on the R/V Sea Star during the summer of 1990. Guidry's illness was diagnosed as pneumonia and he remained in England for treatment. Upon returning to the United States, Guidry's physicians found that his pneumonia had been cured. Guidry later developed osteomyelitis, however, which his doctor attributed to the pneumonia. On July 3, 1991, Guidry brought suit in United States District Court for the Eastern District of Texas against Galliano Marine Service, his employer, Edison Chouest Offshore, Inc., owner of the vessel, and Halliburton Geophysical Services, Inc., charterer of the vessel. Guidry sought personal injury damages as well as maintenance and cure under the Jones Act and general maritime law.\n \n \n 3\n The case went to trial on February 5, 1992. At the close of Guidry's case, Judge Parker urged settlement. During a meeting in chambers, the parties reached an agreement in the presence of Judge Parker. This discussion was not recorded. Guidry's counsel announced the terms of the settlement in open court on February 6. Counsel indicated that the parties had settled the seaworthiness claims, with the defendants agreeing to pay Guidry $125,000. Guidry's counsel then spoke of the claims reserved under the agreement. He first stated that the \"settlement does not in any manner affect the Plaintiff's rights under the general maritime law for maintenance and cure. His claim for maintenance and cure is totally unaffected by this settlement.\" The following exchange then took place:\n \n \n 4\n [Guidry's counsel]: And it is Plaintiff's understanding that it is the opinion of counsel for the Defendant that insofar as this man's osteomyelitis of the chest area, that this--that future payments will be paid either under the provisions--paid in accordance with--or paid under the obligation of maintenance and cure--under the cure obligation or paid by the hospitalization insurance.\n \n \n 5\n The Court: As I understand it there is some question about whether payment to date have been covered by hospitalization policy which may or may not remain in effect.\n \n \n 6\n [Defense Counsel]: That is true, Your Honor.\n \n \n 7\n The Court: Is that right?\n \n \n 8\n [Defense Counsel]: That is true.\n \n \n 9\n The Court: Because plaintiff is no longer an employee, and there may be a question depending on the provisions of the policy, whether they continue to cover him. If they do not continue to cover him, then his claim for cure for the osteomyelitis is unaffected by the settlement, is that a fair statement?\n \n \n 10\n [Defense Counsel]: That is a fair statement, Your Honor.\n \n \n 11\n The Court: All right.\n \n \n 12\n The district court dismissed the case without prejudice by reason of settlement on February 10, retaining jurisdiction to reopen the action upon a showing that the settlement had not been completed.\n \n \n 13\n Guidry received funds and closing papers from defendants on March 10. The release reserved only Guidry's claim for cure. Guidry questioned the release's failure to reserve future claims for maintenance and filed a motion to enforce the settlement on March 27. After a conference among the district court and counsel (also unrecorded), the court found that the settlement reserved Guidry's cure claim but precluded any future claim for maintenance. The court ordered the settlement to be enforced in accord with this finding. Guidry has appealed to this court.\n \n II.\n \n 14\n The parties disagree on the appropriate standard of review. Guidry contends that the district court's interpretation of the settlement agreement should be reviewed de novo. The defendants argue that we may reverse only if we find that the district court's reading is clearly erroneous. We agree with defendants that the oral settlement's ambiguity makes clear error review proper.\n \n \n 15\n A settlement agreement is a contract. In re Raymark Indus., Inc., 831 F.2d 550, 553 (5th Cir.1987). A district court's interpretation of an unambiguous contract is a question of law, subject to de novo review. LTV Educ. Systems, Inc. v. Bell, 862 F.2d 1168, 1172 (5th Cir.1989); Raymark, 831 F.2d at 553. This standard applies to all unambiguous contracts, oral as well as written. FDIC v. Mmahat, 960 F.2d 1325, 1328 (5th Cir.1992). Where an agreement is ambiguous, such that its construction turns on a consideration of extrinsic evidence, the district court's interpretation is reviewed for clear error. National Union Fire Ins. Co. v. Circle, Inc., 915 F.2d 986, 989 (5th Cir.1990); Raymark, 831 F.2d at 553. The initial determination that the ambiguous nature of a contract warrants the introduction of extrinsic evidence is itself a question of law. Circle, 915 F.2d at 989.\n \n \n 16\n The district court apparently found the oral settlement ambiguous and relied on extrinsic evidence to determine that future claims for maintenance were precluded. Guidry contends that the oral settlement unambiguously reserves his claim for maintenance as well as cure. We disagree. It is true that the oral settlement contains one statement that clearly reserves both claims. See R. 2, p. 62 (\"This settlement does not in any manner affect the Plaintiff's rights under the general maritime law for maintenance and cure. His claim for maintenance and cure is totally unaffected by this settlement.\"). But such a provision cannot be considered apart from the rest of the agreement. See, e.g., In re Continental Airlines Corp., 907 F.2d 1500, 1511 (5th Cir.1990) (\"When interpreting a settlement agreement a court should not read individual sections out of context to achieve a result not originally contemplated by the parties\"). Rather, the statement reserving both claims must be read together with the exchange between Judge Parker and counsel that immediately followed. Viewed in this manner, the meaning of the settlement agreement is by no means clear.\n \n \n 17\n After stating that the settlement reserved claims for both maintenance and cure, Guidry's counsel announced that the parties had agreed that treatment for Guidry's osteomyelitis would be covered by \"the cure obligation or paid by the hospitalization insurance.\" Judge Parker at this time attempted to clarify this point in the agreement by offering what he believed to be a \"fair statement\" of the matter: \"If [the insurance policy provisions] do not continue to cover him, then his claim for cure of the osteomyelitis is unaffected by the settlement.\" This explanation received the assent of defense counsel and the discussion concluded.\n \n \n 18\n Defendants maintain that Judge Parker's comment either renders the oral settlement ambiguous or establishes that the agreement reserves only the claim for cure. According to defendants, the assertion that Guidry's \"claim for cure ... is unaffected by the settlement\" indicates that his claim for maintenance is affected, that is, precluded, by the settlement. Judge Parker's comment in their view constitutes a correction of Guidry's counsel's mistaken prior statement reserving both claims. But it is also possible to read Judge Parker's statement in a way that does not contradict counsel's prior reservation of claims for maintenance and cure. Since Judge Parker's comment immediately followed a statement in which cure was the only claim mentioned, his omission of the maintenance claim might not bear the freight defendants suggest. One could contend that Judge Parker was not correcting counsel's prior misstatement, but was merely responding to the particular issue raised by counsel in the preceding statement. Moreover, one might argue that if Guidry's counsel's assertion that the settlement reserved both maintenance and cure was a total misstatement of the agreed-upon terms, as defendants now claim, surely defense counsel or the court would have corrected this error in a more direct manner. These two plausible interpretations of the transcript lead us to conclude that the oral settlement agreement is ambiguous. It was therefore appropriate for the district court to use extrinsic evidence as an aid in determining the intent of the parties.\n \n \n 19\n Defendants stress the presence and participation of Judge Parker during settlement negotiations in contending that his reading of the agreement should not be disturbed. We agree. Where the interpretation of a settlement agreement turns on an evaluation of extrinsic evidence, a district court's findings deserve great deference. This is especially true in cases where the court has been intimately involved in the process. See, e.g., Raymark, 831 F.2d at 553.\n \n \n 20\n AFFIRMED.\n \n ",
"ocr": false,
"opinion_id": 592099
}
] |
Fifth Circuit
|
Court of Appeals for the Fifth Circuit
|
F
|
USA, Federal
|
2,617,086 |
Edmonds, P.J., and Armstrong, J., and Warden, Senior Judge
| 1998-09-02 | false |
coghill-v-national-council-on-compensation-insurance
|
Coghill
|
Coghill v. National Council on Compensation Insurance
|
In the Matter of the Petition of Wayne E. COGHILL, Dba Allstate Siding Supply Co., Petitioner, v. the Filings of the NATIONAL COUNCIL ON COMPENSATION INSURANCE, Respondent Below, and SAIF CORPORATION, Respondent
|
Charles M. Fryer argued the cause and filed the brief for petitioner., Denise G. Fjordbeck, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.
| null | null | null | null | null | null | null |
Argued and submitted May 15,, petitioner’s petition for reconsideration filed September 16, allowed by opinion November 4,1998
|
See 157 Or App 125, 966 P2d 830 (1998)
| null | 2 |
Published
| null |
<otherdate id="b639-2">
Argued and submitted May 15,
</otherdate><decisiondate id="Ald">
affirmed September 2,
</decisiondate><otherdate id="AAT">
petitioner’s petition for reconsideration filed September 16
</otherdate><otherdate id="A0O">
allowed by opinion November 4,1998
</otherdate><seealso id="Aud">
See 157 Or App 125, 966 P2d 830 (1998)
</seealso><br><parties id="b639-3">
In the Matter of the Petition of Wayne E. COGHILL, dba Allstate Siding Supply Co.,
<em>
Petitioner, v.
</em>
The filings of the NATIONAL COUNCIL ON COMPENSATION INSURANCE,
<em>
Respondent below, and
</em>
SAIF CORPORATION,
<em>
Respondent.
</em>
</parties><docketnumber id="A0a">
(INS 93-09-026; CA A96550)
</docketnumber><citation id="AZJ">
964 P2d 1085
</citation><br><attorneys id="b640-13">
<span citation-index="1" class="star-pagination" label="602">
*602
</span>
Charles M. Fryer argued the cause and filed the brief for petitioner.
</attorneys><br><attorneys id="b640-14">
Denise G. Fjordbeck, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.
</attorneys><br><judges id="b640-15">
Before Edmonds, Presiding Judge, Armstrong, Judge, and Warden, Senior Judge.
</judges><br><judges id="b640-16">
ARMSTRONG, J.
</judges>
|
[
"964 P.2d 1085",
"155 Or. App. 601"
] |
[
{
"author_str": "Armstrong",
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": null,
"author_id": null,
"opinion_text": "\n964 P.2d 1085 (1998)\n155 Or. App. 601\nIn the Matter of the Petition of Wayne E. COGHILL, dba Allstate Siding Supply Co., Petitioner,\nv.\nThe filings of the NATIONAL COUNCIL ON COMPENSATION INSURANCE, Respondent below, and\nSAIF Corporation, Respondent.\nINS 93-09-026; CA A96550.\nCourt of Appeals of Oregon.\nArgued and Submitted May 15, 1998.\nDecided September 2, 1998.\n*1086 Charles M. Fryer, Hillsboro, argued the cause and filed the brief for Petitioner.\nDenise G. Fjordbeck, Assistant Attorney General, argued the cause for Respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.\nBefore EDMONDS, P.J., and ARMSTRONG, J., and WARDEN, Senior Judge.\nARMSTRONG, Judge.\nPetitioner seeks review of a final order of the Insurance Division of the Department of Consumer and Business Services (DCBS) upholding premium audit billings by SAIF for the period between April 1, 1992, and March 31, 1993.[1] We review for errors of law, ORS 183.482(8)(a), and affirm.\nThe following relevant facts were found by an Administrative Law Judge (ALJ) and adopted by DCBS.[2] Petitioner contracts to sell and install vinyl, steel, aluminum and wood siding, usually to builders of new buildings. After petitioner has contracted with a customer to sell and install siding, petitioner assigns a siding installer to the job. Petitioner either assigns the job to an employee or enters into a contract with a person whom petitioner considers to be an independent contractor.\nDuring the audit period, petitioner relied on seven installers for various jobs.[3] Petitioner would describe the job to the installers, including the siding, size and other relevant factors. The installers usually accepted the jobs. The installers and petitioner would then prepare a contract for the job, signed *1087 by petitioner. The contract had petitioner's name on it and told the installer the customer's address and telephone number, the customer's color preference, and the materials to be used on the job.\nPetitioner sometimes assigned employees to install less technical jobs. He also hired some of the outside installers as employees if he wanted to exercise more control over a particular job. He made the decision about whether to use employees or installers on a job based on the circumstances of each job, sometimes after the job had begun. Both employees and installers were paid by the square foot. Employees were paid 55 cents per square foot and installers were paid 75 cents per square foot. The installers were paid more to cover their expenses.\nThe installers were responsible for picking up the siding provided by petitioner and taking it to the job site. They were responsible for providing their own tools, ladders and transportation for any job, although petitioner sometimes would provide special equipment for the installers to use.\nPetitioner occasionally inspected job sites, especially if he had assigned employees to the site. On some jobs, he assigned more than one contract installer. A sales representative of petitioner, Paul Phillips, would also visit work sites to promote customer relations and to report any sloppy work to petitioner. Sloppy work occurred in about one percent of the jobs. Petitioner was responsible to the customer for one year for any poor workmanship or products. Installers were liable to petitioner for one year for poor workmanship.\nInstallers were free to install the siding in any manner, although standard jobs were usually done in the same manner and did not require a high degree of skill. Installers set their own work hours. Petitioner mainly hired installers who were skilled and who could do the work promptly.\nAll the installers were bonded and registered with the state Construction Contractors Board (CCB) and filed business tax forms for their businesses. If an installer refused to correct poor workmanship, petitioner had the right to seek remedial action through the CCB against the installer's bond and registration. Both petitioner and installers could refuse to accept future jobs.\nPetitioner required installers to sign a \"Declaration of Independent Contractor Status.\" The declaration stated that the installer was an independent contractor who would work without the assistance of others unless the installer gave petitioner seven days' notice of the hiring of an assistant and provided workers' compensation coverage for the assistant. The declaration also stated that the parties understood that installers would not be eligible to receive workers' compensation from employer.\nAt various times during the audit period, some installers told Occupational Safety and Health Administration (OSHA) inspectors that they were working for petitioner. On January 25, 1993, Gus Waltersdorf told an OSHA inspector that he was working as a foreman for petitioner, with a crew that included Rod Hall. Rod Hall told the inspector that he had been working for petitioner for five years. Petitioner did not report either Waltersdorf or Hall on its payroll reports to the Employment Department. On March 25, 1993, Doug Miller told an OSHA inspector that he worked for petitioner. Petitioner did not report Miller's payroll to the Employment Department. On September 2, 1992, the general contractor at a construction site told an OSHA inspector that Vern West was the foreman for petitioner for the siding work on that job. West told the inspector that he worked for petitioner and that petitioner was his supervisor. The inspector called petitioner and petitioner did not deny that West was his employee. Petitioner was assessed a fine because West was not using a safety belt while on a lift. Petitioner paid the fine and was not reimbursed by the installer. Petitioner required installers to comply with Oregon workers' safety laws. SAIF included all seven of petitioner's installers as workers in its premium audit of petitioner's workers' compensation coverage.\nIn order to determine whether an individual is a subject worker entitled to benefits under the Workers' Compensation Law, we first must determine whether that individual is a \"worker.\" S-W Floor Cover *1088 Shop v. Natl' Council on Comp. Ins., 318 Or. 614, 622, 872 P.2d 1 (1994).[4] \"Worker\" is defined by ORS 656.005(30),[5] which provides in pertinent part:\n\"`Worker' means any person * * * who engages to furnish services for a remuneration, subject to the direction and control of an employer[.]\"\n(Emphasis supplied.) It is the right to control, not actual control, that is dispositive. Oregon Drywall Systems v. Natl. Council on Comp. Ins., 153 Or.App. 662, 666, 958 P.2d 195 (1998). Factors bearing on whether a person has the right to control another person include: (1) direct evidence of a right to control; (2) furnishing of tools and equipment; (3) method of payment; and (4) the right to discharge without liability. Castle Homes, Inc. v. Whaite, 95 Or.App. 269, 271, 769 P.2d 215 (1989).\n\"[F]or the most part, any single factor is not merely indicative of, but, in practice, virtually proof of, the employment relation; while, in the opposite direction, contrary evidence is as to any one factor at best only mildly persuasive evidence of contractorship, and sometimes is of almost no such force at all.\"\n3 Larson, Workmen's Compensation Law § 44.31, at 8-90 (1998). If the \"right to control\" factors are inconclusive, then it is appropriate to consider the relative nature of the work. Id. In this case, the ALJ determined, and DCBS affirmed, that the \"right to control\" test was inconclusive and that, under the \"nature of the work\" test, the installers were workers.\nWe agree with DCBS that the \"right to control test\" is indeterminative. Although petitioner clearly has attempted to establish a system by which independent installers are kept separate from employees, particularly in his use of contracts purporting to establish independent contractor status for certain installers on certain jobs, other aspects of petitioner's operation have blurred the line between employee and non-employee.[6] Petitioner claims to have exercised no control over the installers' work methods, but the facts indicate some attempt by him to control the quality of the work. In addition, petitioner occasionally assigned employees to work along with installers. It is not clear that he could control employees' work in such cases without also directing the installers. More troubling is the fact that petitioner would sometimes determine whether an installer was an employee after a job had begun. That suggests a greater degree of control over a project than typically would occur in a pure subcontracting situation. Furthermore, there is the fact that some installers identified themselves as employees of petitioner when questioned by state inspectors. Because the direct evidence of control is mixed, we must consider this factor to be neutral.\nAdditionally, although the installers supplied most of their own tools, petitioner supplied specialized equipment when needed. Hence, this factor must be viewed as neutral. The method of payment also is neutral at best. Although installers were paid in accordance with the contract and their progress on the project, they were paid at a rate determined by petitioner. Compare Oregon Drywall Systems, 153 Or.App. at 668, 958 P.2d 195 (subcontractors submitted bids and billings based on square footage or hours, based on their own assessment of the job, its difficulty and the time involved). As for the right to terminate, DCBS found no facts as to the consequences of an attempt by petitioner to remove an installer from an ongoing *1089 project, so we must rate this factor as neutral as well.[7]\nBecause the \"right to control\" test is inconclusive, we look to the relative nature of the work. Under that test, we take into account\n\"the character of the [contractor's] work or business,how skilled it is, how much a separate calling or enterprise it is, to what extent it may be expected to carry its own accident burden and so onand its relation to the employer's business, that is, how much it is a part of the employer's regular work, whether it is continuous or intermittent, and whether the duration is sufficient to amount to the hiring of continuous services as distinguished from contracting for the completion of a particular job.\"\n3 Larson, Workmen's Compensation Law § 43.52, at 8-27 to 8-28 (1998). The purpose of the nature of the work test is to consider factors that are relevant to the workers' compensation system rather than to the common-law issues involved in the right to control test. Trabosh v. Washington County, 140 Or.App. 159, 166, 915 P.2d 1011 (1996). Under the nature of the work test, a worker whose services are a regular and continuing part of the cost of a product, and whose method of operation is not so independent that it forms a separate route through which the costs of industrial accident can be channeled, is presumptively a subject worker. Id. DCBS concluded that, under the nature of the work test, the installers were workers and not independent contractors. We agree.\nThe installers performed work that was identical to that performed by petitioner's employees and that was, indeed, an integral part of petitioner's business. The majority of the installers' work did not require any advanced skills or specialized knowledge. Because the installers were paid by petitioner and because petitioner set the rate of pay, the installers were not able to pass any increased cost of doing business on to the customer. Therefore, petitioner was in a better position to cover the cost of industrial accidents.\nFurthermore, although each job was discrete and of limited duration, petitioner had an ongoing working relationship with the installers. The same installers worked for petitioner year after year. Some installers had been employees of petitioner in the past, and some had been hired on as employees by petitioner during the audit period. The record before us does not show that the installers worked with or for any other parties during the audit period. Again, the fact that petitioner could, at his discretion, decide at any time whether an installer would be an employee on a particular job blurs the distinction between employee and non-employee for all jobs.\nPetitioner bears the burden of proving that the installers were not employees. Premsingh v. Natl. Council on Comp. Ins., 111 Or.App. 624, 627, 826 P.2d 120 (1992). We conclude that, on this record, DCBS properly could conclude that petitioner did not meet that burden. Accordingly, DCBS did not err in upholding the premium audit billings.\nAffirmed.\nNOTES\n[1] In a companion case, Coghill v. Natl. Council on Comp. Ins., 155 Or.App. 638, 964 P.2d 1090 (decided this date), petitioner challenges audit billings for the period from April 1, 1993, to March 31, 1994.\n[2] In his summary of argument, petitioner states that the conclusion by DCBS that he was required to pay workers' compensation premiums was not supported by substantial evidence. He does not identify any DCBS findings that he considers to be erroneous but, rather, devotes the body of his argument to points of law. In that light, we conclude that petitioner has not challenged DCBS's findings.\n[3] For purposes of this opinion, we will use the term \"installers\" to refer to those individuals considered by petitioner not to be employees.\n[4] Neither party has argued, and therefore we do not address, whether the 1995 amendment to ORS 656.027(7) that establishes conclusively that contractors registered with the CCB are not workers who are subject to the Workers' Compensation Law, Or, Laws 1995, ch. 216, § 3(7)(b), applies to this case.\n[5] At the time this proceeding began, \"worker\" was defined by ORS 656.005(28). That subsection was renumbered in 1995, and is now ORS 656.005(30). Or. Laws 1995, ch. 332, § 1. The text was unaltered. We refer to the statute in its current form.\n[6] Because \"worker\" status is determined by statute, the fact that installers signed documents declaring themselves to be independent contractors, although evidence of the parties' intent, is not legally dispositive. See Henn v. SAIF, 60 Or.App. 587, 592, 654 P.2d 1129 (1982).\n[7] The ALJ concluded that the \"right to fire\" factor weighed in favor of worker status because petitioner could refuse to offer future jobs to installers and installers could stop accepting jobs from petitioner. That is an incorrect conclusion. The exercise of a right not to deal with a particular installer in the future is consistent with the idea that a satisfactory end result is all that is aimed for by the contract, and is not, therefore, evidence of an employer-employee relationship. See Henn, 60 Or.App. at 592-93, 654 P.2d 1129.\n\n",
"ocr": false,
"opinion_id": 2617086
}
] |
Court of Appeals of Oregon
|
Court of Appeals of Oregon
|
SA
|
Oregon, OR
|
2,617,062 |
Matthews, C.J., and Compton, Eastaugh, Fabe and Bryner
| 1998-10-16 | false |
horchover-v-field
|
Horchover
|
Horchover v. Field
|
Robert L. HORCHOVER, Appellant, v. Sylvia F. FIELD, F/K/A Sylvia F. Horchover, Appellee
|
Loren Domke, Loren Domke, P.C., Juneau, for Appellant., R. Scott Taylor, Rice, Volland & Taylor, P.C., Anchorage, for Appellee.
| null | null | null | null | null | null | null | null | null | null | 10 |
Published
| null |
<parties id="b1316-3">
Robert L. HORCHOVER, Appellant, v. Sylvia F. FIELD, f/k/a Sylvia F. Horchover, Appellee.
</parties><br><docketnumber id="b1316-6">
No. S-7989.
</docketnumber><br><court id="b1316-7">
Supreme Court of Alaska.
</court><br><decisiondate id="b1316-8">
Oct. 16, 1998.
</decisiondate><br><attorneys id="b1316-28">
Loren Domke, Loren Domke, P.C., Juneau, for Appellant.
</attorneys><br><attorneys id="b1317-3">
<span citation-index="1" class="star-pagination" label="1279">
*1279
</span>
R. Scott Taylor, Rice, Volland & Taylor, P.C., Anchorage, for Appellee.
</attorneys><br><judges id="b1317-4">
Before MATTHEWS, C.J., and COMPTON, EASTAUGH, FABE and BRYNER, JJ.
</judges>
|
[
"964 P.2d 1278"
] |
[
{
"author_str": "Compton",
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": null,
"author_id": null,
"opinion_text": "\n964 P.2d 1278 (1998)\nRobert L. HORCHOVER, Appellant,\nv.\nSylvia F. FIELD, f/k/a Sylvia F. Horchover, Appellee.\nNo. S-7989.\nSupreme Court of Alaska.\nOctober 16, 1998.\nLoren Domke, Loren Domke, P.C., Juneau, for Appellant.\n*1279 R. Scott Taylor, Rice, Volland & Taylor, P.C., Anchorage, for Appellee.\nBefore MATTHEWS, C.J., and COMPTON, EASTAUGH, FABE and BRYNER, JJ.\n\nOPINION\nCOMPTON, Justice.\n\nI. INTRODUCTION\n\nRobert Horchover refused to abide by certain provisions of a Property Settlement Agreement that the superior court had incorporated into the decree that divorced him and Sylvia Horchover, now known as Sylvia Field. Sylvia moved the superior court: (1) to order Robert to show cause why he should not be held in contempt of court; (2) to order him to provide an accounting and to transfer certain funds to her; and (3) to reduce his arrearages to judgment. The superior court reduced Robert's arrearages to judgment, required him to provide a full accounting of two investments and of his dentistry practice's pension plan, and required him to turn over to Sylvia some artwork. After having paid the judgment, Robert requested and received clarification from the superior court regarding the accounting and artwork requirements. Robert only appeals the order requiring him to provide Sylvia with an accounting.\nWe conclude that the superior court's order requiring Robert to provide an accounting was a valid order enforcing the divorce decree, not an invalid order adding terms to the parties' Property Settlement Agreement incorporated into that decree. Furthermore, we conclude that the order was not an abuse of the court's discretion.\n\nII. FACTS AND PROCEEDINGS\n\nIn November 1992 Robert L. Horchover and Sylvia F. Horchover-Field were divorced after thirty-three years of marriage. The Decree of Divorce provided that\nthe assets and liabilities of the parties shall be divided in accordance with the Property Settlement Agreement and Qualified Domestic Relations Order [\"Property Settlement Agreement\"] executed by the parties and previously filed with this court and that the terms and conditions of the Property Settlement Agreement shall be fully incorporated into this decree of divorce.\nThe superior court concluded that the \"Property Settlement Agreement [was] a fair and equitable distribution of the parties' property, assets and debts.\"\nThe Property Settlement Agreement provides that Sylvia shall receive (among other things):\n5. Sixty-five percent (65%) of the net value of the combined profit sharing plans of the two parties. This value shall be calculated by deducting the outstanding loan obligations from the gross amount of the two combined plans.\n....\n10. Fifty percent (50%) of all income attributable to the parties from [their investment in] the Waterfront Hotel project.\n11. The sum of Two Thousand Dollars ($2,000.00) per month payable by husband to wife from January 1, 1995, with the last payment due November 1, 1996. This payment is a distribution of marital property.\n12. Fifty percent (50%) of all income attributable to husband's share of [a] licensing agreement with Schwarb Foundry, presently held by 3S Pacific Corporation.\nRobert did not begin making the $2,000 payments to Sylvia on January 1, 1995, as required by paragraph 11 of the Property Settlement Agreement. In June Robert's attorney sent a letter to Sylvia's attorney alleging that Sylvia had diverted money from Robert's dentistry business in 1988 and 1989.[1] The letter stated, in part:\nDr. Horchover recognizes his responsibilities under the Settlement Agreement, but feels strongly that it was implicit in the settlement process that both parties deal honestly with each other and make full disclosure of relevant asset information.\n\n*1280 If Sylvia has withheld material information on the source of funds in [her personal] account, or has gone further and affirmatively misrepresented the source of these funds, I think she will be in a very poor position to enforce any rights under the Settlement Agreement. Please ask your client to cooperate. Dr. Horchover would like to resolve this issue in the next couple of months. Thank you.\nIn August 1996 Sylvia moved for \"an order to show cause why [Robert] should not be held in contempt of court; for an order requiring an accounting; and for transfer, of certain funds; and for reduction of arrearages to judgment.\" She requested an accounting of the dentistry practice's pension profit sharing plan, the Juneau Waterfront Hotel project (Waterfront Project), the Schwarb Foundry Project, and two other investments no longer at issue. In her memorandum in support of her motion, Sylvia stated that \"it appears that there are additional stocks and accounts receivable which have not been identified or transferred. [I] seek[ ] an accounting of all assets and transactions within the pension plan and profit sharing plans from the date of divorce to the present and an immediate transfer of all sums and assets due [me].\" Additionally, Sylvia requested an accounting of the other investments because, \"[g]iven the history of this divorce, [she][was] concerned that these assets may be modified or liquidated in a way that prevents her from discovering money which is due her.\"\nRobert opposed Sylvia's motion. Regarding the request for accounting, Robert stated:\nSylvia raises a number of issues which go beyond the terms of the property settlement. She has asked [me] for an accounting of various notes receivables due the retirement plan, for an accounting of two worthless equities held by the plan, and for an accounting of the Juneau Waterfront Hotel Project and an accounting of the Schwarb Foundry project.\nRobert argued that he had fully complied with the property settlement \"and [was] not required to furnish any of the accountings requested, with the exception of the Schwarb Foundry where he is the general project manager.\"[2]\nIn January 1997 the superior court granted Sylvia's motion to reduce Robert's arrearages to a judgment and ordered him to provide to her\nan accounting of the Robert L. Horchover, D.D.S., Pension and Profit Sharing Plans and transfer to [Sylvia] all sums in those plans which were awarded to her in the property settlement agreement, ... [and to provide] a full accounting of the activities of the Juneau Waterfront Hotel Project and the Schwarb Foundry Project.\nRobert moved the court to clarify the order requiring him to provide Sylvia with an accounting.[3]\nIn May 1997 the superior court issued its Order re Clarification. It ordered Robert to provide Sylvia, within twenty days of the date of the order, with:\n1. A complete accounting of all assets and transactions in the pension and profit sharing plan from the date of divorce to the date of this order. [Robert] shall bear the full cost of such accounting.\n2. A copy of the books of the Juneau Waterfront Hotel project or its successor entities.\n3. A complete copy of the books of the Schwarb Foundry project or its successor entities.\n*1281 This appeal followed.[4]\n\nIII. DISCUSSION\n\n\nA. Standard of Review\n\nThe parties disagree on the proper standard of review. Robert argues that because the Property Settlement Agreement is a bilateral contract, and the superior court interpreted it in requiring him to provide an accounting, this court should review the superior court's order de novo. De novo review is appropriate, Robert argues, because \"[t]he issue is whether the trial court had jurisdiction to interpret the property settlement and to imply conditions and obligations not anticipated at the time of the settlement or agreed to by the parties.\" Robert cites to our decision in Kendler v. Kendler, 816 P.2d 193 (Alaska 1991). Sylvia, however, argues that we should review the superior court's order for an abuse of discretion. She states that the court was merely enforcing its divorce decree, which incorporated the Property Settlement Agreement, and therefore the abuse of discretion standard applies.\nWhether the superior court added terms to the Property Settlement Agreement or was merely enforcing the agreement, as incorporated into its divorce decree, is a question of law that we review de novo. See Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). On questions of law, our duty \"is to adopt the rule of law which is most persuasive in light of precedent, reason, and policy.\" Id. If the superior court's order was merely enforcing the Property Settlement Agreement, as incorporated into its divorce decree, we review the order for an abuse of discretion. See Meyeres v. Meyeres, 705 P.2d 921, 922-23 (Alaska 1985) (reviewing for an abuse of discretion the trial court's ruling in favor of the ex-husband's motion to enforce the terms of the divorce decree). See also Rohweder v. Fleetwood Homes of Or., Inc., 767 P.2d 187, 190 (Alaska 1989) (reviewing for an abuse of discretion discovery sanctions imposed by a superior court in an effort \"to enforce its discovery orders\"); Sanguinetti v. Sanguinetti, 628 P.2d 913, 916 (Alaska 1981) (reviewing for an abuse of discretion a trial court's decision to deny \"the mother's motion to enforce the home study order and to re-open the case\"). If the order instead implicitly modified or added terms to the agreement, then it is void.\nWhile we have held that property settlement agreements are bilateral contracts,[5] that does not require us to adopt Robert's argument that we should review the superior court's order de novo. We have repeatedly held that a property settlement agreement incorporated into a divorce decree merges with that decree. See, e.g., Cedergreen v. Cedergreen, 811 P.2d 784, 786 (Alaska 1991) (stating that a party could enforce terms of a property settlement agreement by moving the court to enforce its divorce decree because \"the parties' settlement was explicitly merged into its decree\"); Stone v. Stone, 647 P.2d 582, 584 (Alaska 1982) (\"A property settlement incorporated into a divorce decree is merged into the decree, so that the rights of the parties derive from the decree, not the agreement.\"); O'Link v. O'Link, 632 P.2d 225, 228 (Alaska 1981) (\"A property division incorporated within a divorce decree is a final judgment and is modifiable to the same extent as any equitable decree of the court.\"). Furthermore, we have explicitly stated that \"[p]rinciples of contract law are not applicable in an attempt to obtain relief from a final judgment [when the final judgment comprises] the terms of a property settlement incorporated into a divorce decree.\" Stone, 647 P.2d at 585. *1282 Thus, if the superior court was merely enforcing the Horchovers' divorce decree, we review the superior court's actions as we would any order issued by the superior court in an attempt to enforce one of its final decreesthat is, for an abuse of discretion.\nWe must first determine, de novo, whether the superior court added terms to the Property Settlement Agreement when it required Robert to provide Sylvia with an accounting, or whether the superior court was merely enforcing the agreement, which had merged with the divorce decree.[6] If we conclude that the superior court was merely enforcing the divorce decree, we must then determine whether the superior court abused its discretion in so doing. If, however, we conclude that the superior court added terms to the Property Settlement Agreement when it ordered Robert to supply an accounting, then the superior court exceeded its jurisdiction by modifying a bilateral contract, and we must vacate the order.\nFor the following reasons, we conclude that the superior court's order was merely enforcing the divorce decree; it did not abuse its discretion in requiring Robert to provide Sylvia with an accounting.\n\nB. The Superior Court's Order Requiring Robert to Provide an Accounting Merely Serves to Enforce the Property Settlement Agreement.\n\n\n1. The parties' arguments\n\nRobert's argument that he should not be required to provide Sylvia with an accounting can be summed up as follows: \"The property settlement does not impose any obligation on Robert to provide Sylvia with accountings or records or documents for either project or for the corporate pension plan.\" Because the Property Settlement Agreement is devoid of any accounting requirements, Robert argues, the superior court exceeded its jurisdiction by adding such a requirement to the agreement. Robert cites Kendler to support his argument.\nIn Kendler, the superior court incorporated Joe and Marie Kendler's property settlement agreement in a divorce decree. See Kendler, 816 P.2d at 193. Joe failed to abide by paragraph 10 of the agreement; thus, Marie moved for \"an order to show cause, seeking to hold Joe in contempt for `failure to comply with terms of the property settlement incorporated into the judgment and decree.'\" Id. at 194. The superior court ordered Joe to conform with paragraph 10 and, because of \"`possible bad faith on Joe's part,'\" also required him to, among other things, provide an accounting to Marie \"`on an annual basis for all assets set out in ... the property settlement agreement.'\" Id. at 194-95. \"The superior court's final order,\" we noted, \"which incorporates the terms and conditions of its original order, in effect, imposes seven conditions upon Joe.\" Id. at 195. Joe appealed, arguing that \"the superior court has, without authority, amended the property settlement agreement as incorporated in the divorce [decree] by adding terms which were not contemplated by the parties.\" Id. We agreed. See id. We reviewed the superior court's order as one which \"interpreted paragraph 10 of the property settlement agreement.\" Id. at 196. We concluded that, because the agreement did not require Joe to provide an accounting (or any of the other things ordered by the superior court), the superior court's final order \"[could] be viewed as adding additional terms to the divorce decree.\" Id. at 196. Specifically, we characterized the court's actions as not merely enforcing the divorce decree, or interpreting a vague contract provision, but instead added terms as Joe had complied with paragraph 10 at the time the court issued the additional requirements. See id.\nRobert argues that \"Kendler is directly on point.\" \"Viewed objectively,\" Robert states, \"no provision in the Horchover settlement can be interpreted as burdening Robert with any accounting expenses or responsibilities or with any records disclosure duties.\" Therefore, by \"requiring Robert to furnish any information or accountings to Sylvia regarding either the pension plan or the two projects, the Superior Court added additional terms to the contract.\"\n*1283 Sylvia, however, argues that the superior court's order merely enforced the \"property division incorporated into the parties' divorce decree, [and therefore] the post-judgment order was well within the trial court's jurisdiction.\" The superior court, Sylvia argues, was merely enforcing the decree by providing her \"with a means of determining the value of the assets awarded to her.\" Sylvia contends that requiring an accounting is justified in light of Robert's \"history of vexatious noncompliance with the settlement agreement.\"[7]\nSylvia distinguishes Kendler. She asserts that, in contrast to the order in this case, which only seeks \"compliance with the express terms of the parties' settlement agreement,\" the superior court in Kendler added terms that went beyond mere enforcement. In this case, Sylvia argues, the superior court was merely enforcing the agreement because\n[a]t the time of the order, [Robert] had not fully complied with the decreed property division. Assets in the profit sharing plan had not been transferred and [Sylvia] had received nothing from the Juneau Waterfront Hotel and Schwarb Foundry projects. The only way for [her] to ascertain and receive her awarded share of these assets was for her to receive an accounting of the profit sharing plan and copies of the books for the projects.\nIn his reply brief, Robert denies noncompliance with the Property Settlement Agreement, aside from his initial, now-resolved, refusal to pay the required $2,000 monthly payments.[8] Robert states that he did not\nfail to \"turn over 65 percent of the profit sharing plan.\" He refused initially to turn over part of a private loan repayment as a setoff for the missing $41,418 [that he alleged Sylvia had embezzled from his dentistry business]. Sylvia did receive a $96,540 payment before her enforcement motion was filed and received an accounting of all funds due.[9]\n\n2. The superior court's order\n\nThe superior court's language discloses that it requested an accounting from Robert solely for the purpose of enforcing the divorce decree. First, in its original order requiring Robert to provide an accounting, the superior court stated that Robert shall provide an accounting of the pension plan and \"shall transfer to [Sylvia] all sums in *1284 those plans which were awarded to her in the property settlement agreement.\" This language suggests that the court was not altering the agreement, but rather requiring Robert to pay Sylvia the sums that the Property Settlement Agreement in fact had awarded her. Second, pursuant to Robert's motion requesting a clarification of the original order requiring him to provide an accounting of the pension plan, the Waterfront Project, and the Schwarb Foundry Project, the superior court specified that Robert must provide Sylvia with \"[a] complete accounting of all assets and transactions in the pension and profit sharing plan from the date of divorce to the date of this order.\" (Emphasis added.)\nSylvia alleged that Robert was not abiding by the agreement, i.e., that she was not receiving sixty-five percent of the pension plan funds, as the agreement required. In order for the superior court to enforce its divorce decree, it first had to ascertain whether Sylvia had received the funds due her. To determine whether Sylvia had received the designated funds, the court had to be current on the pension plan's fiscal activity. While requiring an accounting of the pension plan may appear as an additional requirement, in reality it was the only way for the court to determine whether Robert was honoring the divorce decree.\nWhile Robert relies heavily on Kendler to support his argument that the superior court was not merely enforcing its divorce decree when it required him to provide an accounting, Kendler is distinguishable. In Kendler we noted that Joe had fully complied with the express terms of the property settlement agreement, and therefore the superior court's requirements were in error because they constituted new terms to the agreement. See Kendler, 816 P.2d at 196. We specifically stated that we were \"[f]ocusing, as we must, on the time when the superior court issued its final order [enforcing the decree].\" Id. Here, Sylvia contends, as of the time the court issued its enforcement order, that Robert had not fully complied with the Property Settlement Agreement, and there were pension plan funds due her. Unlike in Kendler, where we readily determined that Joe was in full compliance with the property settlement agreement, in the instant case an accounting of the pension plan is required to determine whether Robert is in full compliance with the divorce decree.\nWe conclude that the superior court was simply enforcing its decree of divorce when it ordered Robert to provide an accounting of the pension plan.\nSimilarly, we conclude that the superior court's order requiring Robert to turn over a copy of the Waterfront Project books[10] also served to enforce its divorce decree. The Property Settlement Agreement provided that Sylvia should receive \"[f]ifty percent (50%) of all income attributable to the parties from the Waterfront Hotel Project.\" Based on Robert's assertions that the project was not producing any income, Sylvia has received no payments from the project. For the court to enforce the terms of the Property Settlement Agreement, it first had to determine whether the Waterfront Project was defunct. Therefore, the court's order did not disturb the parties' agreement to share the projects' proceeds evenly; it just provided a way to determine if any divisible proceeds existed.\n\nC. It Was Not an Abuse of Discretion to Require Robert to Provide Sylvia with an Accounting of the Pension Plan and a Copy of the Waterfront Project Books.\n\nBased on our conclusion that the superior court's order requiring Robert to provide an accounting of the dentistry's pension plan and a copy of the Waterfront Project books was merely an order enforcing its divorce decree, we must now determine whether the court abused its discretion in making that order. We conclude that it did not.\nWe will find that the superior court abused its discretion if we \"ha[ve] a definite and firm conviction that a mistake has been *1285 made.\" Department of Health & Soc. Servs. v. Alaska State Hosp. & Nursing Home Ass'n, 856 P.2d 755, 765 (Alaska 1993). \"This standard of review bids us give considerable deference to the decision of the trial judge.\" Ryan v. State, 899 P.2d 1371, 1379 (Alaska App.1995).\nWe have stated that, when a party brings a motion to enforce a divorce decree, \"[t]he superior court has inherent power, and also the duty to enforce its divorce decrees.\" Cedergreen, 811 P.2d at 786. Furthermore, we have stated that this duty applies in cases when it is \"enforcing its final decree [which consists of] the parties' settlement [that it had] explicitly merged into its decree.\" Id.\nBased on our precedent which favors a superior court's efforts to enforce its divorce decrees, the court did not abuse its discretion by ordering Robert to provide an accounting as a means to ensure that Sylvia is receiving the funds that the Property Settlement Agreement allocates to her. Robert had repeatedly chosen to only selectively abide by the terms of the Property Settlement Agreement. For instance, Robert refused to pay Sylvia $2,000 per month as required by paragraph 11 of the agreement because he suspected that she had embezzled money from his dentistry business. Robert \"offered to comply with [paragraph 11] if [Sylvia] furnishe[d] a satisfactory explanation [of] and evidence for\" the alleged \"highly irregular diversions of marital funds.\" Robert's actions show his willingness to honor the Property Settlement Agreement on his own terms, and only when he is \"satisfied\" with Sylvia's actions.[11] Furthermore, in opposing Sylvia's motion for an order to show cause, Robert stated that \"Sylvia received $96,540 in late August and is due an additional $51,873.48 less set offs for Robert's share of the Clark note proceeds and any diversions of marital funds.\" (Emphasis added.) This statement reveals that Robert, once again, was willing to selectively self-enforce the terms of the Property Settlement Agreement as he saw fit. In sum, Robert has shown an indifference to the legal force of the Property Settlement Agreement that was incorporated into the court's divorce decree. Robert is not excused, as he appears to believe, from honoring the court's decree except when he is unilaterally satisfied with Sylvia's actions.\nAn accounting of the pension plan and provision of a copy of the Waterfront Project books appears to be a reasonable, and least costly, way of ensuring that Robert is honoring the court's decree. While requiring Robert to provide an accounting of the pension plan may be expensive, the court's order is not an abuse of discretion, in light of Robert's demonstrated willingness to ignore his obligations under the agreement.\n\nIV. CONCLUSION\n\nWe conclude that the superior court's order requiring Robert to provide Sylvia with an accounting of the pension plan and a copy of the Waterfront Project and Schwarb Foundry Project books is a valid attempt to enforce the divorce decree. Further, we conclude that the order was not an abuse of discretion. We AFFIRM the superior court's order.\nNOTES\n[1] Sylvia served as the bookkeeper for Robert's dentist office.\n[2] As a result of Robert's concession in superior court that he is obligated to provide Sylvia with an accounting of the Schwarb Foundry Project, we will not consider the argument to the contrary that he makes on appeal. See Toney v. City of Anchorage Police Dep't, 950 P.2d 123, 126 (Alaska 1997) (finding persuasive that \"a number of other courts have held that when a party concedes a fact before the trial court, the party may not later contest it\").\n[3] Robert also filed two motions for reconsideration, a discovery motion, and a motion to enforce the Property Settlement Agreement. The court denied them.\n[4] In his points on appeal, Robert contests the superior court's award of attorney's fees, its denial of his motion to enforce the Property Settlement Agreement, and its order requiring him to provide Sylvia with accountings. In his brief, Robert explicitly abandons the first two issues and only argues the third, i.e., the requirement that he provide Sylvia with accountings.\n[5] In Kendler we quoted with approval Justice Matthews's dissent in Stone v. Stone, 647 P.2d 582 (Alaska 1982), which stated that \"[a] consent judgment is a bilateral contract wherein the parties adjust their differences by mutual consent.\" Kendler v. Kendler, 816 P.2d 193, 196 (Alaska 1991) (quoting Stone, 647 P.2d at 588) (Matthews, J., dissenting).\n[6] This initial step accommodates the concerns that Justice Matthews raised in his dissent in Stone; this court later adopted his reasoning in Kendler. See supra note 5.\n[7] In her memorandum in support of her motion to show cause, Sylvia requested an accounting of the pension plan because\n\nin June 1993 Robert received repayment of an installment note which was an asset of the profit sharing and pension plan. [Her] portion of that plan was not transferred to her. According to a letter to Robert from the plan administrator, as of October 25, 1995, [her] share of that payment ... was $96,078. In addition, it appears that there are additional stocks and accounts receivable which have not been identified or transferred.\nSylvia, therefore, sought \"an accounting of all assets and transactions within the pension and profit sharing plans from the date of divorce to the present and an immediate transfer of all sums and assets due her.\" Sylvia's only basis for seeking an accounting of the Schwarb Foundry and Waterfront projects was that she was \"concerned that these assets may be modified or liquidated in a way that prevents her from discovering money which is due her.\"\n[8] In his opposition to Sylvia's motion to show cause, Robert stated that he had fully complied with the \"property settlement and is not required to furnish any of the accountings requested, with the exception of the Schwarb Foundry where he is the general project manager.\" In support of his argument that he was in full compliance with the property settlement agreement, Robert stated that \"Sylvia received $96,540 in late August and is due an additional $51,873.48 less set offs for Robert's share of the Clark note proceeds and any diversion of marital funds.\"\n[9] Also in his reply brief, Robert argues for the first time that the Qualified Domestic Relations Order (QDRO) provided that \"Sylvia as the alternate payee `was responsible for payment of 65% of the Plan administrative costs.' These costs include `accounting' and `other normal plan administration expenses.' \"(Emphasis added). Therefore, Robert argues, the superior court's orders requiring Robert to bear the full expenses of an accounting \"substantially changed\" the QDRO.\n\nWe do not consider this argument for two reasons. First, Robert raises it for the first time in his reply brief. See, e.g., Danco Exploration, Inc. v. State, 924 P.2d 432, 434-35 n. 1 (Alaska 1996)(\"[N]ew arguments presented for the first time in reply briefs are considered waived.\"); Sumner v. Eagle Nest Hotel, 894 P.2d 628, 632 (Alaska 1995) (same). Second, Robert did not present this argument to the superior court. See, e.g., Lewis v. State, 565 P.2d 846, 853 (Alaska 1977) (\"[W]e will not address on appeal issues not presented to the trial court.\"); Leigh v. Lundquist, 540 P.2d 492, 497 (Alaska 1975) (same).\n[10] As stated at supra note 2, because Robert conceded below that he is obligated to provide Sylvia with an accounting of the Schwarb Foundry Project, we need not address his contrary argument on appeal.\n[11] While Robert's appeal professes that any order from the court that would in some way alter his obligations under the Property Settlement Agreement is void, he was willing to ignore a requirement of that same Agreement when it benefitted him to do so.\n\n",
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Alaska Supreme Court
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Alaska Supreme Court
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S
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Alaska, AK
|
2,617,102 |
Donnelly
| 1998-08-19 | false |
martinez-v-showa-denko-kk
|
Martinez
|
Martinez v. Showa Denko, KK
| null | null | null | null | null | null | null | null | null | null | null | null | 14 |
Published
| null | null |
[
"964 P.2d 176",
"125 N.M. 605"
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"opinion_text": "\n964 P.2d 176 (1998)\n125 N.M. 605\n1998-NMCA-111\nLydia MARTINEZ, Plaintiff-Appellee,\nv.\nSHOWA DENKO, K.K., a Japanese entity who may be incorporated and authorized to do business in the USA; Revco Discount Drug Centers, Inc., a Michigan corporation; and Doe Companies Nos. 1 through 50, inclusive, Defendants, and\nShowa Denko America, Inc., a New York corporation, Defendant-Appellant.\nNo. 18870.\nCourt of Appeals of New Mexico.\nJuly 13, 1998.\nCertiorari Granted August 19, 1998.\n*177 Luis G. Stelzner, Craig T. Erickson, Sheehan, Sheehan & Stelzner, P.A., Albuquerque, for Appellant Showa Denko America, Inc.\nDaniel B. Silver, Steven J. Kaiser, Cleary, Gottlieb, Steen & Hamilton, Washington, D.C., of counsel for Appellant Showa Denko America, Inc.\nTurner W. Branch, Margaret Moses Branch, Daniel R. Swiss, The Branch Law Firm, Albuquerque, for Plaintiff-Appellee.\n\nOPINION\nDONNELLY, Judge.\n{1} Defendant Showa Denko America, Inc. pursues this interlocutory appeal from an order denying its motion for summary judgment. Two issues are raised on appeal: (1) whether the district court erred in determining that the statute of limitations in product liability cases does not begin to run until Plaintiff knew or reasonably should have known that the cause of her injuries was due to her use of an allegedly defective product; and (2) if so, whether the district court erred in applying the discovery rule to the instant case. Although we conclude that the district court correctly ruled that the discovery rule may be applied to product liability cases, for the reasons discussed herein, we reverse the order denying the award of summary judgment.\n\nFACTS AND PROCEDURAL POSTURE\n{2} Plaintiff consumed tablets manufactured by Defendant containing L-Tryptophan (LT), a dietary supplement, from approximately June 1989 until October or November 1989. In the fall of 1989 Plaintiff began experiencing flu-like symptoms, loss of appetite, fatigue, memory loss, lack of concentration, nausea, and a rash that developed over much of her body. She stopped taking the product in November 1989 because she suspected the tablets might be the source of her nausea and responsible for causing the rash. She advised a friend, Ginny Crespin, not to take LT because she believed it was what *178 \"messed me up\" and caused her to suffer from skin problems.\n{3} In the latter part of 1989 Plaintiff learned that LT had been recalled, and both a sister and Plaintiff's son, Michael, called her attention to an article in the Albuquerque Journal that discussed the reasons underlying the recall of that product. Plaintiff's son also told her about a television report which discussed the recall of LT products. At her son's suggestion, she stopped taking LT. In the early part of 1990, Plaintiff first became aware of eosinophilia myalgia syndrome (EMS) its possible connection with LT, and learned that the symptoms associated with EMS were similar to the symptoms that she was currently experiencing.\n{4} On January 22, 1990, Plaintiff saw Dr. Alvin Chester and showed him the bottle of LT tablets that she had been using. She reported to him that her hands and elbows were painful, that she had skin lesions, and that she felt nauseated. Dr. Chester gave Plaintiff a copy of a FDA Drug Bulletin which described the recall of LT products and some of the symptoms associated with the use of LT.\n{5} On February 9, 1990, Plaintiff consulted Dr. Donald D. Harville, a dermatologist, about the rash she was experiencing. She told Dr. Harville she had been taking LT but had decided to discontinue using it. On February 17, 1990, she again saw Dr. Harville concerning her rash and described her symptoms to him. Dr. Harville made an initial diagnosis that Plaintiff was suffering from \"[l]upus erythematosis, subacute cutaneous type\" and noted that the \"[r]elationship to L-Tryptophan [is] not clear at this time.\" He advised her to attend a dermatology conference at the University of New Mexico (UNM) wherein she could be examined by a number of other doctors.\n{6} In January or February 1990 Plaintiff consulted an attorney in Albuquerque, New Mexico, about the possible connection between her use of LT and her symptoms. The attorney told her she should await the results of the dermatology examination at UNM and that it was possible to send her LT tablets to a laboratory for testing. When Plaintiff attended the dermatology conference at UNM, fifteen of the physicians confirmed Dr. Harville's initial diagnosis of lupus and the remaining three told Plaintiff that in their opinion there was a relationship between her use of LT and her symptoms. One of the three physicians at the dermatology conference, who thought Plaintiff's symptoms were related to her use of LT, told her he had a patient with similar symptoms and who had also taken LT.\n{7} Following the dermatology conference, Dr. Harville again told Plaintiff that there was a possibility that there was a relationship between her symptoms and her use of LT, but believed her symptoms were caused by lupus erythematosis. Her attorney also told Plaintiff that, based on the results of the clinical observations at UNM, it was apparent most of the physicians who had examined her felt that her symptoms were apparently not due to her having taken LT.\n{8} In December 1990 Dr. James B. Farrell examined Plaintiff and advised her that he believed she was suffering from lupus. On June 2, 1994, Plaintiff began receiving Social Security disability benefits based on the agency's determination that she was disabled due to dysthymic disorder and lupus erythematosis.\n{9} In December 1991 Plaintiff was seen by yet another physician, Dr. Alicia Monroe. Dr. Monroe told Plaintiff that she did not believe that Plaintiff's blood tests supported the diagnosis of lupus. Approximately one and one-half years later, in August 1993, Plaintiff saw Dr. Solomon Brown, who prescribed oral steroids for her condition. Dr. Brown requested that Dr. Steve D. Ledesma give a second opinion on the proper course of treatment for Plaintiff. After examining her and reviewing her records, Dr. Ledesma stated that it was his impression that \"[i]t is most likely that [Plaintiff] does and probably has a subacute cutaneous lupus type, which was diagnosed presumably by Dr. Harville[.]\"\n{10} In 1996 Plaintiff's son saw a television program, \"Dateline,\" that broadcast a report about LT and EMS. He told Plaintiff about the matters discussed therein. The *179 \"Dateline\" program stated that EMS could result from ingesting LT. This information prompted Plaintiff to again consult with the same attorney she had consulted previously. The attorney told her he was not interested in taking the case but referred her to the Branch Law Firm. On or about April 2, 1996, the Branch Law Firm had the LT tablets tested at Hauser Laboratories and learned that they were contaminated. Plaintiff's new attorneys also had Plaintiff examined by Dr. Arthur M. Bobrove, a physician at Stanford University School of Medicine. Dr. Bobrove noted that, although there was previously debate \"as to whether there was sufficient evidence to conclude that [Plaintiff] had lupus,\" it was his opinion that Plaintiff\nsuffers from not one, but two diseases both of which have been present since the fall of 1989; one a lupus skin disease and the other a systemic disease, eosinophilia myalgia syndrome (EMS). I cannot say what caused the former disease but the latter is the direct result of her having taken [LT].\nShortly after being advised of the test results and the report of Dr. Bobrove, Plaintiff filed a complaint on April 8, 1996, against Showa Danko, K.K. and other defendants alleging, among other things, that she had been injured due to Defendant's manufacture and sale of a defective product.\n{11} Thereafter, on May 28, 1997, Defendant filed a motion for summary judgment, asserting that Plaintiff's claims were time barred under the statute of limitations. Following a hearing, the district court denied the motion, finding that the existence of a material factual issue precluded the granting of summary judgment.\n\nDISCUSSION\n{12} Defendant contends that the district court erred in applying the discovery rule based on Plaintiff's claims that she had sustained personal injuries resulting from Defendant's manufacture and distribution of an allegedly defective product. It argues that although the discovery rule has been held by New Mexico courts to apply to claims involving accounting, legal, medical malpractice, and latent injuries in workers' compensation cases, the rule has not been extended by Now Mexico courts to other types of litigation. See, e.g., Roberts v. Southwest Community Health Servs., 114 N.M. 248, 255-56, 837 P.2d 442, 449-50 (1992) (involving claim of medical malpractice claim); Brunacini v. Kavanagh, 117 N.M. 122, 129-30, 869 P.2d 821, 828-29 (Ct.App.1993) (involving claim of legal malpractice); Chisholm v. Scott, 86 N.M. 707, 709, 526 P.2d 1300, 1302 (Ct.App. 1974) (recognizing discovery rule in action involving malpractice claim against accountant); cf. Aragon v. Furr's, Inc., 112 N.M. 396, 399, 815 P.2d 1186, 1189 (Ct.App.1991) (in latent injury case involving injured worker, claim accrues when worker knows or should have known that accidental injury resulted in disability).\n{13} Contrasted with the arguments of Defendant, Plaintiff asserts, however, that the trial court correctly determined that an individual who has been injured by the use of a product alleged to be defective is not barred from bringing a claim for her alleged injuries until she in fact knew or reasonably should have known the basis for her injuries.\n{14} We first examine Defendant's contention that the discovery rule is inapplicable to product liability cases. Defendant points to language in Roberts which it asserts indicates that the discovery rule does not apply to cases except those involving claims of professional malpractice cases or litigation involving allegations of latent injury. See Roberts, 114 N.M. at 255, 837 P.2d at 449. In Roberts our Supreme Court recognized an exception to the general rule that the period of the statute of limitations runs from the time the injury manifests itself in a physically objective manner and is ascertainable. The Roberts Court, citing Chisholm, stated, \"we believe that the rationale [in] Chisholm is applicable in cases ... in which the injury does not necessarily manifest itself at the time of the negligent act.\" 114 N.M. at 256, 837 P.2d at 450. Defendant urges this Court to construe the Supreme Court's ruling in Roberts so as to restrict the application of such rule to actions based on injuries claimed to have arisen from the use of defective products.\n{15} We do not believe that our Supreme Court, in Roberts, intended to foreclose the *180 application of the discovery rule in situations involving product liability actions wherein the injury is not readily attributable to a party's use of a defective product. A majority of state courts that do not have discovery statutes and that have considered this issue, have recognized the applicability of the discovery rule in product liability cases involving disease or other types of latent injuries which are not immediately traceable to the use of a particular product or substance. See 4 Louis R. Frumer and Melvin I. Friedman, Products Liability § 26-04[2], at 26-39, 26-51 (Cary Stewart Sklaren rev.1998). As noted by the authors:\nMost state courts that do not have discovery rule statutes, have applied the discovery rule in products cases involving diseases and other injuries. It has become the near-unanimous rule.\nDespite this overwhelming majority rule, however, a few tribunals continue to reject it in certain circumstances and the Virginia Supreme Court rejects it outright. They have continued to hold that the cause of action accrues at the time of injury from a product.\nId. (footnote omitted).\n{16} Similarly, as discussed in Sawtell v. E.I. Du Pont de Nemours & Co., 22 F.3d 248, 251 (10th Cir.1994) (citation omitted):\nIn most states ... a plaintiff's lack of knowledge of a product's defect causing personal injury affects the statute of limitations if a reasonably prudent and intelligent person could not, without specialized knowledge, have been made aware of such cause. In these cases, the cause of action begins to accrue when the injured person knew, or by the exercise of reasonable diligence should have discovered, the defect or the cause of the injury.\n{17} In Sawtell the court noted that \"[p]roducts liability suits are similar to medical malpractice suits: many jurisdictions have extended the discovery rule to products liability cases and [such] cases include many of the same policy concerns found in medical malpractice suits.\" Id.; see also Pennwalt Corp. v. Nasios, 314 Md. 433, 550 A.2d 1155, 1165 (1988) (holding discovery rule applicable to product liability actions). In recognizing the applicability of the discovery rule in product liability proceedings, the court in Pennwalt Corp. noted, \"[t]his approach is consistent with that of other jurisdictions.\" Id. (citing Goodman v. Mead Johnson & Co., 534 F.2d 566 (3d Cir.1976); Rockstroh v. A.H. Robins Co., 602 F. Supp. 1259 (D.Md. 1985); Dawson v. Eli Lilly & Co., 543 F. Supp. 1330 (D.D.C.1982); Sparks v. Metalcraft, Inc., 408 N.W.2d 347 (Iowa 1987); Anthony v. Abbott Labs., 490 A.2d 43 (R.I. 1985)). See generally Jane Massey Draper, Annotation, Statute of Limitations: Running of Statute of Limitations on Products Liability Claim Against Manufacturer as Affected by Plaintiff's Lack of Knowledge of Defect Allegedly Causing Personal Injury or Disease, 91 A.L.R. 3d 991 (1979).\n{18} The rationale supporting to the recognition of the discovery rule in product liability cases is discussed by the editors in 4 American Law of Products Liability 3d § 47:17, at 35 (Timothy E. Travers, Managing Ed., et al., rev. Nov.1990) (footnote omitted):\nMany jurisdictions have responded to problems presented by those cases involving diseases and injuries that do not manifest themselves until long after the plaintiff ceases to be exposed to a product, by enacting a rule of discovery, where the date on which the negligence was or should have been discovered controls the running of a statute of limitations, basing the rule on the fact that it is inconsistent with our system of jurisprudence to require a claimant to bring his cause of action in a limited time period in which, even with due diligence, he could not be aware that a cause of action even existed. Courts may apply a discovery rule when a plaintiff has no way of knowing that an injury has occurred until after the statute of limitations has expired and thus, no way of affixing or exploring potential liability within the statutory period.\n{19} As observed by Justice Baca in Roberts, there are competing rationales for either applying a strict interpretation of the statute of limitations or applying a discovery rule, thus necessitating a conscious balancing of policies. See Roberts, 114 N.M. at 255-56, *181 837 P.2d at 449-50; see also Pierce v. Johns-Manville Sales Corp., 296 Md. 656, 464 A.2d 1020, 1026 (1983) (statutes of limitations are designed to balance the competing interests of potential parties as well as societal interests involved). Applying the same rationale utilized by our Supreme Court in Roberts, we conclude that the district court correctly determined that where an individual has been injured by an unsafe or defective product and the resulting injury does not immediately manifest itself, the three-year statute of limitations prescribed in NMSA 1978, § 37-1-8 (1976), commences when a plaintiff knows, or reasonably should know through diligent inquiry, that he or she has been injured. See Sawtell, 22 F.3d at 251 (noting similarity between medical malpractice actions and products liability suits, and concluding same rationale exists under New Mexico law for recognizing discovery rule in both types of action); Dawson, 543 F.Supp. at 1338 (discovery rule avoids unfairness of interpreting statute of limitations to accrue when injury occurs if at time plaintiff does not have enough information upon which to bring suit); Bonney v. Upjohn Co., 129 Mich.App. 18, 342 N.W.2d 551, 554 (1983); Anthony, 490 A.2d at 45, 46-48 (An individual \"should have reasonable opportunity to become cognizant of an injury and its cause before the statute of limitations begins to run.\"); Hansen v. A.H. Robins, Inc., 113 Wis. 2d 550, 335 N.W.2d 578, 583 (1983); see also Gaston v. Hartzell, 89 N.M. 217, 220, 549 P.2d 632, 635 (Ct.App.1976) (\"[T]he law favors the right of action rather than the right of limitation.\").\n{20} Plaintiff argues that she did not have knowledge of a possible cause of action against Defendant until the defect in the product was discovered by her attorneys in 1996, and that she did everything a reasonable person would do to discover the cause of her medical problems. Thus, she contends it would be unfair to strictly apply the statute of limitations set forth in Section 37-1-8 under the circumstances existing here. She argues that she had been examined by numerous physicians and a majority of them had diagnosed her condition as a lupus-like disease. Plaintiff acknowledges that although she may have suspected in 1989 that LT was related to the symptoms she experienced, \"she was not able to obtain a medical opinion to determine the connection with reasonable certainty during the same period.\" Although we agree with Plaintiff that the discovery rule should properly be extended to product liability cases, the rule does not aid Plaintiff under the uncontested facts herein. In 1990 Plaintiff learned at the dermatology conference at UNM that several physicians attributed her symptoms to her taking of LT. This was more than six years prior to the filing of her lawsuit herein.\n{21} Plaintiff argues, however, that under a discovery rule, the time period for the running of the statute of limitations should not be held to commence until she received a definitive medical opinion indicating that her condition was due to taking LT or until she, in fact, learned of the results of the testing of the LT tablets. She contends that because a majority of the physicians diagnosed her condition as lupus, and she was found eligible for Social Security disability benefits based on a diagnosis of lupus erythematosis, she should not be charged with disputing the opinions of a majority of medical experts who had examined her.\n{22} Even applying the discovery rule, in order to refute Defendant's prima facie showing that Plaintiff filed her lawsuit outside the time limitation of the statute of limitations, it was incumbent upon Plaintiff to demonstrate that if she had diligently investigated the problem she would have been unable to discover the cause of her injury. See McDaniel v. Johns-Manville Sales Corp., 542 F. Supp. 716, 718, 719 (N.D.Ill.1982) (awarding summary judgment where plaintiffs failed to present facts indicating \"that had plaintiffs investigated the problem they would have been unable to discover their potential cause of action against [defendant]\"). Here, the evidence is undisputed that Plaintiff suspected that the symptoms which she was experiencing were in part attributable to her having taken LT and that she stopped taking LT in late 1989 because she believed that LT could well be the basis for her physical problems. Plaintiff does not dispute that she advised a friend, Ginny *182 Crespin, in November 1989 that she should not take LT because Plaintiff felt that LT had caused her to suffer from skin problems. As noted above, Plaintiff was also aware that in February 1990 three doctors at the dermatology conference she attended indicated they attributed her symptoms to LT; that in 1990 she was told about a newspaper article in the Albuquerque Journal revealing the growing public awareness of the dangers of taking LT; that Plaintiff's husband told her that he believed there was a connection between her ingestion of LT and her resulting symptoms; and that Plaintiff testified that \"[m]y husband would always tell me [my symptoms started when I began taking LT]\", and that he \"`noticed it when you started taking those, you started like going downhill. You didn't benefit from them.'\" Plaintiff also testified that when she read the article in the Albuquerque Journal that her sister had given her about the symptoms experienced by individuals who had taken LT, it was \"like they had [written] a story about me.\" Plaintiff described hair loss as one of the symptoms reported in the newspaper article which could result from the use of LT. She stated that in October 1989 she also experienced hair loss. In describing her efforts to pinpoint the cause of her problems, Plaintiff does not dispute the fact that some of the doctors she consulted believed that there was a relationship between her use of LT and her symptoms.\n{23} Moreover, as discussed above, in January or February 1990, Plaintiff was told by a pharmacist that LT had been recalled and that, thereafter, she consulted an attorney about the possible connection between her use of LT and her condition, and the attorney advised her that they could have her LT tablets tested to determine if they could be a cause of her problems. Additionally, Dr. Harville told Plaintiff in early 1990 that it was possible her condition was related to her use of LT. Despite the fact that Plaintiff admitted that during \"the first part of 1990\" she learned about EMS and that she began to experience the symptoms attendant to EMS after she took LT, she did not have the LT tablets remaining in her possession tested until 1996.\n{24} As a general rule, the mere fact that there is a divergence of medical opinions among physicians concerning the cause of an individual's ailment does not preclude or toll the running of the statute of limitations. As observed in American Law of Products Liability 3d, supra § 47:42, at 75, if \"the plaintiff knows or should have reasonably known of the general nature and extent of an injury, the running of a statute of limitations is not delayed if there are differing medical opinions regarding whether the plaintiff has incurred a particular medical condition.\" Although we are sympathetic to Plaintiff's situation, nothing in the discovery rule serves to suspend the running of the statute of limitations merely because there are divergent medical opinions concerning the nature or cause of her illness or injuries. As observed by the court in Bell v. Showa Denko K.K., 899 S.W.2d 749, 754 (Tex.Ct. App.1995):\nBecause of the discovery rule's requirement of reasonable diligence, the tolling of the applicable statute of limitation by the rule ends when the person claiming the benefit of the rule acquires knowledge of facts, conditions, or circumstances which would cause a reasonable person to make an inquiry leading to the discovery of the concealed cause of action. This is so because the knowledge of such matters is, in the law, equivalent to knowledge of the cause of action itself for limitation purposes.\n{25} Under the circumstances shown here, the district court erred in denying Defendant's motion for summary judgment. Even applying the discovery rule, we hold as a matter of law that the information known by Plaintiff concerning the possible connection between her condition and her use of LT was sufficient to activate the commencement of the statute of limitations more than three years before the filing of her complaint. The information she received from her family, newspaper articles, several doctors, and her prior attorney concerning LT and its possible connection with her injuries constituted sufficient information which would put a reasonable person on notice and a duty to timely initiate a claim. See Vaught v. Showa Denko *183 K.K., 107 F.3d 1137, 1141-42 (5th Cir.1997) (defendant's motion for summary judgment affirmed; statute of limitations began running when plaintiff read newspaper article, learned her symptoms were similar to that described, prompting her to contact an attorney); Gnazzo v. G.D. Searle & Co., 973 F.2d 136, 138 (2d Cir.1992) (upholding award of summary judgment on basis that statute of limitations against manufacturer of IUD began to run when plaintiff suspected device caused her infertility, not when she received diagnosis); Fidler v. Eastman Kodak Co., 714 F.2d 192, 198-99 (1st Cir.1983) (discovery rule did not bar running of statute of limitations and summary judgment affirmed where plaintiff had reason to know of causal relationship between her injuries and defendant's product); Jolly v. Eli Lilly & Co., 44 Cal. 3d 1103, 245 Cal. Rptr. 658, 751 P.2d 923, 928-30 (1988) (en banc) (statute of limitations began to run when plaintiff suspected DES was a defective drug); Gray v. Reeves, 76 Cal. App. 3d 567, 142 Cal. Rptr. 716, 722 (1977, as modified Jan. 6, 1978) (affirming summary judgment based on statute of limitations); Wood v. Gibbons, 38 Wash.App. 343, 685 P.2d 619, 622 (1984) (summary judgment upheld; statute of limitations began to run when plaintiff became aware of possible connection between malpractice and injuries suffered by him); cf. Schear v. Board of County Comm'rs, 101 N.M. 671, 672, 687 P.2d 728, 729 (1984) (whether duty exists is generally a question of law).\n\nCONCLUSION\n{26} For the reasons discussed herein, the order denying summary judgment is reversed and the cause is remanded with instructions to dismiss Plaintiff's complaint against Defendant.\n{27} IT IS SO ORDERED.\nWECHSLER and BUSTAMANTE, JJ., concur.\n",
"ocr": false,
"opinion_id": 2617102
}
] |
New Mexico Court of Appeals
|
New Mexico Court of Appeals
|
SA
|
New Mexico, NM
|
7,400 |
DeMOSS, Smith, Wiener
| 1995-07-14 | false |
ingram-towing-co-v-adnac-inc
| null |
Ingram Towing Co. v. Adnac Inc.
|
In Re in the Matter of the Complaint of INGRAM TOWING COMPANY and Ingram Barge Company, as Owner and Owner Pro Hac Vice Respectively, of the M/V Dave Brasell and the IB-2629, Petitioning for Exoneration From or Limitation of Liability: INGRAM TOWING COMPANY, as Owner and Owner Pro Hac Vice, Respectively of the M/V Dave Brasell and the IB-2629, and Ingram Barge Company, as Owner and Owner Pro Hac Vice, Respectively, of the M/V Dave Brasell and the IB-2629, Appellees, v. ADNAC INC., Et Al., the Owner and/or Operator of the Destrehan Elevator in Destrehan, LA, Claimants, Rose Washington, Et Al., Claimants-Appellants
|
Edward B. Kramer, Frederic H. Belcher, Jr., Belcher & Prendergast, Baton Rouge, LA, for claimants., S. Gene Fendler, Don K. Haycraft, Liskow & Lewis, New Orleans, LA, for appellees.
| null | null | null | null | null | null | null | null | null | null | 37 |
Published
| null |
<parties id="b593-8">
In re in the Matter of the Complaint of INGRAM TOWING COMPANY and Ingram Barge Company, as Owner and Owner pro hac vice Respectively, of the M/V Dave Brasell and the IB-2629, Petitioning for Exoneration from or Limitation of Liability: INGRAM TOWING COMPANY, as owner and owner pro hac vice, respectively of the M/V Dave Brasell and the IB-2629, and Ingram Barge Company, as owner and owner pro hac vice, respectively, of the M/V Dave Brasell and the IB-2629, Appellees, v. ADNAC INC., et al., the owner and/or operator of the Destrehan Elevator in Destrehan, LA, Claimants, Rose Washington, et al., Claimants-Appellants.
</parties><br><docketnumber id="b593-13">
No. 94-30485.
</docketnumber><br><court id="b593-14">
United States Court of Appeals, Fifth Circuit.
</court><br><decisiondate id="b593-16">
July 13, 1995.
</decisiondate><br><attorneys id="b594-15">
<span citation-index="1" class="star-pagination" label="514">
*514
</span>
Edward B. Kramer, Frederic H. Belcher, Jr., Belcher & Prendergast, Baton Rouge, LA, for claimants.
</attorneys><br><attorneys id="b594-16">
S. Gene Fendler, Don K. Haycraft, Liskow & Lewis, New Orleans, LA, for appellees.
</attorneys><br><judges id="b594-18">
Before SMITH, WIENER and DeMOSS, Circuit Judges.
</judges>
|
[
"59 F.3d 513"
] |
[
{
"author_str": "DeMOSS",
"per_curiam": false,
"type": "010combined",
"page_count": 8,
"download_url": "http://www.ca5.uscourts.gov/opinions\\pub\\94/94-30485.CV0.wpd.pdf",
"author_id": null,
"opinion_text": "59 F.3d 513\n 1995 A.M.C. 2441\n In re in the Matter of the Complaint of INGRAM TOWINGCOMPANY and Ingram Barge Company, as Owner and Owner pro hacvice Respectively, of the M/V Dave Brasell and the IB-2629,Petitioning for Exoneration from or Limitation of Liability:INGRAM TOWING COMPANY, as owner and owner pro hac vice,respectively of the M/V Dave Brasell and the IB-2629, andIngram Barge Company, as owner and owner pro hac vice,respectively, of the M/V Dave Brasell and the IB-2629, Appellees,v.ADNAC INC., et al., the owner and/or operator of theDestrehan Elevator in Destrehan, LA, Claimants,Rose Washington, et al., Claimants-Appellants.\n No. 94-30485.\n United States Court of Appeals,Fifth Circuit.\n July 13, 1995.\n \n Edward B. Kramer, Frederic H. Belcher, Jr., Belcher & Prendergast, Baton Rouge, LA, for claimants.\n S. Gene Fendler, Don K. Haycraft, Liskow & Lewis, New Orleans, LA, for appellees.\n Appeal from the United States District Court for the Eastern District of Louisiana.\n Before SMITH, WIENER and DeMOSS, Circuit Judges.\n DeMOSS, Circuit Judge:\n \n \n 1\n This is an interlocutory appeal from the district court's order interpreting and enforcing its previous injunction. Finding that we do not have appellate jurisdiction to hear this interlocutory appeal, we DISMISS the appeal.\n \n BACKGROUND\n \n 2\n This case concerns an allision between the M/V DAVE BRASELL and its tow with the Sunshine Bridge near Donaldsonville, Louisiana on April 9, 1993. The allision caused the spill of fuel oil into the Mississippi River. The M/V DAVE BRASELL and its tow were owned and operated by Ingram Towing Company and Ingram Barge Company (collectively \"Ingram\").\n \n \n 3\n Several months after the allision, Ingram began receiving notices from individuals alleging they had upset stomachs, diarrhea and similar symptoms due to drinking and breathing the spilled fuel oil. In September 1993, Ingram was served with a petition, purported to be a class action, brought on behalf of Rose Washington and all others similarly situated (\"Rose Washington Claimants\"), alleging injuries from the spilled fuel oil.\n \n \n 4\n In October 1993, Ingram filed an action seeking exoneration from or limitation of liability pursuant to Rule F of the Supplemental Rules for Certain Admiralty and Maritime Claims, Federal Rules of Civil Procedure and 46 App.U.S.C. Secs. 181-189. The District Court then entered a restraining order (\"October 1993 Order\") prohibiting \"the commencement and/or further prosecution of any action or proceeding against the petitioners and/or their underwriters ... arising out of or connected in any way with\" the allision.\n \n \n 5\n In January 1994, the federal district court remanded to state court that part of the original class action that concerned claims against defendants other than Ingram and allowed those claims to proceed (\"January 1994 Order\").\n \n \n 6\n In March 1994, the Rose Washington Claimants amended their state court suit and added Tennessee Insurance Company (\"TIC\"), Ingram's insurer, as a defendant. The Rose Washington Claimants sued TIC for, inter alia, breach of its duty of good faith and fair dealing due to its categorical denial of all personal injury claims relating to the fuel oil spill.\n \n \n 7\n In May 1994, Ingram sought to enforce the stay in the District Court and stop the proceedings against TIC. In its August 1994 order (\"August 1994 Order\"), the district court said that its October 1993 Order prohibited suits against TIC. The district court also found that the January 1994 Order did not allow suits against TIC, but rather, only against certain local officials. Therefore, the district court held that its October 1993 Order was still in effect and that it prohibited suits by the Rose Washington Claimants against TIC. The district court stayed the state proceedings against TIC.\n \n \n 8\n The Rose Washington Claimants filed a timely interlocutory appeal of this order.\n \n JURISDICTION\n \n 9\n Congress vests the courts of appeals with jurisdiction over appeals from \"all final decisions of the district courts of the United States ... except where a direct review may be had in the Supreme Court.\" 28 U.S.C. Sec. 1291. \"[A]n order is final only when it 'ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.' \" United States v. Garner, 749 F.2d 281, 285 (5th Cir.1985) (quoting Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 373, 101 S.Ct. 669, 673, 66 L.Ed.2d 571 (1981)). \"The purpose behind [the final judgment rule] is to avoid piecemeal appeals, which in turn conserves 'judicial energy' and may help eliminate delay.\" Sherri A.D. v. Kirby, 975 F.2d 193, 201 (5th Cir.1992); see Flanagan v. United States, 465 U.S. 259, 263-65, 104 S.Ct. 1051, 1054, 79 L.Ed.2d 288 (1984); Firestone, 449 U.S. at 374, 101 S.Ct. at 673. The Rose Washington Claimants' appeal is not from a final judgment and is, therefore, interlocutory.\n \n \n 10\n Interlocutory appellate jurisdiction is the exception rather than the rule. Garner, 749 F.2d at 285. Congress has given the courts of appeals jurisdiction over interlocutory appeals only in certain, limited circumstances. Dardar v. Lafourche Realty Co., Inc., 849 F.2d 955, 957 (5th Cir.1988). The Rose Washington Claimants raise two exceptions to the general limitation on appellate jurisdiction over interlocutory appeals; the exceptions are found at 28 U.S.C. Sec. 1292(a)(1) and (3).1 These exceptions allow interlocutory appeals from certain injunctions and admiralty claims. Because this appeal fits neither of the exceptions we find that this Court lacks jurisdiction to hear the appeal.\n \n \n 11\n Interlocutory appeals are not favored and the statutes allowing them must be strictly construed. Sierra Club v. Marsh, 907 F.2d 210, 214 (1st Cir.1990); see E.E.O.C. v. Kerrville Bus Co., Inc., 925 F.2d 129, 131 (5th Cir.1991). \"We must 'approach this statute somewhat gingerly lest a floodgate be opened that brings into the exception many pretrial orders.' \" Switzerland Cheese Ass'n., Inc. v. E. Hornes Market, Inc., 385 U.S. 23, 24, 87 S.Ct. 193, 195, 17 L.Ed.2d 23 (1966).\n \n Section 1292(a)(1)--Injunctions\n \n 12\n Section 1292(a)(1) allows interlocutory appeals when a court grants, continues, modifies, refuses or dissolves an injunction, or when it refuses to modify or dissolve an injunction. However, interlocutory appeals are not allowed when a court merely enforces or interprets a previous injunction.2 Mikel v. Gourley, 951 F.2d 166, 168 (8th Cir.1991) (\"A mere clarification of an injunction is not an appealable order\"); Motorola, Inc. v. Computer Displays Intern., 739 F.2d 1149, 1155 (7th Cir.1984) (\"Orders that merely interpret or clarify an injunction are not appealable under Sec. 1292(a)(1).\"); Major v. Orthopedic Equipment Co., 561 F.2d 1112, 1115 (4th Cir.1977) (\"[The order] is simply an interpretation, not appealable under 28 U.S.C. Sec. 1292(a)(1).\"); Int'l Assoc. of Mach. & Aerospace Workers v. Eastern Airlines, Inc., 849 F.2d 1481, 1485 (D.C.Cir.1988) (distinguishing between orders that are \"mere interpretation[s]\" and orders that modify injunctions); 9 MOORE'S FEDERAL PRACTICE Sec. 110.20 n. 3 (1995).\n \n \n 13\n The district court's August 1994 Order did not grant, continue, modify, refuse or dissolve an injunction.3 Instead, the district court merely explained that the Rose Washington Claimants had misinterpreted the January 1994 Order. The district court made clear that the October 1993 Order was still in effect and suits against Ingram's insurers were still enjoined.4\n \n \n 14\n Because the order does not fall under Sec. 1292(a)(1), we do not have jurisdiction under that exception to hear an interlocutory appeal from the order. We will now consider whether we have jurisdiction under Sec. 1292(a)(3).\n \n Section 1292(a)(3)--Admiralty\n \n 15\n Section 1292(a)(3) allows interlocutory appeals from orders in admiralty cases which \"determin[e] the rights and liabilities of the parties.\" This section\n \n \n 16\n was designed to apply in circumstances distinctive to admiralty where it is not uncommon for a court to enter an order finally determining the issues of liability between the parties and then to refer the case to a master for a determination of damages. Courts have tended to construe this provision rather narrowly and it has not been read to permit interlocutory appeals in admiralty except where the order, regardless of the label affixed to it had the effect of determining the rights and obligations of the parties.\n \n \n 17\n Treasure Salvors v. Unidentified Wrecked and Abandoned Sailing Vessel, 640 F.2d 560, 564 (1981); see Hollywood Marine, Inc. v. M/V ARTIE JAMES, 755 F.2d 414, 416 (5th Cir.1985); Francis v. Forest Oil Corp., 798 F.2d 147, 149 (5th Cir.1986).\n \n \n 18\n \"Orders which do not determine parties' substantive rights or liabilities, however, are not appealable under section 1292(a)(3) even if those orders have important procedural consequences.\" Francis, 798 F.2d at 150; 9 MOORE'S FEDERAL PRACTICE Sec. 110.19 n. 27.\n \n \n 19\n The August 1994 Order did not determine the rights and liabilities of the parties. The order only stayed the state court suit against TIC until the federal limitation of liability proceeding was finished. The district court did not determine that TIC was not liable to the Rose Washington Claimants, nor did it determine the claimants could never sue TIC. All the district court did was determine when the claimants could sue TIC. The district court did not determine the rights and liabilities of the parties, it \"merely settled how and where the rights and liabilities would be determined.\" State Establishment v. M/V Wesermunde, 770 F.2d 987, 990 (11th Cir.1985).\n \n \n 20\n Because the August 1994 Order did not determine the rights and liabilities of the parties, it is not appealable under the admiralty interlocutory appeal exception. 28 U.S.C. Sec. 1292(a)(3).\n \n CONCLUSION\n \n 21\n The Rose Washington Claimants' appeal from the August 1994 Order is interlocutory. This Court generally only has appellate jurisdiction over appeals from final orders and thus interlocutory appeals must fall under one of the exceptions to the final judgment rule. The Rose Washington Claimants allege that we have appellate jurisdiction under two exceptions, 28 U.S.C. Sec. 1292(a)(1) and (3). However, for the above stated reasons, we determine that their appeal does not fall under either of these exceptions and, therefore, their appeal is DISMISSED for lack of appellate jurisdiction.\n \n \n \n 1\n The statute reads, in relevant part:\n (a) [T]he courts of appeals shall have jurisdiction of appeals from:\n (1) Interlocutory orders of the district courts of the United States ... granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions ...;\n ....\n (3) Interlocutory decrees of such district courts or the judges thereof determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed.\n 28 U.S.C. Sec. 1292(a)(1) & (3).\n \n \n 2\n The cases that the Rose Washington Claimants cite are all inapposite, in that they concern the issue of whether an order that continues or modifies an injunction is interlocutorily appealable. The cases do not concern whether this order continued or modified an injunction, nor do they concern whether an order interpreting an injunction should be treated as continuing or modifying an injunction\n \n \n 3\n Both the October 1993 Order and the January 1994 Order were interlocutorily appealable, as they granted and modified injunctions. However, under Federal Rule of Appellate Procedure 4(a), the Rose Washington Claimants had thirty days from the date of the order in which to appeal. They did not file their notice of appeal until August 25, 1994. Therefore, appeals from the October 1993 Order and the January 1994 Order would be untimely. Of course, the appeal from the August 1994 Order is timely\n \n \n 4\n The August 1994 order, from which the Rose Washington Claimants appeal, reads in relevant part:\n The Rose Washington [Claimants] further allege that the January 10, 1994 order of this court which stated, \"[W]hen remanded, the state court action will be stayed as to Ingram Barge Company and the vessel regarding claims subject to limitation but may proceed against the other defendants[,]\" allows them to proceed against a new defendant, TIC. The [Rose Washington Claimants] have misinterpreted the order. The \"other defendants\" were the St. James Parish officials already parties to the state claim and not subject to the limitation proceeding. As stated above, the claim against TIC is \"subject to limitation.\"\n Emphasis in original.\n \n \n ",
"ocr": false,
"opinion_id": 7400
}
] |
Fifth Circuit
|
Court of Appeals for the Fifth Circuit
|
F
|
USA, Federal
|
2,617,135 |
Berch, Kleinschmidt, Noyes
| 1998-09-03 | false |
schwartz-v-arizona-primary-care-physicians
|
Schwartz
|
Schwartz v. Arizona Primary Care Physicians
|
Diane SCHWARTZ and Joel Schwartz, a Married Couple, Plaintiffs-Appellants, v. ARIZONA PRIMARY CARE PHYSICIANS, an Arizona Corporation; Jeff Schneidman, as Personal Representative of the Estate of Lawrence E. Grass, M.D., Deceased; Lana Grass, Surviving Spouse of Lawrence E. Grass, M.D., Deceased, Defendant-Appellees
|
Daniel J. Radacosky, P.C. by Daniel J. Radacosky, Phoenix and John J. Reiner, Los Angeles, for Plaintiffs-Appellants., Goodwin & Raup, P.C. by Sharon E. Ravenscroft Calvin L. Raup, Phoenix, for Defendants-Appellees.
| null | null | null | null | null | null | null |
As Corrected Sept. 3, 1998.
| null | null | 8 |
Published
| null |
<citation id="b386-8">
964 P.2d 491
</citation><br><parties id="b386-9">
Diane SCHWARTZ and Joel Schwartz, a married couple, Plaintiffs-Appellants, v. ARIZONA PRIMARY CARE PHYSICIANS, an Arizona corporation; Jeff Schneidman, as personal representative of the Estate of Lawrence E. Grass, M.D., deceased; Lana Grass, surviving spouse of Lawrence E. Grass, M.D., deceased, Defendant-Appellees.
</parties><br><docketnumber id="b386-11">
No. 1 CA CV 97-0519.
</docketnumber><br><court id="b386-12">
Court of Appeals of Arizona, Division 1, Department D.
</court><br><decisiondate id="b386-14">
Aug. 20, 1998.
</decisiondate><br><otherdate id="b386-15">
As Corrected Sept. 3, 1998.
</otherdate><br><attorneys id="b388-3">
<span citation-index="1" class="star-pagination" label="292">
*292
</span>
Daniel J. Radacosky, P.C. by Daniel J. Radacosky, Phoenix and John J. Reiner, Los Angeles, for Plaintiffs-Appellants.
</attorneys><br><attorneys id="b388-4">
Goodwin & Raup, P.C. by Sharon E. Ravenscroft Calvin L. Raup, Phoenix, for Defendants-Appellees.
</attorneys>
|
[
"964 P.2d 491",
"192 Ariz. 290"
] |
[
{
"author_str": "Berch",
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": null,
"author_id": 6179,
"opinion_text": "\n964 P.2d 491 (1998)\n192 Ariz. 290\nDiane SCHWARTZ and Joel Schwartz, a married couple, Plaintiffs-Appellants,\nv.\nARIZONA PRIMARY CARE PHYSICIANS, an Arizona corporation; Jeff Schneidman, as personal representative of the Estate of Lawrence E. Grass, M.D., deceased; Lana Grass, surviving spouse of Lawrence E. Grass, M.D., deceased, Defendant-Appellees.\nNo. 1 CA CV 97-0519.\nCourt of Appeals of Arizona, Division 1, Department D.\nAugust 20, 1998.\nAs Corrected September 3, 1998.\n*492 *493 Daniel J. Radacosky, P.C. by Daniel J. Radacosky, Phoenix and John J. Reiner, Los Angeles, for Plaintiffs-Appellants.\nGoodwin & Raup, P.C. by Sharon E. Ravenscroft Calvin L. Raup, Phoenix, for Defendants-Appellees.\n\nOPINION\nBERCH, Judge.\n¶ 1 Diane and Joel Schwartz (\"the Schwartzes\") appeal from the trial court's dismissal of their medical malpractice action against Jeff Schneidman, as personal representative of the Estate of Lawrence E. Grass, M.D. (\"Estate\"[1]), Lana Grass, the widow of Dr. Grass, and Arizona Primary Care Physicians (\"APCP\"), Dr. Grass's medical group.[2] The trial court concluded that the Schwartzes improperly served process[3] on the Grass Defendants and that their action against the Grass Defendants had abated. The court further denied the Schwartzes' request for relief under Arizona's savings statute, Arizona Revised Statutes Annotated (\"A.R.S.\") section 12-504, finding that the equities did not warrant such relief. Because we find that the Schwartzes' action had not abated, but rather that the error was one of insufficient process, we reverse the trial court's ruling and hold that the Schwartzes are entitled, as a matter of right, to refile their action pursuant to the mandatory provisions of the savings statute. We further note that, even if the trial court had discretion here, it abused its discretion in denying the Schwartzes the opportunity to refile their action.\n\nBACKGROUND\n¶ 2 In 1995, Diane Schwartz (\"Diane\"), a patient of gynecologist Lawrence Grass, was diagnosed with metastatic breast cancer. On February 23, 1996, the Schwartzes filed a medical malpractice action in Maricopa County Superior Court against the Grass Defendants and other health-care providers who had treated Diane. The Schwartzes alleged that Dr. Grass failed to timely diagnose and treat Diane's breast cancer. The Schwartzes did not serve any of the Defendants with this complaint, but instead amended their complaint to include additional health-care providers as Defendants.\n¶ 3 After filing the first amended complaint on May 22, 1996, the Schwartzes hired a qualified process server to serve Defendants with a summons, a copy of the first amended complaint, and an amended certificate of arbitration. By June 5, 1996, all but the Grass Defendants had been served with process. Also on June 5, one of the other Defendants filed a Notice of Removal to the United States District Court for the District of Arizona. The Grass Defendants were served with the previously issued state-court process on June 10, June 18, and June 19, respectively.\n¶ 4 While the case was pending in federal court, the Schwartzes and the Grass Defendants engaged in settlement negotiations. On November 19, 1996, the federal court granted the Schwartzes' motion to remand the case to state court, finding that the unanimity requirement of removal had not been met. On December 12, 1996, settlement discussions not having resolved the matter, the Schwartzes asked all Defendants to file answers on behalf of their clients. The Grass Defendants responded by letter that the Schwartzes had \"not properly served\" them and, therefore, were not \"entitled to request an Answer.\" In a letter dated December 20, 1996, the Schwartzes replied that they did not understand why the Grass Defendants considered the service insufficient, and enclosed copies of the affidavits of service on each of the Grass Defendants. The Grass Defendants did not respond to this letter.\n¶ 5 On January 7, 1997, the Grass Defendants filed their Answer, asserting the defenses of insufficiency of process, insufficiency of service of process, lack of personal *494 jurisdiction, and abatement. The Grass Defendants then participated in discovery and listed these defenses, without elaboration, in their March 10, 1997 disclosure statement. The Grass Defendants also participated in the comprehensive pretrial conference, identified their anticipated areas of expert testimony, and opposed the Schwartzes' motion for trial preference.\n¶ 6 On March 17, 1997, immediately after the statute of limitations had run on the Schwartzes' claims, the Grass Defendants moved to dismiss the case based on the service of state-court process after the case had been removed to federal court, lack of personal jurisdiction, and abatement. The trial court granted the motion to dismiss and denied the Schwartzes' request for relief under Arizona's savings statute, A.R.S. section 12-504. After summarily denying the Schwartzes' Motion for Reconsideration, the trial court entered a signed order dismissing the Schwartzes' claims and entering final judgment for the Grass Defendants.\n¶ 7 The Schwartzes then filed this appeal. This court has jurisdiction pursuant to A.R.S. section 12-2101(B).\n\nISSUES\n¶ 8 The Schwartzes raise three issues on appeal: (1) Did the trial court err in dismissing the action for defective process; (2) did the trial court err in denying the Schwartzes' request for leave to refile their complaint as a matter of right under Arizona's savings statute; and (3) if the Schwartzes were not entitled to refile their complaint as a matter of right, did the trial court abuse its discretion in denying relief under the savings statute?\n\nDISCUSSION\n\nA. Analysis of 28 U.S.C. section 1448\n\n¶ 9 The Schwartzes claim on appeal that the trial court improperly dismissed their lawsuit. Their position is that in-hand service of the state-court process upon the Grass Defendants after the case had been removed to federal court was effective to confer jurisdiction over the Defendants. This argument, however meritorious it might be, was never raised below. In dismissing the action, the trial court assumed, and the Schwartzes did not contest, that the state courts would follow the Ninth Circuit rule that, once a case has been removed to federal court, service of process issued by a state court is invalid. See Beecher v. Wallace, 381 F.2d 372 (9th Cir.1967). The Ninth Circuit rule stems from its interpretation of 28 U.S.C. section 1448, which provides as follows:\nIn all cases removed from any State court to any district court of the United States in which one or more of the defendants has not been served with process or in which the service has not been perfected prior to removal, or in which process served proves to be defective, such process or service may be completed or new process issued in the same manner as in cases originally filed in such district court.\n28 U.S.C. § 1448. The court in Beecher interpreted section 1448 to mean that process validly issued by a state court but not served on a defendant becomes invalid if served after a notice of removal to federal court is filed. 381 F.2d at 373. While this interpretation is the rule in the Ninth Circuit, it is not necessarily the rule in Arizona state courts. See Ritchie v. Grand Canyon Scenic Rides, 165 Ariz. 460, 464, 799 P.2d 801, 805 (1990) (Arizona courts are not bound by federal court decisions if \"Arizona policy, practice, or case law requires a different result.\").\n¶ 10 Moreover, the Ninth Circuit interpretation is not unanimous among the federal courts. Some courts have flatly rejected it. See, e.g., Listle v. Milwaukee County, 926 F.Supp. 826, 827 (E.D.Wis.1996), aff'd, 138 F.3d 1155 (7th Cir.1998) (citing Continental Ill. National Bank and Trust Co. of Chicago v. Protos Shipping, Inc., 472 F.Supp. 979, 982-83 (N.D.Ill.1979) (holding that service of a state-court summons and complaint after removal to federal court is valid service)).[4]*495 The federal courts in Wisconsin and Illinois noted that a Beecher-type analysis elevates form over substance and gives no meaning to the statutory language that \"service may be completed\" after removal. See id. at 828; Continental Ill. Nat'l Bank, 472 F.Supp. at 982-83.\n¶ 11 The Ninth Circuit itself has suggested that whether process is sufficient to confer jurisdiction over parties regarding state-law issues returned from a federal court to a state court should be determined by the state court. See Lee v. City of Beaumont, 12 F.3d 933, 936-37 (9th Cir.1993) (discussing process served before removal). In declining to rule upon the efficacy of service, the court stated that \"[t]he issue of the sufficiency of service of process ... is strictly a state-law issue [citations omitted], and as a matter of comity, is best addressed in the state courts if the only remaining claims are pendent state claims which the district court is remanding.\" Id. This position appropriately recognizes that removal to federal court and remand of a case properly filed in a state court simply interrupts the state court's jurisdiction. See Ex Parte Metropolitan Life Ins. Co., 707 So.2d 229, 232 (Ala.1997) (quoting Doerr v. Warner, 247 Minn. 98, 76 N.W.2d 505 (1956)).\n¶ 12 No Arizona court has decided whether the Beecher analysis applies in Arizona courts, and the issue should not be decided in this case, in which the issue was raised for the first time on appeal. Because the parties proceeded in the trial court as if the Beecher analysis applied, we will proceed on that assumption, too, and we do not reverse the trial court because it relied on Beecher. However, we question whether our courts, when faced squarely with the issue, would adopt the Beecher analysis as the rule for state courts in Arizona.\n\nB. Abatement versus insufficiency of process\n¶ 13 The Schwartzes' second issue, whether they were entitled to refile their complaint as a matter of right, requires us to interpret Arizona's savings statute. Because statutory interpretation is a question of law, we review the trial judge's ruling de novo. See Perguson v. Tamis, 188 Ariz. 425, 427, 937 P.2d 347, 349 (App.1996).\n¶ 14 Like many other states, Arizona has a savings statute that allows parties the opportunity, in some circumstances, to refile a dismissed claim after the statute of limitations has run:\nIf an action is commenced within the time limited for the action, and the action is terminated in any manner other than by abatement, voluntary dismissal, dismissal for lack of prosecution or a final judgment on the merits, the plaintiff ... may commence a new action for the same cause after the expiration of the time so limited and within six months after such termination. If an action timely commenced is terminated by abatement, voluntary dismissal by order of the court or dismissal for lack of prosecution, the court in its discretion may provide a period for commencement of a new action for the same cause, although the time otherwise limited for commencement has expired. Such period shall not exceed six months from the date of termination.\nA.R.S. § 12-504(A)(emphasis added). By the terms of the statute, whether a party's right to refile a lawsuit is absolute or discretionary depends upon the reason for the termination of the action. If the Schwartzes' action had abated, it could be refiled only by leave of the court, because the statute of limitations had expired. See id. If the action were terminated for insufficiency of process, however, the statute entitles the Schwartzes to refile their complaint as a matter of right. See id.; Janson v. Christensen, 167 Ariz. 470, 472, 808 P.2d 1222, 1224 (1991). In Janson, the supreme court reasoned that the legislature's failure to list insufficiency of process as a discretionary item in the savings statute demonstrates that a plaintiff whose case was dismissed for insufficiency of process has an absolute right to refile. See 167 Ariz. at 472, 808 P.2d at 1224.\n¶ 15 The trial court concluded that the Schwartzes' claims against the Grass Defendants had abated because they were never *496 served with a valid summons within the 120-day time limit for service set forth in Rule 4(i), Arizona Rules of Civil Procedure (\"Rule\"). Therefore, the court held that the Schwartzes could refile their action only by leave of the court, which leave the court denied. The Schwartzes incorrectly argue that the repeal of former Rule 6(f) and its replacement with current Rule 4(i) eradicated the defense of abatement entirely. This rule change did not eliminate the doctrine of abatement; it simply shortened the time limit for service of summons from one year to 120 days. See Clark v. DS Rentco, Inc., 175 Ariz. 233, 234 n. 1, 854 P.2d 1219, 1220 n. 1 (App.1993). An action still abates if a summons is not served within the time limits prescribed by the procedural rules. See id.\n¶ 16 Repealed Rule 6(f) defined abatement as the failure to issue and serve the summons within one year of the filing of the complaint. Abatement occurs when defendants receive no complaint or summons within the requisite time period to put them on notice of the pending case. See, e.g., Cook v. Superior Court, 135 Ariz. 1, 658 P.2d 801 (1983); Air Power, Inc. v. Superior Court, 142 Ariz. 492, 690 P.2d 793 (App.1984); Riley v. Superior Court, 116 Ariz. 89, 567 P.2d 1218 (App.1977). The abatement rule gives effect to the statute of limitations and prevents a plaintiff who files an action within the statute of limitations, but fails to timely serve the defendants, from gaining a tactical advantage against defendants who are not on notice that they should begin preparing to respond to a lawsuit. See Safeway Stores, Inc. v. Maricopa County Superior Court, 19 Ariz.App. 210, 214, 505 P.2d 1383, 1387 (1973).\n¶ 17 The Grass Defendants' defense, however, was not abatement, but insufficiency of process. See Ariz. R. Civ. P. 12(b)(4). Unlike abatement, insufficiency of process goes to the form of the papers. See Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1353, at 276 (2d ed.1990). The Grass Defendants claim that, while the form of the papers was proper, the summons was issued, not by the federal court, but by a state court that temporarily lacked jurisdictionthat is, the summons that issued bore the seal of the wrong court and was therefore void. The Grass Defendants impliedly concede that the process served on them would have been effective had the documents borne the seal of the federal district court. If, however, the process the Grass Defendants received bore no court seal at all, then it would be clear that this was an insufficiency in the papers themselves.\n¶ 18 Here, because the Grass Defendants received process, even assuming that the process was defective because of Beecher, the action did not abate.[5] The trial judge erred in designating the defect abatement rather than insufficiency of process. Janson controls and requires, as a matter of law, that the Schwartzes be given the opportunity to refile their action within six months. See Janson, 167 Ariz. at 470, 808 P.2d at 1222; A.R.S. § 12-504.\n\nC. Discretionary relief\n¶ 19 Finally, even if the Schwartzes were not entitled to relief as a matter of right, the trial court abused its discretion in denying the Schwartzes relief under the savings statute. Although a trial court is granted broad discretion in determining whether to grant relief under the savings statute, in making its decision, the court must analyze whether the plaintiff (1) acted reasonably and in good faith, (2) prosecuted the case diligently and vigorously, and (3) faces a procedural impediment affecting the ability to refile the action. See Jepson, 164 Ariz. at 274, 792 P.2d at 737. Further, the court must consider whether either party will be substantially prejudiced by its decision. See id. The appellate court will not disturb the exercise of the trial court's discretion if it is supported by any reasonable\nNOTES\n[1] Dr. Grass died before the Schwartzes filed their complaint.\n[2] Collectively, the \"Grass Defendants.\"\n[3] Although the trial judge used this term, we assume that he meant that the process served was insufficient. No one has contended that the personal, in-hand service by a process server did not constitute adequate service of process.\n[4] For additional discussion of the division of authority among federal courts, see James Wm. Moore, 14 Moore's Federal Practice §§ 81.04[3] and n. 28 (3d ed., 1997) (Daniel Coquillette, Sol Schreiber, Gregory P. Joseph, Jerold S. Solovy, and Georgene M. Vairo, eds.); Charles A. Wright & Arthur Miller, Federal Practice and Procedure § 1082 (1969 and Supp.1998).\n[5] Insufficiency of service of processwhich is not at issue in this case and may result in a defendant not receiving actual notice of a pending lawsuitdiffers from insufficiency of process, which involves defects in the papers themselves. The policies underlying the distinction between abatement and insufficiency of process therefore do not necessarily apply to insufficiency of service issues.\n\n",
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Court of Appeals of Arizona
|
Court of Appeals of Arizona
|
SA
|
Arizona, AZ
|
440,002 |
Johnson, Jolly, Reavley
| 1984-09-07 | false |
lee-d-harper-v-zapata-off-shore-company
| null |
Lee D. Harper v. Zapata Off-Shore Company
|
Lee D. HARPER, Plaintiff-Appellee, v. ZAPATA OFF-SHORE COMPANY, Defendant-Appellant
|
Abbott, Webb, Best and Meeks, Daniel A. Webb, Michael G. Cordes, New Orleans, La., for defendant-appellant., Michael A. McGlone, James F. Shuey, New Orleans, La., amicus curiae, for Offshore Marine Serv. Ass’n., Henderson, Hanemann & Morris, Philip E. Henderson, Houma, La., J. Fletcher Jones, Andalusia, Ala., for plaintiff-appel-lee.
| null | null | null | null | null | null | null | null | null | null | 43 |
Published
| null |
<parties data-order="0" data-type="parties" id="b161-4">
Lee D. HARPER, Plaintiff-Appellee, v. ZAPATA OFF-SHORE COMPANY, Defendant-Appellant.
</parties><br><docketnumber data-order="1" data-type="docketnumber" id="b161-6">
No. 83-3149.
</docketnumber><br><court data-order="2" data-type="court" id="b161-7">
United States Court of Appeals, Fifth Circuit.
</court><br><decisiondate data-order="3" data-type="decisiondate" id="b161-9">
Sept. 7, 1984.
</decisiondate><br><attorneys data-order="4" data-type="attorneys" id="b161-23">
Abbott, Webb, Best and Meeks, Daniel A. Webb, Michael G. Cordes, New Orleans, La., for defendant-appellant.
</attorneys><br><attorneys data-order="5" data-type="attorneys" id="b161-24">
Michael A. McGlone, James F. Shuey, New Orleans, La., amicus curiae, for Offshore Marine Serv. Ass’n.
</attorneys><br><attorneys data-order="6" data-type="attorneys" id="b162-3">
<span citation-index="1" class="star-pagination" label="88">
*88
</span>
Henderson, Hanemann & Morris, Philip E. Henderson, Houma, La., J. Fletcher Jones, Andalusia, Ala., for plaintiff-appel-lee.
</attorneys><br><p data-order="7" data-type="judges" id="b162-5">
Before REAVLEY, JOHNSON and JOLLY, Circuit Judges.
</p>
|
[
"741 F.2d 87"
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[
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"opinion_text": "741 F.2d 87\n 1985 A.M.C. 979\n Lee D. HARPER, Plaintiff-Appellee,v.ZAPATA OFF-SHORE COMPANY, Defendant-Appellant.\n No. 83-3149.\n United States Court of Appeals,Fifth Circuit.\n Sept. 7, 1984.\n \n Abbott, Webb, Best and Meeks, Daniel A. Webb, Michael G. Cordes, New Orleans, La., for defendant-appellant.\n Michael A. McGlone, James F. Shuey, New Orleans, La., amicus curiae, for Offshore Marine Serv. Ass'n.\n Henderson, Hanemann & Morris, Philip E. Henderson, Houma, La., J. Fletcher Jones, Andalusia, Ala., for plaintiff-appellee.\n Appeals from the United States District Court for the Eastern District of Louisiana.\n Before REAVLEY, JOHNSON and JOLLY, Circuit Judges.\n REAVLEY, Circuit Judge:\n \n \n 1\n Lee D. Harper brought suit under the Jones Act and general maritime law for injuries suffered while working on Zapata Off-Shore Company's drilling barge and for inadequate maintenance. By this appeal, Zapata challenges the award of punitive damages and the amount of compensatory damages and maintenance found by the jury. We reverse and remand.\n \n I. Background\n \n 2\n Harper was attempting to carry a 90-pound rotary coupling part from the heliport on Zapata's drilling barge to a storage room below. While Harper was going down a steep flight of stairs, the barge shifted and he stumbled, injuring his back. The accident required Harper to have back surgery on two occasions to remove extrusions of ruptured discs. Following the incident Zapata paid for Harper's medical expenses and gave him a check for $638 every two weeks. The check specified that $112 was for maintenance and that $526 was an \"advance.\" When Zapata learned that Harper was suing, it terminated the advances, but continued to pay maintenance of $8 a day ($112 every two weeks).\n \n \n 3\n In a jury trial Harper sued for compensatory damages, increased maintenance, and attorney's fees and punitive damages for Zapata's failure to pay a proper amount of maintenance. The jury found that Zapata was negligent and that the vessel was unseaworthy and awarded Harper $40 a day in maintenance, $1,000,000 in compensatory damages, $500,000 in punitive damages, and $5,000 in attorney's fees. In response to Zapata's motion for new trial, the district court reduced the punitive damages award to $250,000 on remittitur, which Harper accepted.\n \n II. Punitive Damages and Attorney's Fees\n \n 4\n Zapata's position in the briefs and at oral argument was that lump-sum punitive damage awards could not be grounded on a failure to pay maintenance. The seminal case of Vaughan v. Atkinson, 369 U.S. 527, 82 S. Ct. 997, 8 L. Ed. 2d 88 (1962), had been construed differently by the First and Second Circuits. Compare Kraljic v. Berman Enterprises, Inc., 575 F.2d 412 (2d Cir.1978) (Vaughan authorizes only attorney's fees as punitive damages) with Robinson v. Pocahontas, Inc., 477 F.2d 1048 (1st Cir.1973) (traditional exemplary damages permitted if shipowner wantonly refuses to pay maintenance). We have recently agreed with the First Circuit that punitive damages for the willful and arbitrary refusal to pay maintenance are available under general maritime law. See Holmes v. J. Ray McDermott & Co., 734 F.2d 1110, 1118 (5th Cir.1984); see also In re Merry Shipping, Co., 650 F.2d 622 (5th Cir.1981) (Unit B) (punitive damages allowed for willfully and wantonly creating or maintaining unseaworthy conditions).\n \n \n 5\n It does not follow, however, that punitive damages may be based on a shipowner's failure to pay adequate maintenance. Zapata argues that the district court erred by allowing the jury to impose punitive damages merely because Zapata paid a maintenance rate that the jury later found to be inadequate. We agree. On this record, the district court should not have submitted the questions of punitive damages or attorney's fees to the jury. See Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir.1969) (en banc). Both awards must be grounded on the same type of egregious shipowner conduct exhibiting wanton and intentional disregard of a seaman's rights. See Vaughan v. Atkinson, 369 U.S. 527, 82 S. Ct. 997, 8 L. Ed. 2d 88 (1962); Kraljic v. Berman Enterprises, Inc., 575 F.2d 412, 416 (2d Cir.1978).\n \n \n 6\n Harper does not dispute that Zapata consistently paid the traditional maintenance rate of $8 a day and designated those payments as maintenance. Instead, he attacks a settlement procedure employed by Zapata in dealing with injured employees. Every two weeks, while Harper was recuperating, Zapata paid him $526 as an \"advance,\" along with maintenance. In addition, Zapata twice provided Harper with $3000 to help out with household expenses and personal bills. Testimony established that Zapata had no intention of recovering these \"advances,\" but that the payments were made with a view toward settling claims without litigation.1 Zapata's claims representative stated at trial that he informed Harper that he would not have to repay the advances, but that if he instituted suit, Zapata would terminate the advances and pay the $8 amount that it thought was its legal obligation.\n \n \n 7\n During the examination of Zapata's claims representatives, the district court instructed the jury that Zapata's advances were not to be credited toward maintenance--\"the advances [have] nothing to do with the proper amount of maintenance.\"2 Yet the court, in referring to the punitive damages issue, told the jury that it \"should consider the total actions of Zapata in connection with this case ....\"\n \n \n 8\n We cannot escape the conclusion that the jury penalized Zapata for terminating its advances. During closing argument, Harper's counsel repeatedly emphasized the millions of dollars Zapata saved with settlement efforts.3\n \n \n 9\n For purposes of the punitive damages issue, the district court appeared to have considered the settlement advances as maintenance payments. The court stated that it \"share[d] the jury's apparent outrage produced by defendant's intentional evil practice of attempting to prevent litigation by cutting the maintenance rate to a starvation level.\" Harper v. Zapata Off-Shore Co., 563 F. Supp. 576, 585 (E.D.La.1983). Despite stating that \"the evidence supporting punitive damages was overwhelming,\" the court cited only the termination of advances and the \"starvation payment\" of $8 a day. The district court did not find that the advances were maintenance payments in disguise, and the jury was not allowed to credit the advances toward Zapata's maintenance payments. Therefore, we think it was improper to view termination of settlement efforts as an evil reduction in maintenance. The special verdict only asked, \"Was defendant's failure to pay an amount of maintenance higher than $8 per day intentional and with callous disregard for the plaintiff's rights?\"\n \n \n 10\n The cases in which punitive damages or attorney's fees have been granted share the common element of a shipowner's default, either in failing to provide maintenance and cure or in failing to investigate an injured seaman's claim. See Vaughan v. Atkinson, 369 U.S. 527, 82 S. Ct. 997, 8 L. Ed. 2d 88 (1962) (shipowner exhibited willful and persistent default and did not investigate seaman's claim); Holmes v. J. Ray McDermott & Co., 734 F.2d 1110 (5th Cir.1984) (shipowner failed to reinstate seaman's maintenance and cure after seaman gave notice of claim based on diagnosis of herniated disc); Picou v. American Offshore Fleet, Inc., 576 F.2d 585 (5th Cir.1978) (trial court awarded attorney's fees and punitive damages because shipowner, in face of seaman's attempts to obtain maintenance and cure, failed to investigate claim and to pay maintenance); Kraljic v. Berman Enterprises, Inc., 575 F.2d 412 (2d Cir.1978) (attorney's fees awarded because shipowner willfully refused to provide maintenance and cure); Robinson v. Pocahontas, Inc., 477 F.2d 1048 (1st Cir.1973) (shipowner terminated all maintenance payments after seaman refused settlement offer; shipowner initially refused to pay past due wages to seaman, using pretext that he was fired for cause); Hodges v. Keystone Shipping Co., 578 F. Supp. 620 (S.D.Tex.1983) (shipowner, without justification, paid none of seaman's medical bills and paid no maintenance until suit filed, approximately ten months after receiving demand for maintenance and cure); Solet v. M/V Capt. H.V. Dufrene, 303 F. Supp. 980 (E.D.La.1969) (attorney's fees awarded for shipowner's willful and persistent default in paying maintenance).\n \n \n 11\n Courts have refused to allow awards of attorney's fees or punitive damages in cases in which the shipowner's conduct was not sufficiently egregious or wanton. See e.g., Ober v. Penrod Drilling Co., 726 F.2d 1035, 1037 n. 4 (5th Cir.1984) (per curiam) (attorney's fees and damages for mental anguish are not recoverable solely based on untimely payment of maintenance and cure); Richard v. Bauer Dredging Co., 433 F.2d 954 (5th Cir.1970) (per curiam) (record failed to demonstrate arbitrary or capricious conduct prerequisite to the allowance of attorney's fees); Constance v. Johnston Drilling Co., 422 F.2d 369 (5th Cir.1970) (per curiam) (seaman not entitled to attorney's fees; no suggestion that shipowner, who had paid lower amount of maintenance than that finally awarded, was lax in investigating claim or acted arbitrarily or unreasonably); cf. Smith v. Atlas Off-Shore Boat Service, Inc., 653 F.2d 1057, 1064 (5th Cir.1981) (punitive damages not imposed on shipowner who terminated employment of seaman who persisted in personal injury claim).\n \n \n 12\n No bright line separates the type of conduct that properly grounds an award of punitive damages--a shipowner's willful and callous default in its duty of investigating claims and providing maintenance and cure--from the type of conduct that does not support a punitive damages award. We do not attempt to draw the line between an absolute failure to provide maintenance and cure and the payment of a nominal amount of maintenance. Clearly, a shipowner who attempts to comply with its duty of providing maintenance by paying a seaman $1 a day would be subject to punitive damages. We think that shipowners who pay a grossly inadequate amount of maintenance in callous disregard of the seaman's rights should not be shielded from punitive damages. Therefore, we must distinguish between payment of a grossly inadequate maintenance sum and good faith payment of a maintenance rate that at trial may turn out to have been inadequate to cover the costs of food and lodging.\n \n \n 13\n We hold that Zapata's conduct in dealing with Harper's claim was not of a type, within the meaning of Vaughan v. Atkinson, that would support punitive damages and attorney's fees. Zapata's actions in paying $8 a day for maintenance were undoubtedly undertaken willfully in the sense that it intended to pay what it paid in fact. We think, however, that the willful, wanton and callous conduct required to ground an award of punitive damages requires an element of bad faith. The record shows that Zapata did not act in callous disregard of Harper's rights. Zapata timely investigated his claim, paid all his medical bills, and made regular maintenance payments.\n \n \n 14\n Although $8 daily is unquestionably a low maintenance payment, that sum had become entrenched over the years as the standard figure. See Caulfield v. AC & D Marine, Inc., 633 F.2d 1129, 1132 (5th Cir.1981); 1B Benedict on Admiralty Sec. 51 at 4-74 (7th ed. 1983). We acknowledge that the $8 rate has now been substantially eroded by decisions in the last few years. See Wood v. Diamond M. Drilling Co., 691 F.2d 1165, 1171 (5th Cir.1982) ($30 a day); Morel v. Sabine Towing & Transportation Co., 669 F.2d 345, 347-48 (5th Cir.1982) ($20 a day); Caulfield, 633 F.2d at 1132-33 ($15 a day). The $8 rate, however, has not totally disappeared. See Gaspard v. Taylor Diving & Salvage Co., 649 F.2d 372, 375 (5th Cir.1981); Tate v. American Tugs, Inc., 634 F.2d 869 (5th Cir.1981) (denial of injunction to increase $8 maintenance); Grove v. Dixie Carriers, Inc., 553 F. Supp. 777, 780 (E.D.La.1982) (seaman bound by $8 maintenance rate provided in collective bargaining agreement) (\"rate of $8.00 per day for maintenance ... has been the standard rate in this Circuit for a substantial number of years and from which the Courts have only recently departed\"). We decline to impute bad faith to Zapata's decision to pay what it considered to be the legal minimum. We note that, after Zapata terminated its settlement efforts and payments, Harper failed to seek an increase in the amount of maintenance he was receiving. Zapata received notice of Harper's claim for increased maintenance only two or three weeks before trial early in 1983. Accordingly, we reverse the awards of punitive damages and attorney's fees.\n \n III. Maintenance\n \n 15\n Zapata contests the jury's determination that $40 was the proper amount that it should have paid Harper. It claims that no evidence supports fixing maintenance at $40.\n \n \n 16\n \"Maintenance is intended to cover the reasonable costs the seaman incurs in acquiring food and lodging ashore during the period of his illness or disability.\" Caulfield v. AC & D Marine, Inc., 633 F.2d 1129, 1131 (5th Cir.1981). \"[T]he seaman's own testimony as to his expenses is competent, probative evidence of the amount of maintenance due.\" Id. at 1132.\n \n \n 17\n Although Harper provided no lay or expert testimony concerning his actual expenses for food ashore, he did testify that Zapata provided its seamen with a $20 daily allowance for food when Zapata sent them ashore for school or during stormy weather. This testimony constituted probative evidence to support a maintenance award covering food expenses.\n \n \n 18\n During Harper's period of cure, he resided at his home with his wife and children. The record, however, is devoid of any evidence that Harper incurred lodging expenses. Because a seaman is not entitled to maintenance unless he incurs costs, see Johnson v. United States, 333 U.S. 46, 68 S. Ct. 391, 92 L. Ed. 468 (1948); Marine Drilling, Inc. v. Landry, 302 F.2d 127 (5th Cir.1962), we hold that a reasonable jury could not have found that reasonable maintenance was $40. Any amount of the maintenance award designed to compensate Harper for reasonable lodging costs has no evidentiary basis.\n \n IV. Excessive Compensatory Damages\n \n 19\n Zapata claims that the jury's award of $1,000,000 in compensatory damages resulted from passion and prejudice. We need not speculate on the motivation of the jury, because we agree with Zapata's alternative argument: the award of compensatory damages exceeded the maximum that any reasonable jury could have awarded. See Caldarera v. Eastern Airlines, Inc., 705 F.2d 778 (5th Cir.1983); Perricone v. Kansas City Southern Railway, 630 F.2d 317 (5th Cir.1980); Howell v. Marmpegaso Compania Naviera, S.A., 536 F.2d 1032 (5th Cir.1976).\n \n \n 20\n During closing argument, counsel for Harper requested $390,000 for wage loss. He stated that he did not think that Harper would be totally disabled for the rest of his working life and that he would like to work, even if it was part-time. Thus, counsel took the figure of $340,358, supplied by an economic expert, which would compensate Harper for past and future wage loss, assuming that he would be able to do some work in the future at minimum wage. The estimate reached $390,000 by including a 15 percent increase to account for the likelihood that Harper would have been promoted to a higher paying job. Counsel also sought $150,000 as compensation for Harper's past and future pain and suffering, although he suggested that the jury could award twice or three times that amount. Assuming that the jury accepted counsel's estimate of total wage loss, it awarded $610,000 for pain and suffering, over four times the amount requested.\n \n \n 21\n Harper underwent two laminectomies and still experiences back pain and some leg pain. He compared his pain to a toothache. Harper's wife testified that he experiences pain and has trouble sleeping at night and that some of his days are worse than others. Harper testified that his back hurts as bad as it ever did and that walking at least a mile a day has not helped his condition.\n \n \n 22\n Dr. Eyster, the neurosurgeon who performed the first laminectomy, thought Harper was doing well after the operation. He stated that Harper had some back pain and no leg pain and estimated his permanent impairment at 15 percent. Dr. Hackman, the neurosurgeon who performed Harper's second laminectomy, saw him several times after surgery. Dr. Hackman put Harper on medication and stated that his aches and pains were helped tremendously. Dr. Hackman ran an electromyography (EMG) test, which was normal, and discharged Harper because his examination was unremarkable and his leg pain was gone. The doctor estimated Harper's permanent impairment at ten percent.\n \n \n 23\n Dr. Manale, an orthopedic surgeon, saw Harper twice. He agreed that the EMG showed that Harper was normal neurologically because his reflexes were fine. Dr. Manale estimated Harper's minimum physical impairment at 30 percent and thought that he should not work unless he could do some part-time work where he would not have to drive or leave his home. The doctor indicated that if Harper wore a corset it would help by reducing motion in his spine.\n \n \n 24\n Based on the evidence in the record, the jury could have concluded that Harper would never be able to work again. The highest amount in evidence that would compensate Harper for total wage loss, assuming total disability, was approximately $448,000.4 Assuming that the jury increased this figure by 15 percent to accommodate the possibility that Harper would have been promoted, the highest amount for total wage loss supported by the evidence was approximately $515,000. Thus, the jury awarded at least $485,000 for Harper's past and future pain and suffering.\n \n \n 25\n While Harper has suffered a painful injury, has undergone two back operations, and continues to live with some pain, his lot is far from excruciating agony. He can enjoy life by taking care in his activities and, perhaps, by the use of a corset and by taking some medication. We conclude that an award approximating $485,000 for pain is excessive.\n \n \n 26\n \"Our power to grant a remittitur is the same as that of the district court.\" Caldarera, 705 F.2d at 784. We determine that the maximum award of compensatory damages supported by the evidence is $800,000. We order a new trial of Harper's claims against Zapata unless Harper will accept a remittitur of the verdict--compensatory damages in the amount of $800,000 and maintenance in the amount of $20 daily.\n \n \n 27\n REVERSED and REMANDED.\n \n \n 28\n E. GRADY JOLLY, Circuit Judge, dissenting in part:\n \n \n 29\n I dissent in the name of common sense, to part IV of the opinion.\n \n \n 30\n The majority allows $515,000 for lost wages in this case. A conservative investment of these funds would yield to the plaintiff an annual income of $60,000. When the plaintiff was able bodied and fully employed by the defendant in this case, he earned approximately $30,0001 per annum. The injured plaintiff now earns $60,000 a year to compensate him for a job paying $30,000 per year. (I will not mention that the plaintiff is still able to work and earn a living in non-strenuous jobs.) Such an unrealistic and air-built result is rich fodder for those who would ridicule and contemn our courts.\n \n \n 31\n It is clear to me that in this case the jury became outraged over a matter which we now hold that it had no basis to be outraged about. The verdict, in all of its parts, is a product of that unfounded outrage. The case should be sent back for a retrial on damages. That is what I would do and what ought to be done in this case for the sake of a fair and sober result.\n \n \n \n 1\n Harper testified that, because of rising expenses, he asked Zapata for \"an advance or some kind of a loan or something to help out.\" He stated that he intended to repay the advances out of any recovery he obtained\n \n \n 2\n While discussing the punitive damages charge with counsel, the district court referred to the advances as loans. In the Order and Reasons, however, the district court referred three times to the termination of advances as a reduction in maintenance. Harper v. Zapata Off-Shore Co., 563 F. Supp. 576, 584-585 (E.D.La.1983)\n \n \n 3\n [Zapata goes] out and they get these injured workers and they make them advances, yeah. They don't tell you it's a gift, it's an advance and the poor man worries if he doesn't take what they want to do then he is in trouble and then they tell him if you go get a lawyer, exercise the rights ... we are going to cut you back to $56 a week and we are going to give you a little reminder of that with every check. We write down their maintenance, you see, the $112 every two weeks, $56 a week. That's what they do to scare these people.... Let me tell you, they've been doing this for years. How many millions of dollars do you think Zapata has saved by doing that over these years, how many millions do you think they've saved themselves by giving some poor fellow, go to his house, and have somebody sit down and tell him if you, we get an adversary position if you get a lawyer, we're going to cut you to $56 when the right time comes, we're going to settle it but it better be in our favor then when he comes by he makes some small settlement because the man is scared to get a lawyer. He can't live, Zapata has saved millions, taken millions out of people's pockets by denying them their legal rights by doing that and that's just not right\n \n \n 4\n Before he was injured, Harper worked seven days on, at twelve hours a day, and seven days off, at an hourly wage of $9.05. Dr. Boudreaux, Zapata's economic expert, calculated Harper's annual pay at approximately $24,940. Adding six percent to account for variations such as increased productivity and inflation, Dr. Boudreaux testified that if Harper could not return to work, $308,462 invested conservatively would produce an income stream representing the after-tax pay that Harper would have lost over the 19.5 years of his remaining work life. Dr. Boudreaux calculated Harper's lost wages from the time of the accident to the trial date at $41,565. Assuming that Harper could not work, the loss of his past and future wages equalled $350,027, based on an annual salary of $24,940\n Zapata stopped paying Harper on April 1, 1981, approximately three weeks after the accident. Harper introduced into evidence his W-2 statement for 1981, which reflected compensation from Zapata in the amount of $8,225. Harper's counsel asked Dr. Boudreaux to take that figure, which represented payment for a three-month period, and to assume that Harper would have continued at that level during the remainder of 1981. He then estimated an annual wage of $32,900. Taking the tax effect into account, the economist calculated that Harper's annual wage, based on the W-2 statement, was 28 percent higher than the annual wage estimate of $24,940. Increasing the figure of $350,027 by 28 percent yielded $448,035.\n \n \n 1\n The plaintiff earned $9.05 per hour. With overtime, the plaintiff's pay at the time of the accident, if the proposed work-week schedule was actually worked, would have been $32,900 a year\n \n \n ",
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"opinion_text": "\nREAVLEY, Circuit Judge:\nLee D. Harper brought suit under the Jones Act and general maritime law for injuries suffered while working on Zapata Off-Shore Company’s drilling barge and for inadequate maintenance. By this appeal, Zapata challenges the award of punitive damages and the amount of compensatory damages and maintenance found by the jury. We reverse and remand.\nI. Background\nHarper was attempting to carry a 90-pound rotary coupling part from the heliport on Zapata’s drilling barge to a storage room below. While Harper was going down a steep flight of stairs, the barge shifted and he stumbled, injuring his back. The accident required Harper to have back surgery on two occasions to remove extrusions of ruptured discs. Following the incident Zapata paid for Harper’s medical expenses and gave him a check for $638 every two weeks. The check specified that $112 was for maintenance and that $526 was an \"advance.” When Zapata learned that Harper was suing, it terminated the advances, but continued to pay maintenance of $8 a day ($112 every two weeks).\nIn a jury trial Harper sued for compensatory damages, increased maintenance, and attorney’s fees and punitive damages for Zapata’s failure to pay a proper amount of maintenance. The jury found that Zapata was negligent and that the vessel was un-seaworthy and awarded Harper $40 a day in maintenance, $1,000,000 in compensatory damages, $500,000 in punitive damages, and $5,000 in attorney’s fees. In response to Zapata’s motion for new trial, the district court reduced the punitive damages award to $250,000 on remittitur, which Harper accepted.\nII. Punitive Damages and Attorney’s Fees\nZapata’s position in the briefs and at oral argument was that lump-sum punitive damage awards could not be grounded on a failure to pay maintenance. The seminal case of Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962), had been construed differently by the First and Second Circuits. Compare Kraljic v. Berman Enterprises, Inc., 575 F.2d 412 (2d Cir.1978) (Vaughan authorizes only attorney’s fees as punitive damages) with Robinson v. Pocahontas, Inc., 477 F.2d 1048 (1st Cir.1973) (traditional exemplary damages permitted if shipowner wantonly refuses to pay maintenance). We have recently agreed with the First Circuit that punitive damages for the willful and arbitrary refusal to pay maintenance are available under general maritime law. See Holmes v. J. Ray McDermott & Co., 734 F.2d 1110, 1118 (5th Cir.1984); see also In re Merry Shipping, Co., 650 F.2d 622 (5th Cir.1981) (Unit B) (punitive damages allowed for willfully and wantonly creating or maintaining unseaworthy conditions).\nIt does not follow, however, that punitive damages may be based on a shipowner’s failure to pay adequate maintenance. Zapata argues that the district court erred by allowing the jury to impose punitive damages merely because Zapata paid a maintenance rate that the jury later found to be inadequate. We agree. On this record, the district court should not have submitted the questions of punitive damages or attorney’s fees to the jury. See Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir.1969) (en banc). Both awards must be grounded on the same type of egregious shipowner conduct exhibiting wanton and intentional disregard of a seaman’s rights. See Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962); Kraljic v. Berman Enterprises, Inc., 575 F.2d 412, 416 (2d Cir.1978).\n*89Harper does not dispute that Zapata consistently paid the traditional maintenance rate of $8 a day and designated those payments as maintenance. Instead, he attacks a settlement procedure employed by Zapata in dealing with injured employees. Every two weeks, while Harper was recuperating, Zapata paid him $526 as an “advance,” along with maintenance. In addition, Zapata twice provided Harper with $3000 to help out with household expenses and personal bills. Testimony established that Zapata had no intention of recovering these “advances,” but that the payments were made with a view toward settling claims without litigation.1 Zapata’s claims representative stated at trial that he informed Harper that he would not have to repay the advances, but that if he instituted suit, Zapata would terminate the advances and pay the $8 amount that it thought was its legal obligation.\nDuring the examination of Zapata’s claims representatives, the district court instructed the jury that Zapata’s advances were not to be credited toward maintenance — “the advances [have] nothing to do with the proper amount of maintenance.”2 Yet the court, in referring to the punitive damages issue, told the jury that it “should consider the total actions of Zapata in connection with this case____”\nWe cannot escape the conclusion that the jury penalized Zapata for terminating its advances. During closing argument, Harper’s counsel repeatedly emphasized the millions of dollars Zapata saved with settlement efforts.3\nFor purposes of the punitive damages issue, the district court appeared to have considered the settlement advances as maintenance payments. The court stated that it “share[d] the jury’s apparent outrage produced by defendant’s intentional evil practice of attempting to prevent litigation by cutting the maintenance rate to a starvation level.” Harper v. Zapata OffShore Co., 563 F.Supp. 576, 585 (E.D.La. 1983). Despite stating that “the evidence supporting punitive damages was overwhelming,” the court cited only the termination of advances and the “starvation payment” of $8 a day. The district court did not find that the advances were maintenance payments in disguise, and the jury was not allowed to credit the advances toward Zapata’s maintenance payments. Therefore, we think it was improper to view termination of settlement efforts as an evil reduction in maintenance. The special verdict only asked, “Was defendant’s failure to pay an amount of maintenance higher than $8 per day intentional and with callous disregard for the plaintiff’s rights?”\nThe cases in which punitive damages or attorney’s fees have been granted share *90the common element of a shipowner’s default, either in failing to provide maintenance and cure or in failing to investigate an injured seaman’s claim. See Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962) (shipowner exhibited willful and persistent default and did not investigate seaman’s claim); Holmes v. J. Ray McDermott & Co., 734 F.2d 1110 (5th Cir. 1984) (shipowner failed to reinstate seaman’s maintenance and cure after seaman gave notice of claim based on diagnosis of herniated disc); Picou v. American Offshore Fleet, Inc., 576 F.2d 585 (5th Cir. 1978) (trial court awarded attorney’s fees and punitive damages because shipowner, in face of seaman’s attempts to obtain maintenance and cure, failed to investigate claim and to pay maintenance); Kraljic v. Berman Enterprises, Inc., 575 F.2d 412 (2d Cir.1978) (attorney’s fees awarded because shipowner willfully refused to provide maintenance and cure); Robinson v. Pocahontas, Inc., 477 F.2d 1048 (1st Cir. 1973) (shipowner terminated all maintenance payments after seaman refused settlement offer; shipowner initially refused to pay past due wages to seaman, using pretext that he was fired for cause); Hodges v. Keystone Shipping Co., 578 F.Supp. 620 (S.D.Tex.1983) (shipowner, without justification, paid none of seaman’s medical bills and paid no maintenance until suit filed, approximately ten months after receiving demand for maintenance and cure); So let v. M/V Capt. H.V. Dufrene, 303 F.Supp. 980 (E.D.La.1969) (attorney’s fees awarded for shipowner’s willful and persistent default in paying maintenance).\nCourts have refused to allow awards of attorney’s fees or punitive damages in cases in which the shipowner’s conduct was not sufficiently egregious or wanton. See e.g., Ober v. Penrod Drilling Co., 726 F.2d 1035, 1037 n. 4 (5th Cir.1984) (per curiam) (attorney’s fees and damages for mental anguish are not recoverable solely based on untimely payment of maintenance and cure); Richard v. Bauer Dredging Co., 433 F.2d 954 (5th Cir.1970) (per curiam) (record failed to demonstrate arbitrary or capricious conduct prerequisite to the allowance of attorney’s fees); Constance v. Johnston Drilling Co., 422 F.2d 369 (5th Cir.1970) (per curiam) (seaman not entitled to attorney’s fees; no suggestion that shipowner, who had paid lower amount of maintenance than that finally awarded, was lax in investigating claim or acted arbitrarily or unreasonably); cf. Smith v. Atlas Off-Shore Boat Service, Inc., 653 F.2d 1057, 1064 (5th Cir.1981) (punitive damages not imposed on shipowner who terminated employment of seaman who persisted in personal injury claim).\nNo bright line separates the type of conduct that properly grounds an award of punitive damages — a shipowner’s willful and callous default in its duty of investigating claims and providing maintenance and cure — from the type of conduct that does not support a punitive damages award. We do not attempt to draw the line between an absolute failure to provide maintenance and cure and the payment of a nominal amount of maintenance. Clearly, a shipowner who attempts to comply with its duty of providing maintenance by paying a seaman $1 a day would be subject to punitive damages. We think that shipowners who pay a grossly inadequate amount of maintenance in callous disregard of the seaman’s rights should not be shielded from punitive damages. Therefore, we must distinguish between payment of a grossly inadequate maintenance sum and good faith payment of a maintenance rate that at trial may turn out to have been inadequate to cover the costs of food and lodging.\nWe hold that Zapata’s conduct in dealing with Harper’s claim was not of a type, within the meaning of Vaughan v. Atkinson, that would support punitive damages and attorney’s fees. Zapata’s actions in paying $8 a day for maintenance were undoubtedly undertaken willfully in the sense that it intended to pay what it paid in fact. We think, however, that the willful, wanton and callous conduct required to ground an award of punitive damages requires an element of bad faith. The record shows that Zapata did not act in *91callous disregard of Harper’s rights. Zapata timely investigated his claim, paid all his medical bills, and made regular maintenance payments.\nAlthough $8 daily is unquestionably a low maintenance payment, that sum had become entrenched over the years as the standard figure. See Caulfield v. AC & D Marine, Inc., 633 F.2d 1129, 1132 (5th Cir. 1981); IB Benedict on Admiralty § 51 at 4-74 (7th ed. 1983). We acknowledge that the $8 rate has now been substantially eroded by decisions in the last few years. See Wood v. Diamond M. Drilling Co., 691 F.2d 1165, 1171 (5th Cir.1982) ($30 a day); Morel v. Sabine Towing & Transportation Co., 669 F.2d 345, 347-48 (5th Cir.1982) ($20 a day); Caulfield, 633 F.2d at 1132-33 ($15 a day). The $8 rate, however, has not totally disappeared. See Gaspard v. Taylor Diving & Salvage Co., 649 F.2d 372, 375 (5th Cir.1981); Tate v. American Tugs, Inc., 634 F.2d 869 (5th Cir.1981) (denial of injunction to increase $8 maintenance); Grove v. Dixie Carriers, Inc., 553 F.Supp. 777, 780 (E.D.La.1982) (seaman bound by $8 maintenance rate provided in collective bargaining agreement) (“rate of $8.00 per day for maintenance ... has been the standard rate in this Circuit for a substantial number of years and from which the Courts have only recently departed”). We decline to impute bad faith to Zapata’s decision to pay what it considered to be the legal minimum. We note that, after Zapata terminated its settlement efforts and payments, Harper failed to seek an increase in the amount of maintenance he was receiving. Zapata received notice of Harper’s claim for increased maintenance only two or three weeks before trial early in 1983. Accordingly, we reverse the awards of punitive damages and attorney’s fees.\nIII. Maintenance\nZapata contests the jury’s determination that $40 was the proper amount that it should have paid Harper. It claims that no evidence supports fixing maintenance at $40.\n“Maintenance is intended to cover the reasonable costs the seaman incurs in acquiring food and lodging ashore during the period of his illness or disability.” Caul-field v. AC & D Marine, Inc., 633 F.2d 1129, 1131 (5th Cir.1981). “[T]he seaman’s own testimony as to his expenses is competent, probative evidence of the amount of maintenance due.” Id. at 1132.\nAlthough Harper provided no lay or expert testimony concerning his actual expenses for food ashore, he did testify that Zapata provided its seamen with a $20 daily allowance for food when Zapata sent them ashore for school or during stormy weather. This testimony constituted probative evidence to support a maintenance award covering food expenses.\nDuring Harper’s period of cure, he resided at his home with his wife and children. The record, however, is devoid of any evidence that Harper incurred lodging expenses. Because a seaman is not entitled to maintenance unless he incurs costs, see Johnson v. United States, 333 U.S. 46, 68 S.Ct. 391, 92 L.Ed. 468 (1948); Marine Drilling, Inc. v. Landry, 302 F.2d 127 (5th Cir.1962), we hold that a reasonable jury could not have found that reasonable maintenance was $40. Any amount of the maintenance award designed to compensate Harper for reasonable lodging costs has no evidentiary basis.\nIV. Excessive Compensatory Damages\nZapata claims that the jury’s award of $1,000,000 in compensatory damages resulted from passion and prejudice. We need not speculate on the motivation of the jury, because we agree with Zapata’s alternative argument: the award of compensatory damages exceeded the maximum that any reasonable jury could have awarded. See Caldarera v. Eastern Airlines, Inc., 705 F.2d 778 (5th Cir.1983); Perricone v. Kansas City Southern Railway, 630 F.2d 317 (5th Cir.1980); Howell v. Marmpegaso Compania Naviera, S.A., 536 F.2d 1032 (5th Cir.1976).\n*92During closing argument, counsel for Harper requested $390,000 for wage loss. He stated that he did not think that Harper would be totally disabled for the rest of his working life and that he would like to work, even if it was part-time. Thus, counsel took the figure of $340,358, supplied by an economic expert, which would compensate Harper for past and future wage loss, assuming that he would be able to do some work in the future at minimum wage. The estimate reached $390,000 by including a 15 percent increase to account for the likelihood that Harper would have been promoted to a higher paying job. Counsel also sought $150,000 as compensation for Harper’s past and future pain and suffering, although he suggested that the jury could award twice or three times that amount. Assuming that the jury accepted counsel’s estimate of total wage loss, it awarded $610,000 for pain and suffering, over four times the amount requested.\nHarper underwent two laminectomies and still experiences back pain and some leg pain. He compared his pain to a toothache. Harper’s wife testified that he experiences pain and has trouble sleeping at night and that some of his days are worse than others. Harper testified that his back hurts as bad as it ever did and that walking at least a mile a day has not helped his condition.\nDr. Eyster, the neurosurgeon who performed the first laminectomy, thought Harper was doing well after the operation. He stated that Harper had some back pain and no leg pain and estimated his permanent impairment at 15 percent. Dr. Hackman, the neurosurgeon who performed Harper’s second laminectomy, saw him several times after surgery. Dr. Hackman put Harper on medication and stated that his aches and pains were helped tremendously. Dr. Hackman ran an electromyography (EMG) test, which was normal, and discharged Harper because his examination was unremarkable and his leg pain was gone. The doctor estimated Harper’s permanent impairment at ten percent.\nDr. Manale, an orthopedic surgeon, saw Harper twice. He agreed that the EMG showed that Harper was normal neurologically because his reflexes were fine. Dr. Manale estimated Harper’s minimum physical impairment at 30 percent and thought that he should not work unless he could do some part-time work where he would not have to drive or leave his home. The doctor indicated that if Harper wore a corset it would help by reducing motion in his spine.\nBased on the evidence in the record, the jury could have concluded that Harper would never be able to work again. The highest amount in evidence that would compensate Harper for total wage loss, assuming total disability, was approximately $448,000.4 Assuming that the jury increased this figure by 15 percent to accommodate the possibility that Harper would have been promoted, the highest amount for total wage loss supported by the evidence was approximately $515,000. Thus, *93the jury awarded at least $485,000 for Harper’s past and future pain and suffering.\nWhile Harper has suffered a painful injury, has undergone two back operations, and continues to live with some pain, his lot is far from excruciating agony. He can enjoy life by taking care in his activities and, perhaps, by the use of a corset and by taking some medication. We conclude that an award approximating $485,000 for pain is excessive.\n“Our power to grant a remittitur is the same as that of the district court.” Cal-darera, 705 F.2d at 784. We determine that the maximum award of compensatory damages supported by the evidence is $800,000. We order a new trial of Harper’s claims against Zapata unless Harper will accept a remittitur of the verdict — compensatory damages in the amount of $800,000 and maintenance in the amount of $20 daily-\nREVERSED and REMANDED.\n\n. Harper testified that, because of rising expenses, he asked Zapata for “an advance or some kind of a loan or something to help out.” He stated that he intended to repay the advances out of any recovery he obtained.\n\n\n. While discussing the punitive damages charge with counsel, the district court referred to the advances as loans. In the Order and Reasons, however, the district court referred three times to the termination of advances as a reduction in maintenance. Harper v. Zapata Off-Shore Co., 563 F.Supp. 576, 584-585 (E.D.La.1983).\n\n\n. [Zapata goes] out and they get these injured workers and they make them advances, yeah. They don’t tell you it’s a gift, it’s an advance and the poor man worries if he doesn’t take what they want to do then he is in trouble and then they tell him if you go get a lawyer, exercise the rights ... we are going to cut you back to $56 a week and we are going to give you a little reminder of that with every check. We write down their maintenance, you see, the $112 every two weeks, $56 a week. That’s what they do to scare these people____ Let me tell you, they've been doing this for years. How many millions of dollars do you think Zapata has saved by doing that over these years, how many millions do you think they've saved themselves by giving some poor fellow, go to his house, and have somebody sit down and tell him if you, we get an adversary position if you get a lawyer, we’re going to cut you to $56 when the right time comes, we’re going to settle it but it better be in our favor then when he comes by he makes some small settlement because the man is scared to get a lawyer. He can’t live, Zapata has saved millions, taken millions out of people's pockets by denying them their legal rights by doing that and that’s just not right.\n\n\n. Before he was injured, Harper worked seven days on, at twelve hours a day, and seven days off, at an hourly wage of $9.05. Dr. Boudreaux, Zapata’s economic expert, calculated Harper's annual pay at approximately $24,940. Adding six percent to account for variations such as increased productivity and inflation, Dr. Bou-dreaux testified that if Harper could not return to work, $308,462 invested conservatively would produce an income stream representing the after-tax pay that Harper would have lost over the 19.5 years of his remaining work life. Dr. Bou-dreaux calculated Harper’s lost wages from the time of the accident to the trial date at $41,565. Assuming that Harper could not work, the loss of his past and future wages equalled $350,027, based on an annual salary of $24,940. Zapata stopped paying Harper on April 1, 1981, approximately three weeks after the accident. Harper introduced into evidence his W-2 statement for 1981, which reflected compensation from Zapata in the amount of $8,225. Harper's counsel asked Dr. Boudreaux to take that figure, which represented payment for a three-month period, and to assume that Harper would have continued at that level during the remainder of 1981. He then estimated an annual wage of $32,900. Taking the tax effect into account, the economist calculated that Harper’s annual wage, based on the W-2 statement, was 28 percent higher than the annual wage estimate of $24,940. Increasing the figure of $350,027 by 28 percent yielded $448,035.\n\n",
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"opinion_text": "\nE. GRADY JOLLY,\nCircuit Judge, dissenting in part:\nI dissent in the name of common sense, to part IV of the opinion.\nThe majority allows $515,000 for lost wages in this case. A conservative investment of these funds would yield to the plaintiff an annual income of $60,000. When the plaintiff was able bodied and fully employed by the defendant in this case, he earned approximately $30,0001 per annum. The injured plaintiff now earns $60,000 a year to compensate him for a job paying $30,000 per year. (I will not mention that the plaintiff is still able to work and earn a living in non-strenuous jobs.) Such an unrealistic and air-built result is rich fodder for those who would ridicule and contemn our courts.\nIt is clear to me that in this case the jury became outraged over a matter which we now hold that it had no basis to be outraged about. The verdict, in all of its parts, is a product of that unfounded outrage. The case should be sent back for a retrial on damages. That is what I would do and what ought to be done in this case for the sake of a fair and sober result.\n\n. The plaintiff earned $9.05 per hour. With overtime, the plaintiffs pay at the time of the accident, if the proposed work-week schedule was actually worked, would have been $32,900 a year.\n\n",
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] |
Fifth Circuit
|
Court of Appeals for the Fifth Circuit
|
F
|
USA, Federal
|
1,600,593 |
Gross, Hazouri, Polen
| 2009-01-21 | false |
rosenberg-v-gaballa
|
Rosenberg
|
Rosenberg v. GABALLA
|
Erwin ROSENBERG, Appellant, v. Maged GABALLA and Amani Gaballa, Appellees
|
Erwin Rosenberg, Miami Beach, pro se., Robert B. Miller of Tabas, Freedman, Soloff & Miller, P.A., Miami, for appellees.
| null | null | null | null | null | null | null |
Rehearing Denied Feb. 23, 2009.
| null | null | 3 |
Published
| null |
<parties id="b1199-4">
Erwin ROSENBERG, Appellant, v. Maged GABALLA and Amani Gaballa, Appellees.
</parties><br><docketnumber id="b1199-7">
No. 4D08-1445.
</docketnumber><br><court id="b1199-8">
District Court of Appeal of Florida, Fourth District.
</court><br><decisiondate id="b1199-9">
Jan. 21, 2009.
</decisiondate><br><otherdate id="b1199-10">
Rehearing Denied Feb. 23, 2009.
</otherdate><br><attorneys id="b1199-16">
Erwin Rosenberg, Miami Beach, pro se.
</attorneys><br><attorneys id="b1199-17">
Robert B. Miller of Tabas, Freedman, Soloff & Miller, P.A., Miami, for appellees.
</attorneys>
|
[
"1 So. 3d 1149"
] |
[
{
"author_str": "Hazouri",
"per_curiam": false,
"type": "010combined",
"page_count": null,
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"author_id": 6930,
"opinion_text": "\n1 So. 3d 1149 (2009)\nErwin ROSENBERG, Appellant,\nv.\nMaged GABALLA and Amani Gaballa, Appellees.\nNo. 4D08-1445.\nDistrict Court of Appeal of Florida, Fourth District.\nJanuary 21, 2009.\nRehearing Denied February 23, 2009.\nErwin Rosenberg, Miami Beach, pro se.\nRobert B. Miller of Tabas, Freedman, Soloff & Miller, P.A., Miami, for appellees.\nHAZOURI, J.\nAppellant, Erwin Rosenberg, who was the original counsel for the various defendants below, appeals from the trial court's award of attorney's fees to appellees/plaintiffs under the \"inequitable conduct doctrine\" as set forth in Moakley v. Smallwood, 826 So. 2d 221 (Fla.2002). We affirm.\nPrior to assessing attorney's fees against Rosenberg, the trial court conducted an evidentiary hearing and concluded:\nBased on the detailed factual findings stated above, this Court makes the express finding that Mr. Rosenberg engaged in bad faith conduct, and that Mr. Rosenberg has not shown cause why he should not have to pay Plaintiffs' attorney's fees for necessitating all of Plaintiffs' motions to compel since the time Mr. Rosenberg entered his appearance in the case. This Court did not find credible Mr. Rosenberg's testimony that he was acting merely as a zealous advocate for his clients. Although Mr. Rosenberg testified that his initial production of documents in 2006 was all of the documents which his clients gave to him, Mr. Rosenberg at that time did not file a written response to Plaintiffs' request for production pursuant to rule 1.350. Filing a written response was Mr. Rosenberg's responsibility, not that of his clients. As a result of Mr. Rosenberg's failure to provide a written response, Plaintiffs had no knowledge regarding which categories of its requests the documents were responsive to, nor which categories were not being responded to. Mr. Rosenberg's testimony that he did not seek to have his clients *1150 produce more documents in response to Judge Esquiroz's two orders because Judge Esquiroz's orders supposedly were not enforceable has no basis in law. Mr. Rosenberg's explanation that he did not review all of the documents which he e-mailed to Plaintiffs' counsel because this Court's June 21st order directed \"Defendants,\" not \"Defendants' counsel,\" to produce all documents responsive to Plaintiffs' requests for production, is wholly unconvincing. Whether the order referred to \"Defendants\" or \"Defendants' counsel,\" Mr Rosenberg had an ethical and professional obligation to review the documents which he produced. The most egregious bad faith action which Mr. Rosenberg committed was re-stating in his June 28th written response the same objections which this Court already had overruled, without Mr. Rosenberg taking any further action to comply with Plaintiffs' requests for production or with this Court's orders. Mr. Rosenberg's explanation that he interpreted rule 1.350 as saying that he merely should repeat the overruled objections \"as a zealous advocate,\" and that Plaintiffs' seeking of a written response served as Plaintiffs' implied waiver of this Court's earlier orders overruling his objections, simply defies common sense. Such flouting of this Court's orders is the very definition of bad faith conduct. This Court finds Mr. Rosenberg to be an intelligent person, and this Court does not believe that the gravity of his repeated misconduct can be accepted as merely an error in judgment or ignorance of the rules.\nRosenberg argues that when section 57.105, Florida Statutes (1999), was amended, it rendered obsolete the \"inequitable conduct doctrine\" of Moakley which permits a trial court to use its \"inherent authority to impose attorneys' fees against an attorney for bad faith conduct.\" Moakley, 826 So.2d at 226. We disagree.\nSection 57.105(1) provides for the payment of attorney's fees to the prevailing party by the losing party and the losing party's attorney if the court finds during a civil proceeding that they knew or should have known that a claim or defense when presented was not supported by facts or by the then-existing law. This section is limited to the claims or defenses and does not apply to not providing discovery requested. Subsection (2) is inapplicable as it also has to do with the claim or defense being based upon a good faith argument for modification of the law. Subsection (3) does provide for damages for the moving party when the opposing party takes any action which was taken primarily for the purpose of unreasonable delay. Although Rosenberg's actions or inaction may have resulted in unreasonable delay, the trial court's application of Moakley focused on appellant's bad faith conduct in the performance of his job, not on any delay. Subsection (4) of the statute provides: \"The provisions of this section are supplemental to other sanctions or remedies available under law or under court rules.\" § 57.105(4), Fla. Stat. (1999).\nRosenberg also argues that the findings of fact made by the trial court are not supported by testimony, stipulations or affidavits. Appellant has not provided this court with a transcript of the hearing, nor did he prepare a statement of the evidence under Florida Rule of Appellate Procedure 9.200(b)(4). Without either of these, this court must presume the results below are correct. See Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla.1979).\nAffirmed.\nGROSS, C.J., and POLEN, J., concur.\n",
"ocr": false,
"opinion_id": 1600593
}
] |
District Court of Appeal of Florida
|
District Court of Appeal of Florida
|
SA
|
Florida, FL
|
2,477,998 |
Edward F. Shea
| 2010-12-13 | false |
national-city-bank-na-v-prime-lending-inc
| null |
National City Bank, N.A. v. Prime Lending, Inc.
|
NATIONAL CITY BANK, N.A. and the PNC Financial Services Group, Inc., Plaintiffs, v. PRIME LENDING, INC.; Ronald D. Thomas and John Does 1-20, Defendants
|
Christopher P. Fisher, Isaac J. Eddington, Joseph A. Castrodale, Ulmer & Berne LLP, Cleveland, OH, Matthew W. Daley, Thomas Dean Cochran, Witherspoon Kelley Davenport & Toole, Spokane, WA,, Scott A. Meyers, Ulmer & Berne LLP, Chicago, IL, for Plaintiffs., James E. Breitenbucher, Karen F. Jones, Riddell Williams PS, Seattle, WA, Erik H. Thorleifson, Patrick Joseph Kirby, Campbell Bissell & Kirby PLLC, Spokane, WA, for Defendants.
| null | null | null | null | null | null | null |
Opinion Denying Motion to Amend Dec. 13. 2010.
| null | null | 0 |
Published
| null |
<parties id="b1295-4">
NATIONAL CITY BANK, N.A. and the PNC Financial Services Group, Inc., Plaintiffs, v. PRIME LENDING, INC.; Ronald D. Thomas and John Does 1-20, Defendants.
</parties><br><docketnumber id="b1295-6">
No. CV-10-34-EFS.
</docketnumber><br><court id="b1295-7">
United States District Court, E.D. Washington.
</court><br><decisiondate id="b1295-9">
July 20, 2010.
</decisiondate><br><otherdate id="b1295-10">
Opinion Denying Motion to Amend Dec. 13. 2010.
</otherdate><br><attorneys id="b1299-12">
<span citation-index="1" class="star-pagination" label="1261">
*1261
</span>
Christopher P. Fisher, Isaac J. Eddington, Joseph A. Castrodale, Ulmer
<em>
&
</em>
Berne LLP, Cleveland, OH, Matthew W. Daley, Thomas Dean Cochran, Witherspoon Kelley Davenport & Toole, Spokane, WA,
</attorneys><br><attorneys id="b1299-14">
Scott A. Meyers, Ulmer & Berne LLP, Chicago, IL, for Plaintiffs.
</attorneys><br><attorneys id="b1299-15">
James E. Breitenbucher, Karen F. Jones, Riddell Williams PS, Seattle, WA, Erik H. Thorleifson, Patrick Joseph Kirby, Campbell Bissell & Kirby PLLC, Spokane, WA, for Defendants.
</attorneys>
|
[
"737 F. Supp. 2d 1257"
] |
[
{
"author_str": "Shea",
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": null,
"author_id": 2936,
"opinion_text": "\n737 F.Supp.2d 1257 (2010)\nNATIONAL CITY BANK, N.A. and the PNC Financial Services Group, Inc., Plaintiffs,\nv.\nPRIME LENDING, INC.; Ronald D. Thomas and John Does 1-20, Defendants.\nNo. CV-10-34-EFS.\nUnited States District Court, E.D. Washington.\nJuly 20, 2010.\nOpinion Denying Motion to Amend December 13, 2010.\n*1261 Christopher P. Fisher, Isaac J. Eddington, Joseph A. Castrodale, Ulmer & Berne LLP, Cleveland, OH, Matthew W. Daley, Thomas Dean Cochran, Witherspoon Kelley Davenport & Toole, Spokane, WA, Scott A. Meyers, Ulmer & Berne LLP, Chicago, IL, for Plaintiffs.\nJames E. Breitenbucher, Karen F. Jones, Riddell Williams PS, Seattle, WA, Erik H. Thorleifson, Patrick Joseph Kirby, Campbell Bissell & Kirby PLLC, Spokane, WA, for Defendants.\n\nORDER DENYING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION\nEDWARD F. SHEA, District Judge.\nAn evidentiary hearing occurred in the above-captioned matter on April 27 and 28, 2010, in Richland, Washington. Christopher P. Fisher, Isaac J. Eddington, Joseph A. Castrodale, and Thomas Cochran appeared for Plaintiffs National City Bank, N.A. (\"National City\") and The PNC Financial Services Group, Inc. (\"PNC\"); Karen F. Jones and James E. Breitenbucher appeared for Defendant Prime Lending, Inc. (\"Prime\"); and Patrick Kirby and Erik H. Thorleifson appeared for Defendant Ronald D. Thomas (\"Thomas\"). Before the Court was Plaintiffs' Motion for Preliminary Injunction (Ct. Rec. 50), in which they seek to prevent Defendants from recruiting current or former National City employees, serving former National City customers, and disclosing or using National City's trade secrets. The Court heard testimony from John Schleck and considered the declarations submitted by counsel (Ct. Recs. 52, 54, 55, 92, 93, 95, 96, 97, 98, 99, 114, 115, 130, 131, & 132). Because Plaintiffs did not meet their burden of showing entitlement to a preliminary injunction, the Court denies Plaintiffs' motion.\n\nI. Background[1]\nNational City was a nation-wide bank based in Cleveland that provided home *1262 mortgage loans. Thomas was National City's Spokane branch manager. He earned a small salary for supervising the loan officers, but most of his compensation came from commissions on loans he himself originated.\nIn December 2007, in return for his good work and loyalty, National City offered Thomas restricted stock, subject to a Restricted Stock Agreement (\"RSA\") that Thomas signed. Significantly, the RSA prevented Thomas from soliciting National City customers for one year after leaving National City's employment, disclosing or using any National City trade secret, and recruiting any National City employee for three years after leaving National City's employment. (Ct. Rec. 52 Ex. 3.) Additionally, in his February 2007 Bank Manager Compensation Agreement (\"BMCA\"), he agreed not to disclose National City's confidential information and not to solicit any National City employee for six months after leaving National City. (Id. Ex. 4 at 4-5.) Moreover, he agreed in the BMCA that use of confidential information could result in irreparable harm and could be enjoined.\nNational City's loan origination software was called Byte. Loan officers used Byte to store useful solicitation information about current and potential customers, some of which was publicly available and some of which was developed through years of customer interactions. For example, a customer's Byte file might include how the customer preferred to be contacted, the customer's birthday, and the age of the customer's car, all of which is confidential information. When Thomas joined National City, he uploaded all his customer information onto Byte. Customer information always flowed from the loan officers to National City, never the other way around.\nIn December 2008, PNC used Troubled Asset Relief Program funds to merge with National City. PNC was the surviving company and it decided to eliminate the National City brand. The merger also brought significant changes to PNC's mortgage loan origination policies. PNC centralized operations so that only two locations underwrote and packaged loans, whereas processors performed those tasks in all National City offices before. This move eliminated many loan processing jobs in field offices, including Spokane.\nPNC also standardized compensation and employee functions across all offices. Most significant were the changes to internal refinance commissions and branch manager duties. Internal refinances, or refinances on loans originated with National City or PNC, were capped at thirty-five basis points, about half the previous commission. Loans subject to PNC's churn policy, or those that were refinanced shortly after the initial closing, were exempted from this cap. Branch managers were also newly prohibited from producing loans. PNC wanted its branch managers to spend their time recruiting and training loan officers rather than originating loans.\nThese changes caused concern in National City's branches. Loan officers worried that eliminating loan processors in the field offices would cause inefficiencies and slow down production. In turn, sluggish loan processing would drive away customers. All employees worried about their income. In 2009, most mortgage business came from refinancing, not from original purchase loans. Low interest rates and an economic slump encouraged that pattern. Many loan officers worked primarily on internal refinances, and with the changes after the merger, their commissions stood to be reduced by half. Branch managers such as Thomas were particularly worried because most of their income came from loan origination commissions. The new compensation plan completely eliminated that income source for them. Although *1263 branch managers still had an incentive to help loan officers because their compensation was based partly on the branch's total loan production, over half of their income would disappear with the new changes.\nThomas shared his concerns with PNC's CEO, Saiyid Naqvi, when Naqvi met with branch managers in Seattle on April 22 and 23, 2009. (Ct. Rec. 93 at 13.) Naqvi responded that everything would be all right, and loan officers who disagreed with the changes could leave. Id. at 14.\nNaqvi spoke half-presciently. Everything was not all right for PNC, but many loan officers left. After implementing the changes, 80% of PNC's workforce in the western United States resigned. (Ct. Rec. 95 Ex. 1 at 25.) The Spokane branch was decimated in that mass resignation.\nThe first employee to leave the Spokane office was a loan officer named Greg Templeton, who was dissatisfied with the changes to the compensation schedule. During the spring of 2009, Templeton began talking with Prime. He first learned of Prime when he contacted a former colleague named Jillian Tuattoo, who worked in Prime's Puyallup office. (Ct. Rec. 98 at 4.) After Prime hired Templeton, it became interested in acquiring National City's entire Spokane branch and began recruiting Thomas. In May 2009, Thomas and several of his loan officers flew to Prime's corporate headquarters in Dallas for a recruiting meeting. (Ct. Rec. 97 at 4.) Either then or soon after, Prime hired Thomas to run its Spokane branch.\nThomas remained a National City employee for several weeks after accepting a job with Prime. During that time he effectively began working for Prime although still employed by PNC.[2] For example, Thomas sent contact information for several National City employees to Kale Salmans, Prime's Vice President, so that Salmans could recruit them.[3] (Ct. Rec. 53 Ex. 3.) Thomas also sent Salmans a pro forma, or a business estimate for the Spokane branch, which included some confidential information about National City's business strategy. (Ct. Rec. 115 Ex. 8 at 91.)\nNor was Thomas the only one to disclose confidential National City information to Prime. Other employees sent Prime their mortgage pipelines, which detailed their pending loans, in order to show that they were active officers. Id. at 84-86. Salmans repeatedly instructed the incoming employees not to bring with them any information that was not publicly available, however. (Ct. Rec. 97 at 6; id. Ex. A.)\nOn July 14, 2009, ten of National City's Spokane loan officers resigned and left for Prime. The only remaining employees in the office were Thomas and his brother Chad. Thomas feigned surprise and ignorance at the defection. He said he had no idea where the loan officers went but that he wanted to remain at National City to try to rebuild the branch.\nWhile Thomas stayed with National City for a few more weeks, he continued to work for Prime. He told John Schleck, PNC's divisional manager and his direct superior, that he worried about the cost of the lease of PNC's Spokane office. He encouraged Schleck to consolidate the office into the Spokane Valley office, even though six months remained on the lease. Schleck did not know at the time that the landlord for the Spokane office was a limited liability company owned in part by *1264 Thomas. Thomas arranged to install Prime's telephone equipment and data lines in the office on a mid-July day specifically chosen because Schleck would not be in the office. Prime also asked Thomas to help Prime's new employees input their hours into Prime's payroll during this period. (Ct. Rec. 53 Ex. 8.) Additionally, Thomas let Prime know that a former National City employee named Lorrie Tracy was frustrated because she was not yet on Prime's system and had been holding onto loans to upload to Prime's database for weeks. In the weeks after the loan officers left and before he resigned, Thomas forwarded several loan inquiries to his personal e-mail address, presumably so that he could follow up on them after he began formally working for Prime.\nThomas ended his charade on August 6, 2009, when he resigned to join Prime. When Thomas officially began working at Prime, there were already 120 loans in Prime's Spokane branch pipeline. According to Schleck, it would be extremely difficult to start out with so many loans in the first month without prior customer contact. However, Plaintiffs presented no direct evidence that Thomas or any other former National City employee actually took any uncompleted loans when leaving PNC or used confidential information to solicit customers. Nor did Plaintiffs identify any customers they lost to Prime.\nUpon Plaintiffs' request, the former employees returned their Byte files to PNC. Those employees did not confirm that they did not keep any copies for themselves, however.\nAfter PNC's Spokane office closed, it abandoned the region temporarily. It has no present plans to reopen and has no pending hires in Eastern Washington and Idaho. PNC intends to focus on rebuilding in Western Washington. It still is able to serve customers in the region through its Consumer Direct division, which produces loans over the phone and on the internet. Recently, PNC's branch in Oak Harbor, Washington switched over to Prime, but PNC does not suspect Thomas recruited anyone in that office for Prime.\n\nII. Standard\n\"A preliminary injunction is not a preliminary adjudication on the merits: it is an equitable device for preserving the status quo and preventing the irreparable loss of rights before judgment.\" Textile Unlimited v. A..BMH and Co., 240 F.3d 781, 786 (9th Cir.2001). \"A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.\" Am. Trucking Ass'ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir.2009).\n\nIII. Discussion\nThe Court finds that Plaintiffs met their burden of showing they are likely to succeed on the merits of some of their claims but not others. They did not demonstrate that they are likely to suffer irreparable harm or that the balance of the equities or the public interest favors an injunction.\n\nA. Likelihood of Success on the Merits\n\n1. Breach of Contract\nThe RSA that Thomas signed prohibited him from soliciting National City customers for one year and from recruiting National City employees for three years after leaving employment with National City, as well as from taking National City's confidential information. Plaintiffs argue that Thomas breached those non-compete covenants by helping Prime recruit National City employees in his region while still employed with National City, by attempting *1265 to lure National City customers once he began working at Prime, and by taking National City's confidential information. Defendants counter that Thomas signed the non-compete covenants with National City, not with PNC, and those covenants were not assignable under Ohio law.\nPreliminarily, the Court must determine which state's law to apply to this issue. Defendants assert that, because the parties agree that Ohio law governs the RSA, Ohio law dictates whether the contract was assignable. Plaintiffs argue that Pennsylvania and Delaware law applied to the merger between PNC and National City, so those states' law governs the assignability of the companies' contracts. The Court agrees with Defendants that Ohio law applies because the parties reasonably chose Ohio law to govern the RSA. When there is a change in corporate ownership, assignment of a non-compete covenant must be legal under the law that governs each individual contract, regardless of which state's law applies to the merger. See Fitness Experience, Inc. v. TFC Fitness Equip., Inc., 355 F.Supp.2d 877, 887 (N.D.Ohio 2004) (noting that an asset transfer from one corporation to another involves assignment of a non-compete covenant whose validity depends on Ohio law); Rogers v. Runfola & Assocs., Inc., 57 Ohio St.3d 5, 565 N.E.2d 540, 543 (1991) (holding that a non-compete must be assignable in order for it to remain valid after a change in ownership from a sole proprietorship to a corporation).\nUnder Ohio law, a non-compete covenant may be assignable even if the contract does not specify as much. Blakeman's Valley Office Equip., Inc. v. Bierdeman, 152 Ohio App.3d 86, 786 N.E.2d 914, 917 (2003). Conversely, even a contract that explicitly says it is assignable may not be. See Murray v. Accounting Ctr. & Tax Servs., Inc., 178 Ohio App.3d 432, 898 N.E.2d 89 (2008) (scrutinizing whether a non-compete covenant with an explicit assignment clause was assignable). Whether it is assignable depends on three things: 1) whether the contract's language indicates that the parties intended for the non-compete covenant to be assignable; 2) whether assignment is necessary to protect the employer's goodwill; and 3) whether assignment would create additional burdens on the employee because of the change in ownership. Fitness Experience, 355 F.Supp.2d at 889; Rogers, 565 N.E.2d at 543; Blakeman's Valley, 786 N.E.2d at 918; Rock of Ages Mem'l, Inc. v. Braido, No. 00 BA 50, 2002 WL 234666 (Ohio App. Feb. 8, 2002). Additionally, Ohio courts view non-compete clauses skeptically and construe them against the party seeking enforcement. Fitness Experience, 355 F.Supp.2d at 888-89; Lake Land Employment Group of Akron, LLC v. Columber, 101 Ohio St.3d 242, 804 N.E.2d 27, 30 (2004).\nThe contract's language does not strongly indicate that the parties intended the non-compete covenant to be assignable. The only clause in the entire RSA that mentions the effects of a merger is paragraph 2, which reads \"Any additional shares of equity securities which the Grantee may become entitled to receive by virtue of . . . a merger . . . shall be subject to the restrictions set forth herein.\" (Ct. Rec. 52, Ex. 3 at 1.) This does not convince the Court that the parties intended the non-compete covenant to be assigned to the new employer in the event of a merger. It could just as plausibly mean that additional stock issued in any merger would be subject to the RSA only if National City remained the employer. The contract's ambiguity with respect to assignment is especially marked when the RSA is compared to other contracts whose non-compete covenants were held to be assignable. See Murray, 898 N.E.2d at 93 *1266 (holding that a non-compete clause was assignable to a new employer in part because the contract explicitly specified that the non-compete clause was assignable).\nNor is assignment of the non-compete clause necessary to protect Plaintiffs' goodwill. Whether a non-compete agreement is necessary to protect an employer's goodwill depends on whether the business \"perform[s] unique services and is highly dependent on a few key clients,\" or \"sell[s] malleable goods at several fixed locations to the general public.\" Fitness Experience, 355 F.Supp.2d at 890. Though Thomas was a high-level employee at National City, Plaintiffs lend mortgages, a fungible service. Additionally, since Plaintiffs suffered their injuries, PNC closed its doors in Spokane and discarded the National City brand. There is no longer any goodwill in this region for Plaintiffs to protect, so the non-compete covenant is not necessary. Finally, the Court notes that it is common in the mortgage industry for departing officers to take their books of business to their new employers when they leave. (Ct. Rec. 93 at 4; Ct. Rec. 96 at 2; Ct. Rec. 98 at 4-5). Indeed, client relationships are what make a loan officer attractive to a new employer. (Ct. Rec. 93 at 7-8.) Because officers commonly compete with their former employers using their client contacts, it is not necessary for the Court to prevent an officer from using his client relationships in this case in order to protect lenders' goodwill. This factor disfavors finding that the non-compete covenant is assignable.\nThe last factor, hardship on Thomas, also disfavors assignability. PNC's takeover of National City dramatically changed Thomas's job duties and income. The majority of Thomas's income came from mortgage commissions, but PNC prohibited him and all other branch managers from producing loans. This change eliminated most of his compensation and created a substantial burden on Thomas that counsels against assignability of the non-compete covenant. Cf. Murray, 898 N.E.2d at 91, 93 (holding that a non-compete agreement was validly assigned when the sale of the business did not affect the employee's duties, hours, or pay). When the Court considers all of these factors together, it concludes that Plaintiffs are unlikely to succeed on the merits of their breach of contract claim because the non-compete clause was not assignable.\nFinally, it bears noting that, although Plaintiffs showed that Thomas gave contact information for National City employees to Prime recruiters, they did not provide any evidence that Thomas solicited a single National City customer. For all of these reasons, Plaintiffs are unlikely to succeed on the merits of this claim.\n\n2. Trade Secret Misappropriation\nPlaintiffs demonstrated that they are likely to succeed on the merits of their trade secrets claim in part, but not entirely. To the extent that this claim is based on Plaintiffs' allegation that Defendants misappropriated their customer list, the claim is unlikely to succeed. That list was not a trade secret because it was readily ascertainable by proper means. See Boeing v. Sierracin Corp., 108 Wash.2d 38, 49-50, 738 P.2d 665 (1987). Customer names, addresses, loan dates, and loan values are available from a title search for only $12.00. (Ct. Rec. 99 at 8.) State law encourages mortgage lenders to file this information in order to protect their security interests. RCW 65.08.070. Thus, Defendants had access to Plaintiffs' entire customer list for a modest fee, and it was public information. Plaintiffs claim that it would have been very expensive and time-consuming to compile all the customer information that Defendants took from them. That might be, but publicly available *1267 information does not become a trade secret even if it is expensive to acquire. Sierracin Corp., 108 Wash.2d at 49-50, 738 P.2d 665.\nFurther, Defendants persuasively argue that any non-public information that may have been included with the customer lists that the departing employees allegedly took with them, such as social security numbers and birth dates, is useful in completing a loan application but not in soliciting customers, because it is used only after the customer has decided to borrow from the mortgage lender. (Ct. Rec. 93 at 6; Ct. Rec. 96 at 2.) Plaintiffs point to no evidence that any former National City employee ever disclosed or used such information for Prime's benefit. They merely surmise that former employees probably did so. In fact, the only evidence presented is to the contrary: Prime Regional Senior Vice President Kale Salmans specifically told all National City employees who were coming to work for Prime not to take or use any information that is not publicly available. (Ct. Rec. 97 at 6; id. Ex. A.) Therefore, Plaintiffs are unlikely to succeed on this claim insofar as it relies on Defendants misappropriating customer information.\nOn the other hand, Prime admits that it received some confidential information about Plaintiffs' business from National City employees. Prime asked all National City employees to send pipeline reports, or reports that showed their recent loan activity, to Prime. Those reports contained confidential information that qualified as a trade secret, such as the employee's compensation and whether the employee had loans scheduled to be completed. (Ct. Rec. 115 Ex. 8 at 84-86.) Also, Thomas sent a pro forma containing confidential information about the Spokane branch's operations that was used to evaluate the branch before Prime acquired it. Id. at 91. Prime maintains that information was used not to solicit customers but to evaluate the business. Id. at 86, 91. Nevertheless, Prime used improper means to acquire the information: it induced National City's outgoing employees to breach their agreements to maintain confidentiality. Any misappropriation of trade secrets, even if it is not used to harm their rightful owner, is actionable. RCW 19.108.010; 19.108.020; 19.108.030. Whether Defendants are misusing those trade secrets to poach former National City customers affects whether Plaintiffs continue to suffer irreparable harm, but a violation occurred when Defendants received the information regardless of the continuing harm. Ongoing harm from that misappropriation is a separate question addressed below.\n\n3. Breach of Duty of Confidence and Loyalty\nPlaintiffs argue that Thomas breached his duty of confidence by disclosing proprietary customer information to Prime and breached his duty of loyalty by performing several tasks on Prime's behalf while still employed by National City. Defendants are correct that the cause of action for breach of the duty of confidence is precluded by the UTSA because it is factually indistinguishable from trade secret misappropriation. See RCW 19.108.900; Thola v. Henschell, 140 Wash.App. 70, 78, 164 P.3d 524 (2007). On the other hand, it is abundantly clear that Thomas breached his duty of loyalty by acting as a Prime employee while he still worked for PNC. Even as PNC continued to pay him, Thomas tried to arrange for Prime to move into PNC's office space and had Prime's telephone and data lines installed in PNC's office. He also sent inquiries from prospective customers to his personal e-mail address so as to be able to follow up with them once at Prime. He told Prime that an outgoing PNC employee was frustrated with her inability to upload loans to Prime. *1268 Prime even asked him to resolve some personnel problems, though it is unclear that he did so. Working for a competitor while still employed by PNC clearly violated Thomas's duty of loyalty. See Organon, Inc. v. Hepler, 23 Wash.App. 432, 436-37, 595 P.2d 1314 (1979).\n\n4. Tortious Interference with Contract\nPlaintiffs argue that Prime tortiously interfered with National City's customer relationships, the employment agreements with Thomas and all other employees who left to join Prime, and the duties of loyalty owed by those former employees. The elements of tortious interference are 1) a valid contractual relationship; 2) defendants' knowledge about the relationship; 3) defendants' intentionally interference, causing a breach of the relationship; 4) interference was for an improper purpose or used improper means; and 5) damages. Leingang v. Pierce County Med. Bureau, Inc., 131 Wash.2d 133, 157, 930 P.2d 288 (1997) (citations omitted).\nThe tortious interference claim is unlikely to succeed. Although it is not preempted by the UTSA because it relies on different facts, the evidence does not bear out Plaintiffs' claims. Plaintiffs surmise that Prime and Thomas encouraged former employees to leave PNC for Prime and solicited customers with whom they had valid contracts. The only direct evidence supporting this assertion is that Thomas gave Kale Salmans other employees' contact and salary information.[4] But those employees were all free to leave PNC. Merely because Thomas gave Prime publicly available information does not mean he tortiously interfered with the employment contracts. Moreover, contact between Prime and PNC employees was initiated by Greg Templeton, not Thomas or Prime. Indeed, Thomas and other former PNC employees deny that Thomas recruited anybody. (Ct. Rec. 93 at 19; Ct. Rec. 98 at 3-4; Ct. Rec. 99 at 7.) Prime, aided by Thomas's information, recruited some employees (Ct. Rec. 53 Ex. 3), but those employees were upset about the compensation changes and were ready to leave. Prime's recruitment only encouraged them to come to Prime instead of some other lender, not to breach their employment contracts. Nor did Plaintiffs show that Prime encouraged PNC employees to violate their duty of loyalty to PNC, except by saying that Prime asked Thomas to do some work for Prime while he was still employed at National City.\nTo the extent that the tortious interference claim depends on Prime's solicitation of former National City customers, there is no evidence that Prime did so. As indicated above, Plaintiffs did not identify a single former National City customer who now has a loan with Prime.\nPlaintiffs' claim that Prime tortiously interfered with Thomas's non-compete agreements is similarly flawed. The non-compete agreements were invalid because they were not assignable to PNC for the reasons detailed above. Prime could not have tortiously interfered with a contract that no longer existed. Accordingly, Plaintiffs are unlikely to succeed on the merits of their tortious interference claim.\n\n5. Unfair Competition\nPlaintiffs presumably base their unfair competition claim on Defendants' misappropriation *1269 of trade secrets. Like the claim for breach of the duty of confidentiality it is precluded because it is factually indistinguishable from the trade secrets claim.\n\n6. Civil Conspiracy\nPlaintiffs' claim for civil conspiracy is unlikely to succeed. To establish civil conspiracy, a plaintiff must prove by clear and convincing evidence that 1) two or more persons combined to accomplish an unlawful purpose or combined to accomplish a lawful purpose by unlawful means and 2) the conspirators entered into an agreement to accomplish the object of the conspiracy. Wilson v. State, 84 Wash. App. 332, 350-51, 929 P.2d 448 (1996) (citations omitted). Mere suspicion or commonality of interests is insufficient to prove a conspiracy. Id. at 351, 929 P.2d 448. Plaintiffs point to no evidence that there was an agreement between Defendants to do anything unlawful. All of the departing employees had at-will employment agreements, and Plaintiffs' CEO indicated they were free to leave if they did not like the new compensation scheme. (Ct. Rec. 93 at 14.) Plaintiffs' Rule 30(b)(6) designee also admitted as much. (Ct. Rec. 95 Ex. A at 27.) All the available evidence indicates that, although Prime recruited the employees, they made their decision to leave independently of one another. (Ct. Rec. 98 at 3-4; Ct. Rec. 99 at 7.) Plaintiffs did not show that Defendants or the former National City employees jointly agreed to disclose or misuse confidential information. The current record does not show a likelihood of success on the conspiracy claim.\n\nB. Likelihood of Irreparable Harm\nThe Court holds that Plaintiffs are unlikely to suffer any irreparable harm if the injunction does not issue. All harm occurred a year ago, in July and August 2009. Plaintiffs admit they have no plans to open an office in Spokane. PNC's Spokane branch is gone and is not returning soon. Although Plaintiffs suffered harm when they lost their branch, the damages from that loss already occurred and can be calculated. Enjoining Thomas from recruiting employees in Eastern Washington and Idaho serves no purpose because no PNC employees remain for recruitment. Though Plaintiffs showed that Defendants misappropriated trade secrets by taking the mortgage pipelines and pro forma for the Spokane branch, there is no ongoing harm from that misappropriation. Those documents were used to evaluate potential employees, all of whom left PNC, and to assess the Spokane branch, which PNC abandoned for the time being.\nPlaintiffs complain that all the employees in their Oak Harbor, Washington branch recently left for PNC. But Plaintiffs did not present any evidence that Thomas or any other former National City employee bore responsibility for that defection. Nor did Plaintiffs suggest those employees left for any reason other than their perceived better opportunities with Prime. Plaintiffs also failed to present any evidence that Thomas is actively soliciting other PNC branches' employees to switch to Prime.\nNor do Plaintiffs suffer ongoing harm because Defendants serve former National City customers. Plaintiffs no longer have a presence in Spokane, so they suffer no harm if their former Spokane customers do business with Prime. Plaintiffs are unable to serve those customers except through their online loan origination service. Even if the online presence is substantial, Plaintiffs did not show that Prime or any former National City employee is actually serving any of their former customers, much less that Defendants misused confidential information to solicit those customers.\n\n\n*1270 C. Balance of the Equities\nWhen a court balances the equities, it compares the harm to the moving party if the injunction is not issued to the harm the non-moving party would suffer from a wrongfully-issued injunction. See Stormans, Inc. v. Selecky, 571 F.3d 960, 987-88 (9th Cir.2009) (citing L.A. Mem'l Coliseum Comm'n v. Nat'l Football League, 634 F.2d 1197, 1203 (9th Cir. 1980)). The equities are at best neutral, if they do not favor Defendants. Plaintiffs did not show that they would continue to suffer any additional harm in the absence of an injunction. Until very recently, they continued to lose branches to Prime, but Plaintiffs did not show that those losses were a result of Defendants' unlawful conduct. Nor did Plaintiffs show that Defendants continue to take away former customers through wrongful use of National City trade secrets, or indeed that Prime now serves any former National City customer. All damage is done. In contrast, a wrongfully-issued injunction would greatly burden Defendants, particularly Thomas. Thomas would be unable to assist in preparing any mortgage loan for a former National City customer for one full year. Effectively, this may prevent him from engaging in his line of work in the Spokane for one year.\n\nD. Public Interest\nBecause the public has an interest in unrestrained access to a competitive mortgage lending market, this factor disfavors an injunction.\n\nIV. Conclusion\nPlaintiffs did not meet their burden of showing entitlement to the extraordinary relief they seek. Therefore, IT IS HEREBY ORDERED:\n1) Plaintiffs' Motion for Preliminary Injunction (Ct. Rec. 50) is DENIED.\n2) Plaintiffs' Motion in Limine (Ct. Rec. 120) Is GRANTED IN PART.\nIT IS SO ORDERED. The District Court Executive is directed to enter this Order and to provide copies to counsel.\nORDER DENYING PLAINTIFFS' FED. R. CIV. P. 59(E) MOTION TO ALTER OR AMEND THE JUDGMENT\nBefore the Court, without oral argument, is Plaintiffs National City Bank, N.A.[1] and PNC Financial Services Group, Inc.'s Fed.R.Civ.P. 59(e) Motion to Alter or Amend the Judgment (ECF No. 160). Plaintiffs initially sued Defendants for violations of several state and federal laws in connection with a mass resignation that effectively shut down National City's operations in the Spokane region and handed them over to Defendant Prime Lending.\nPlaintiffs moved for a preliminary injunction preventing Defendants from doing business with former National City customers, recruiting National City employees, and disclosing National City's trade secrets. The Court denied Plaintiffs' motion, finding that Plaintiffs had not demonstrated a likelihood of success on the merits for their breach-of-contract claim. (ECF No. 142.) Relying on Ohio law, the Court concluded that Thomas' non-compete was not assignable because, 1) the contract did not \"strongly indicate\" that the parties intended Thomas' non-compete agreement to be assigned to the new employer in the event of a merger; 2) assignment was not necessary to protect Plaintiffs' goodwill; and 3) the assignment would create additional burdens on Thomas.\n*1271 Plaintiffs now ask the Court to reconsider and amend its July 20, 2010 Order denying PNC's motion for preliminary injunction, arguing that the Court improperly characterized PNC's takeover as an asset assignment, rather than a merger. Plaintiffs argue that the Ohio statutory merger law should apply, under which they believe all assets, including the non-compete agreements, would pass to PNC, the surviving corporation, by operation of law.\nOnly three grounds justify altering or amending the judgment under Federal Rule of Civil Procedure 59(e): \"(1) the district court is presented with newly discovered evidence, (2) the district court committed clear error or made an initial decision that was manifestly unjust, or (3) there is an intervening change in the controlling law.\". United Nat. Ins. Co. v. Spectrum Worldwide, Inc., 555 F.3d 772, 780 (9th Cir.2009). After considering the parties' additional briefing (ECF Nos. 192, 193, & 194), the Court is satisfied that the July 20, 2010 Order denying PNC's motion for preliminary injunction is a \"judgment\" for Federal Rule of Civil Procedure 59(e) purposes. See Fed.R.Civ.P. 54(a) (defining judgment as \"any order from which an appeal lies\" (emphasis added)); 28 U.S.C. § 1292(a)(1) (\"[c]ourts of appeals shall have jurisdiction of appeals from: Interlocutory orders of the district courts of the United States . . . refusing . . . injunctions[.]\"); Credit Suisse First Boston Corp. v. Grunwald, 400 F.3d 1119, 1123 n. 6 (9th Cir.2005) (recognizing that \"a preliminary injunction order is a `judgment' and is therefore subject to Rule 59(e)\"); Balla v. Idaho State Bd. of Corr., 869 F.2d 461, 466-67 (9th Cir.1989) (\"Thus, the word `judgment' encompasses final judgments and appealable interlocutory orders.\").\nThe Court finds that it correctly analyzed Ohio law and both state and federal precedents on the facts of this case and thus denies Plaintiffs' motion to alter or amend the judgment. Accordingly, there is no demonstrable need to certify the issue to the Ohio Supreme Court. Therefore, IT IS HEREBY ORDERED: Plaintiffs' Fed.R.Civ.P. 59(e) Motion to Alter or Amend the Judgment (ECF No. 160) is DENIED.\nIT IS SO ORDERED. The District Court Executive is directed to enter this Order and to provide copies to counsel.\nNOTES\n[1] The following background is based on the testimony of John Schleck and the above-noted declarations.\n[2] Prime asked Thomas to perform tasks while still employed at PNC multiple times, and Thomas demurred because of improper appearance only once, when Prime asked him to give his subordinates Prime's employment agreement forms. (Ct. Rec. 130 Ex. 1 at 74.)\n[3] That information was publicly available on National City's website. (Ct. Rec. 93 at 19.)\n[4] Prime's Rule 30(b)(6) designee, Keith Klein, said he believed Thomas probably actively recruited his subordinates to leave for Prime with him. (Ct. Rec. 130 Ex. 2 at 212.) Although this answer binds Prime, it does not bind Thomas, who denied that he did so. Furthermore, Plaintiffs provided no evidence that Prime asked Thomas to recruit PNC employees.\n[1] Plaintiff National City Bank was removed from this action pursuant to the First Amended Complaint (ECF No. 181), filed October 6, 2010.\n\n",
"ocr": false,
"opinion_id": 2477998
}
] |
E.D. Washington
|
District Court, E.D. Washington
|
FD
|
Washington, WA
|
2,711,885 | null | 2013-11-25 | false |
people-of-michigan-v-richard-lee-clark
| null |
People of Michigan v. Richard Lee Clark
| 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/20131125_S147732_23_147732_2013-11-25_or.pdf",
"author_id": null,
"opinion_text": "Order Michigan Supreme Court\n Lansing, Michigan\n\n November 25, 2013 Robert P. Young, Jr.,\n Chief Justice\n\n 147732 Michael F. Cavanagh\n Stephen J. Markman\n Mary Beth Kelly\n Brian K. Zahra\n Bridget M. McCormack\n PEOPLE OF THE STATE OF MICHIGAN, David F. Viviano,\n Plaintiff-Appellee, Justices\n\n\n v SC: 147732\n COA: 309930\n St. Joseph CC: 08-014903-FC\n RICHARD LEE CLARK,\n Defendant-Appellant.\n\n _________________________________________/\n\n On order of the Court, the application for leave to appeal the August 23, 2013\n order of the Court of Appeals is considered, and it is DENIED, because the defendant has\n failed to meet the burden of establishing entitlement to relief under MCR 6.508(D).\n\n\n\n\n I, Larry S. Royster, 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 November 25, 2013\n p1118\n Clerk\n\f",
"ocr": false,
"opinion_id": 2711885
}
] |
Michigan Supreme Court
|
Michigan Supreme Court
|
S
|
Michigan, MI
|
2,617,279 |
Givens, Keeton, Porter, Taylor, Thomas
| 1953-01-07 | false |
anderson-v-foster
|
Anderson
|
Anderson v. Foster
|
ANDERSON Et Al. v. FOSTER
|
William H. Foster and Dean Kloepfer, Burley, W. L. Dunn, Twin Falls, for appellant., S. T. Lowe, Burley, for respondents.
| null | null | null | null | null | null | null | null | null | null | 8 |
Published
| null |
<citation id="b356-9">
252 P.2d 199
</citation><br><parties id="b356-10">
ANDERSON et al. v. FOSTER.
</parties><br><docketnumber id="b356-11">
No. 7799.
</docketnumber><br><court id="b356-12">
Supreme Court of Idaho.
</court><br><decisiondate id="b356-13">
Jan. 7, 1953.
</decisiondate><br><attorneys id="b358-17">
<span citation-index="1" class="star-pagination" label="342">
*342
</span>
William H. Foster and Dean Kloepfer, Burley, W. L. Dunn, Twin Falls, for appellant.
</attorneys><br><attorneys id="b358-22">
S. T. Lowe, Burley, for respondents.
</attorneys>
|
[
"252 P.2d 199",
"73 Idaho 340"
] |
[
{
"author_str": "Thomas",
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": null,
"author_id": 4186,
"opinion_text": "\n252 P.2d 199 (1953)\nANDERSON et al.\nv.\nFOSTER.\nNo. 7799.\nSupreme Court of Idaho.\nJanuary 7, 1953.\n*200 William H. Foster and Dean Kloepfer, Burley, W. L. Dunn, Twin Falls, for appellant.\nS. T. Lowe, Burley, for respondents.\nTHOMAS, Justice.\nRespondents, Afton Anderson and Iloise Anderson, husband and wife, brought an action to recover damages from the defendant, a police officer of Burley, Idaho, who on the day in question was acting Chief of Police.\nThe complaint sets up two separate causes of action. In the first cause of action damages were sought for the unlawful arrest and assault and battery committed upon the respondent, Mrs. Anderson. In the second cause of action damages were also sought for false imprisonment of said Mrs. Anderson.\nThe matter was tried before a jury which rendered a verdict on the first cause of action for $500 actual damages and $1000 punitive damages, and on the second cause of action for $2000 actual damages. From the judgment entered on the verdict, this appeal was taken.\nAbout 6 o'clock P.M. on May 6, 1950, a party went to the home of the police judge in Burley, Idaho, and asked that a criminal complaint be filed against Mrs. Anderson for assault and battery. Such complaint was thereupon issued out of the Police Court, signed by the complaining witness, and the police judge issued a warrant for her arrest and endorsed thereon that it be served by day or night. The warrant was placed in the hands of appellant and another police officer who were attired in police uniforms and wearing police badges. They drove to and parked the police car in front of the 3-Forks Inn, a drive-in cafe where confections, soft drinks and beer were sold. Here they found Mrs. Anderson and arrested her between 7 and 7:30 o'clock P.M.\nThe testimony as to what took place in connection with and the manner of the arrest is in many material respects hopelessly conflicting. At that time she was not engaged in the commission of or attempting to commit any offense. The testimony of the witnesses for respondents is to the effect that she was not informed as to the intention of appellant to arrest her, the cause of the arrest, his authority to make the arrest, nor did he show, or attempt to show, *201 or read, or attempt to read the warrant to her; that he commanded and directed her to get in the police car and go with him, refusing to tell her where he intended to take her although she made inquiry and challenged his right and authority to take her; she further testified that when she refused to go with him he committed assault and battery upon her person, detailing the physical injuries she sustained.\nThe witnesses for appellant testified that Mrs. Anderson was intoxicated when located at the drive-in cafe; this she denied; that she was mean and belligerent, but that she was not physically abused although forced into the car; that she was informed of the charge against her and that all efforts to either show her the warrant or read it to her were unavailing because she would not permit them to do so.\nAfter she was forced into the car, it was driven to the police station. She testified that at the police station she complained to the desk sergeant about the alleged physical treatment and asked that she be permitted to consult an attorney. This testimony is denied by witnesses for appellant.\nThe police judge was not at the police station. There was testimony that an attempt to reach him by telephone failed. Mrs. Anderson testified that no call was made while she was in the police station. It was now about 7:30 o'clock P.M. Appellant thereupon placed her in the Cassia County jail and then drove home. He made no further effort to locate the police judge or to take her before him. That same evening, about 9 o'clock P.M., Mr. Anderson, upon learning of her confinement went to the home of the police judge who then accompanied him to the county jail. Mrs. Anderson was then taken to his office. Thereafter, upon receiving a telephone call, appellant went to the office of the police judge. Mr. Anderson asked that he be permitted to post a bond and take his wife home. The police judge declined the request, asserting that she was intoxicated and that he would arraign her the following morning. Mr. Anderson challenged the opinion of the judge as to her intoxication without avail. Thereupon the judge orally ordered, in the presence of appellant, the acting Chief of Police, and another city policeman, that she be returned to the jail cell. Appellant then requested the other officer to, and he did, place her back in jail.\nMrs. Anderson was arraigned the following morning at about 9:30 o'clock. She pleaded guilty to the charge of assault and battery, paid the fine imposed, and was released from custody.\nAt the conclusion of the introduction of the evidence the court granted respondents' motion for a directed verdict on the second cause of action for false imprisonment, leaving to the jury pursuant to an instruction the determination of the amount of actual damages. Upon the second cause of action, respondents sought $2000 damages. The jury by their verdict in the second cause of action awarded damages for $2000.\nAppellant makes two assignments of error with reference to the cause of action for false arrest and assault and battery, which will be considered first. It is urged that the court erred in striking from the evidence the criminal complaint issued out of the police court of Burley. After the complaint was received in evidence, it was read to the jury; later upon motion it was stricken from the evidence; the first cause of action was not based upon the absence of lawful authority to make the arrest but upon the proposition that defendant did not act under the warrant of arrest in the manner required by law; moreover, the warrant of arrest was received in evidence and the court instructed the jury that it was regular on its face and constituted authority for the officer to act thereunder; hence, it was for the jury to determine under the evidence whether the arresting officer acted under the authority of such warrant in the manner required of him under the statutes. Error, if any, in striking the complaint was not prejudicial.\nWhile the manner of making the arrest is in all material respects conflicting, the jury, whose province it was to resolve the conflicts, did so under instructions which were not challenged. The arrest was made for the commission of a public offense *202 (a misdemeanor) outside the presence of defendant officer; there was no flight, escape, or pursuit. The jury believed the testimony of respondent that no warrant was shown to her, that she was not informed of the intention to arrest her or the cause thereof, although she made request and refused to voluntarily submit; also that the officer assaulted her and used force in excess of that necessary to effect her arrest and detention.\nIf an officer making an arrest does not inform the person to be arrested of his intention to make the arrest, the cause of the arrest and the authority to make it, when the person to be arrested requests such, except when the person to be arrested is actually engaged in the commission of, or an attempt to commit, an offense, or is pursued immediately after its commission, or after an escape, such arrest is unlawful. Helgeson v. Powell, 54 Idaho 667, 34 P.2d 957; Secs. 19-603, subd. 1, 19-608 and 19-609, I.C.; 22 Am.Jur., p. 403, sec. 71; 22 Am.Jur., p. 365, sec. 19; 100 A.L.R. 189; 4 Am.Jur., p. 45, sec. 66, note 18.\nThe officer making the arrest must not subject the person arrested to any more force or restraint than is necessary for such arrest and detention; State v. Wilson, 41 Idaho 616, 243 P. 359; Secs. 19-602 and 19-610, I.C.; and he is guilty of assault and battery if he uses unnecessary and excessive force; 4 Am.Jur., secs. 73-74, pp. 52-53.\nIt is also urged that it was error for the court to hold that the officer serving the warrant was required to look behind the endorsement thereon that it might be executed at any time during the day or night, before serving it. The court did not so hold. To the contrary, the court pointed out and instructed the jury that the warrant was regular on its face and constituted authority for the police officer to act thereunder.\nIt is urged that in view of the fact that Mrs. Anderson pleaded guilty to the complaint issued out of the police court and paid the fine imposed without objection as to the manner of arrest or the delay in taking her before the magistrate, such action purged the appellant of any illegal arrest, assault and battery or false imprisonment and that such constituted a waiver or bar to any right to recover damages allegedly arising therefrom.\nPleading guilty to a misdemeanor, following an arrest, which the plaintiff in a subsequent action for false arrest, assault and battery and false imprisonment alleges to have been illegal and accomplished by the use of unnecessary force, does not waive such person's right to recover damages for such assault and battery and for the unlawful arrest and the false imprisonment by which such party was unlawfully restrained of his liberty. McCullough v. Greenfield, 133 Mich. 463, 95 N.W. 532, 62 L.R.A. 906, 1 Ann.Cas. 924; Oleson v. Pincock, 68 Utah 507, 251 P. 23; Spain v. Oregon-Washington R. & Nav. Co., 78 Or. 355, 153 P. 470. See also 25 C.J. 525, sec. 108; 35 C.J.S., False Imprisonment, § 46(b), p. 575; 22 Am.Jur., sec. 94, p. 417.\nThe remaining assignments of error are primarily directed to an instruction given by the court directing a verdict for the respondents on the second cause of action for false imprisonment, leaving only to the jury, under the instructions, the determination of the amount of damages.[1]\n*203 The court therein instructed the jury that Mrs. Anderson, under the undisputed evidence, was unlawfully and illegally confined in the county jail from the time she was placed therein until the following day when she appeared before the magistrate, and that the defendant was so connected with such confinement as to render him personally responsible and liable for any damages sustained as a consequence thereof.\nIt was the duty of the arresting officer to take Mrs. Anderson before the magistrate without unnecessary delay and upon her request following the arrest allow an attorney at law, entitled to practice in the courts of record of this state, to visit her. § 19-515, I.C.\nWhere the facts are without dispute and clearly establish the illegality of the detention, the verdict should be directed allowing the jury to assess the damages for the false imprisonment, leaving for the court and not the jury the question of reasonable time for taking the person arrested before the magistrate; however, it is for the jury if the evidence is in conflict. Madsen v. Hutchison, 49 Idaho 358, 290 P. 208.\nWhat is a reasonable delay under all the circumstances, if there be any dispute in the evidence, is generally for the jury. Madsen v. Hutchison, supra; 79 A. L.R. 17.\nAmong circumstances which may justify delay is the intoxication of the person arrested. There is a conflict in the evidence as to whether Mrs. Anderson was intoxicated. The question of the reasonableness of the delay in bringing her before the magistrate depends upon all the facts and circumstances, including the question of intoxication which, being in dispute, was for the jury. Arneson v. Thorstad, 72 Iowa 145, 33 N.W. 607; Pepper v. Mayes, 81 Ky. 673; Hutchinson v. Sangster, 4 G.Greene, Iowa, 340; Scircle v. Neeves, 47 Ind. 289; Wiltse v. Holt, 95 Ind. 469; Schoette v. Drake, 139 Wis. 18, 120 N.W. 393; see also 35 C.J.S., False Imprisonment, § 31, note 29, p. 547; 79 A.L.R. 20, 21. This principle is also recognized in Clements v. Canon, 170 Okl. 340, 40 P.2d 640; Fouraker v. Kidd Springs etc., Tex.Civ.App., 65 S.W.2d 796.\nIt was prejudicial error to take from the jury the question of the reasonableness of the delay in taking Mrs. Anderson before the magistrate under all the facts and circumstances, where, as here, there was a conflict in the evidence with reference to the matter of her intoxication.\nBy the above instruction the jury was informed that Mrs. Anderson was unlawfully confined in the county jail for approximately fourteen and one-half hours, that is, from the time she was first placed therein by defendant until she was released the next morning by the magistrate, and that defendant was so connected with such confinement as to render him personally liable and responsible for the whole of such period of restraint and confinement. This makes the arresting officer liable not only for so much of the confinement and restraint and false imprisonment as is unnecessarily occasioned by his failure to use due diligence in bringing her before the magistrate, under all the facts and circumstances, but also liable for that portion of the confinement and restraint that could not have been prevented by the officer had he exercised due diligence in bringing her before the magistrate, but which was occasioned by the refusal of the magistrate to accept bail and release her that evening.\nIf the arresting officer unnecessarily prolongs the custody of the person arrested beyond the period within which he could by the exercise of due diligence bring him before the magistrate, he is liable for only so much of the confinement as is unnecessarily occasioned by his failure to use due diligence and is not liable for so much of the confinement as could not have been prevented had he exercised due diligence in bringing her before the magistrate. Restatement *204 of the Law of Torts, Vol. 1, sec. 136, p. 318; this principle was recognized by this Court recently in the case of Smith v. Lott, Idaho, 249 P.2d 803, where the court held that after the person arrested is taken before the magistrate, the responsibility as to further and future proceedings in connection therewith is that of the magistrate and not the arresting officer. See also Keefe v. Hart, 213 Mass. 476, 100 N.E. 558, Ann.Cas.1914A, 716; 79 A.L.R. 17.\nWe find no reversible error with reference to the first cause of action and the judgment as to such cause of action is affirmed.\nWe conclude that it was prejudicial error to direct a verdict with reference to the second cause of action, and it is ordered that the same be and hereby is reversed for the reasons heretofore set out and is remanded with directions to proceed in accordance with the views expressed herein.\nCosts to appellant.\nPORTER, C. J., and GIVENS, TAYLOR and KEETON, JJ., concur.\nNOTES\n[1] \"Instruction No. 26.\n\n\"The Court instructs the jury that by their second cause of action the plaintiffs allege that the plaintiff, Illoise Anderson, was unlawfully and illegally confined in the county jail of Cassia County for the period of approximately fourteen and one-half hours. From the undisputed evidence in this case the Court has concluded, as a matter of law, and now so instructs you that at no time was said plaintiff legally or lawfully confined in the county jail but on the contrary, that her confinement in such jail was at all time illegal and wrongful; also that the defendant was so connected with the confinement as to render him personally responsible and liable for the damages sustained in consequence.\n\"Therefore, on plaintiffs' second cause of action you will determine under the rule stated in other instructions the amount of the actual damages sustained by the plaintiffs as a result of such confinement and return verdict on their second cause of action for such sum. You would not be warranted in returning verdict for punitive damages in addition to actual damages on the second cause of action. In returning verdict for the plaintiffs on their second cause of action you will be acting under the direction of the Court. The responsibility for that direction is not upon you but upon the Court.\"\n\n",
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"opinion_id": 2617279
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] |
Idaho Supreme Court
|
Idaho Supreme Court
|
S
|
Idaho, ID
|
1,146,616 |
Day
| 1971-04-05 | false |
peaker-v-southeastern-colorado-water-con-dist
|
Peaker
|
Peaker v. SOUTHEASTERN COLORADO WATER CON. DIST.
| null | null | null | null | null | null | null | null | null | null | null | null | 9 |
Published
| null | null |
[
"483 P.2d 232"
] |
[
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": null,
"author_id": 3900,
"opinion_text": "\n483 P.2d 232 (1971)\nDonald PEAKER, John Werme, Jr., and C. D. Buchner, Plaintiffs in Error,\nv.\nThe SOUTHEASTERN COLORADO WATER CONSERVANCY DISTRICT; J. Selby Young, William Bauserman, J. Sid Nichols, Harold Christy, George Everett, Jr., Tom McCurdy, James Wagner, Roy Cooper, Herbert Schroeder, James Shoun, Frank Dilley, David Ciruli, Frank Milenski, and Kenneth Shaw, constituting the Board of Directors of the Southeastern Colorado Water Conservancy District, Defendants in Error.\nNo. 22936.\nSupreme Court of Colorado, En Banc.\nApril 5, 1971.\n*233 Norman E. Berman, Denver, Rexford L. Mitchell, Rocky Ford, for plaintiffs in error.\nFairfield & Woods, Charles J. Beise, Charles E. Matheson, Denver, for defendants in error.\nDAY, Justice.\nPlaintiffs in error, hereinafter referred to as Intervenors, are here appealing an order of the Honorable S. Philip Cabibi, Judge of the district court of Pueblo County, limiting the examination of records of the Southeastern Colorado Water Conservancy District, hereinafter referred to as District.\nOn July 14, 1966, the board of directors in what was designated as \"In the Matter of Southeastern Colorado Water Conservancy District\" filed a petition requesting that the district court:\n\"[D]etermine the procedures to be followed in determining what persons are properly qualified to examine the books and records of the [District] and the terms and conditions under which such examinations should be made [and] the limits and extents thereof.\"\nThe Intervenors were taxpayers owning property within the boundaries of the District and claimed concern about how the tax monies of the District were spent.\nThe Intervenors had made demand upon the Districtamong other thingsto examine individual restaurant tickets and hotel statements for which vouchers had been drawn to pay the expenditures and also to examine the diary referred to by the District accountant which seemed to support some of the expenditures of the District. The District denied the request for such detailed data and resorted to the district court for guidelines as requested in the petition. Motion of the taxpayers appearing herein to intervene in the district court was granted. Another motion prior to hearing that Judge Cabibi disqualify himself was denied. Error is assigned to the issue of this disqualification of the judge as well as to the findings and rulings of the court.\nIn view of our disposition of this writ of error on the sole question of the jurisdiction of the trial court, the error assigned by the Intervenors need not be considered. We hold that the trial court did not, in fact, have jurisdiction as an overseer or supervisor of the District although both the court and the District directors appear to have assumed that it did.\nThe jurisdiction of the court below to hear the petition in question has not been challenged by the Intervenors. However, we have consistently held that \"[t]his court may notice questions, not raised by the assignments of error, that appear on the face of the record, when such consideration is necessary to do justice.\" Hoggard v. Gen'l Rose Hosp., 160 Colo. 459, 420 P. 2d 144 (1966); and \"[t]he general rule is that the question of jurisdiction may be raised at any stage of an action, and that, too without an assignment of error on the subject.\" Baker v. Denver Tramway Co., 72 Colo. 233, 210 P. 845 (1922). See also Neilson v. Bowles, 124 Colo. 274, 236 P.2d 286 (1951); Universal Indemnity Ins. Co. v. Tenery, 96 Colo. 10, 39 P.2d 776 (1934); C.R.C.P. 12(h).\nAs noted above, the petition was lodged with the particular district judge under an allegation: \"That [the] court has original and exclusive jurisdiction over said Southeastern Colorado Water Conservancy District, the directors and officers thereof, and all property, contracts, books and records of said district * * *.\" In its order setting a time for hearing on the above petition, the court found: \"That this proceeding is a continuing proceeding for all purposes and that this court has exclusive *234 jurisdiction by law over the business and affairs of said district, the directors and officers thereof. * * *\" (Emphasis added.)\nWe are unable to find either statutory or decisional authority for the proposition that the court below had continuing supervisory authority over the business and affairs of the District or the authority to give legal advice as to what records might be open to the public. Adversary proceedings regularly brought under applicable rules of procedure or actions for declaratory judgment are readily available to interested or affected members of the public concerning the corporate actions of the District or the individual actions of the District directors concerning the discharge of their official duties imposed by law.\nThe appropriate statutes governing the organization and powers exercised by water conservancy districts are found at C.R.S.1963, 150-5-1, et seq. In its appeal brief, the District cites section 150-5-6(2) as granting continuing jurisdiction over the affairs of the District. We note, however, that the language cited is found in that section pertaining to the Notice of Hearing on Petition, and must accordingly be limited to granting jurisdiction to the court over the organization and incorporation of such districts. The general powers over the affairs of the District after incorporation are granted to the members of the board of directors by section 150-5-13, with the jurisdiction of the district court limited as follows:\n\"The district court sitting in and for any county in this state * * * is hereby vested with jurisdiction, power and authority when the conditions stated in section 150-5-4 are found to exist, to establish water conservancy districts * * * provided that the terms of this article shall not be construed to confer upon such district court jurisdiction to hear, adjudicate and settle questions concerning the priority of appropriation of water between districts organized under this article and ditch companies and other owners of ditches drawing water for irrigation purposes from the same stream or its tributaries, and jurisdiction to hear and determine such questions of law and questions of right growing out of or in any way involved or connected therewith, are expressly excluded herefrom and shall be determined in the proper county as otherwise provided by the laws of the state of Colorado.\" Id. § 150-5-3.\nIf the applicable statutory requirements are complied with the district court is directed to formalize the organization:\n\"Upon the said hearing, if it shall appear that a petition for the organization of a water conservancy district has been signed and presented in conformity with this article, and that the allegations of the petition are true, and that no protesting petition has been filed, or if filed has been dismissed, by order duly entered of record, the court shall adjudicate all questions of jurisdiction, declare the district organized and give it a corporate name, by which in all proceedings it shall thereafter be known, and thereupon the district shall be a political subdivision of the state of Colorado and a body corporate with all the powers of a public or municipal corporation.\" Id. § 150-5-7(7) (Emphasis added.)\nFollowing such organization, all powers are vested in the board of directors of the district, which is directed to act on behalf of such district. Id. § 150-5-13. See generally Alameda Water and Sanitation District v. Skelton, 165 Colo. 201, 437 P.2d 796. Any authority exercised by the district court following the organization and incorporation is limited to clear statutory provisions such as the filling of vacancies in the board of directors (Id. § 150-5-9) and is non-general in nature.\nIn the instant case, the District is the successor in interest of the Water Development Association of Southeastern Colorado, which was organized in 1958, pursuant to the above statutory provisions. The evidence presented at the hearing below *235 indicates that Judge Cabibi had for some time been closely associated with the activities of the District. He had frequently attended meetings of the District's board of directors, and attended national conventions of the Colorado River Water Users Association, with the cost of such attendance borne at least partially by the District. The president of the board of directors testified that the purpose of such attendance was to keep Judge Cabibi informed as to the problems that existed which might adversely affect the affairs of the District.\nBased upon our determination that C.R.S.1963, 150-5-1, et seq. and particularly section 150-5-6(2) grants authority to supervise only the organization and incorporation of such districts, we can only conclude that it was improper for Judge Cabibi to maintain, in an official capacity, such a close personal and financial relationship with the District. Such association is violative of the judicial impartiality requisite for the proper functioning of an adversary system of justice.\nIf persons in the positions of the Intervenors herein desire to invoke the jurisdiction of the proper court, it is necessary for them to initiate an adversary proceeding wherein issues required by complaint and answer may be framed and evidence germane to the relief sought may be introduced in the light of its relevancy and materiality.\nWrit of error dismissed and cause remanded with directions to vacate order and dismiss proceedings in the trial court.\nGROVES, J., not participating.\n",
"ocr": false,
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] |
Supreme Court of Colorado
|
Supreme Court of Colorado
|
S
|
Colorado, CO
|
571,122 |
Baldock, Holloway, Logan
| 1991-10-16 | false |
united-states-v-troy-t-coleman
| null |
United States v. Troy T. Coleman
|
UNITED STATES of America, Plaintiff-Appellee, v. Troy T. COLEMAN, Defendant-Appellant
|
William E. Hughes, Tulsa, Okl., for defendant-appellant., James L. Swartz, Asst. U.S. Atty., Tulsa, Okl. (Tony M. Graham, U.S. Atty., with him on the brief), for plaintiff-appellee.
| null | null | null | null | null | null | null | null | null | null | 13 |
Published
| null |
<parties id="b1526-24">
UNITED STATES of America, Plaintiff-Appellee, v. Troy T. COLEMAN, Defendant-Appellant.
</parties><br><docketnumber id="b1526-27">
No. 90-5207.
</docketnumber><br><court id="b1526-28">
United States Court of Appeals, Tenth Circuit.
</court><br><decisiondate id="b1526-29">
Oct. 16, 1991.
</decisiondate><br><attorneys id="b1528-6">
<span citation-index="1" class="star-pagination" label="1426">
*1426
</span>
William E. Hughes, Tulsa, Okl., for defendant-appellant.
</attorneys><br><attorneys id="b1528-7">
James L. Swartz, Asst. U.S. Atty., Tulsa, Okl. (Tony M. Graham, U.S. Atty., with him on the brief), for plaintiff-appellee.
</attorneys><br><judges id="b1528-8">
Before HOLLOWAY, LOGAN, and BALDOCK, Circuit Judges.
</judges>
|
[
"947 F.2d 1424"
] |
[
{
"author_str": "Holloway",
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": "http://bulk.resource.org/courts.gov/c/F2/947/947.F2d.1424.90-5207.html",
"author_id": null,
"opinion_text": "947 F.2d 1424\n UNITED STATES of America, Plaintiff-Appellee,v.Troy T. COLEMAN, Defendant-Appellant.\n No. 90-5207.\n United States Court of Appeals,Tenth Circuit.\n Oct. 16, 1991.\n \n William E. Hughes, Tulsa, Okl., for defendant-appellant.\n James L. Swartz, Asst. U.S. Atty., Tulsa, Okl. (Tony M. Graham, U.S. Atty., with him on the brief), for plaintiff-appellee.\n Before HOLLOWAY, LOGAN, and BALDOCK, Circuit Judges.\n HOLLOWAY, Circuit Judge.\n \n \n 1\n Troy T. Coleman appeals his sentence of 360 months' imprisonment imposed under the sentencing guidelines applicable to offenses involving drugs. A jury in the Northern District of Oklahoma found Coleman guilty of conspiring to possess a controlled substance with intent to distribute, in violation of 21 U.S.C. § 846, and of possessing a controlled substance with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Coleman has argued that in applying the guidelines the trial court erred in computing the offense level and the criminal history score. We affirm.\n \n \n 2\n * At trial, the government attempted to prove that Coleman participated in the efforts of a California-based drug distribution organization to expand its operations to Tulsa. Coleman was among four co-defendants named in an indictment filed on August 1, 1989.1 In addition to the two counts on which Coleman was sentenced, the indictment charged Coleman in a third count with using or carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1).\n \n \n 3\n Following Coleman's conviction on the jury verdict on all three counts in March 1990, the trial court granted him a new trial. At the close of the second trial in July 1990, a jury returned a guilty verdict on the conspiracy and possession counts, but found Coleman not guilty of the firearms offense. On September 19, 1990, the trial judge imposed a sentence that included prison terms of 360 months for each conviction, to be served concurrently, and 10 years of supervised release on each count to run concurrently.\n \n \n 4\n Following the first trial, Coleman was convicted in a separate case of violating 18 U.S.C. § 1513(a)(1) by retaliating against one of the government witnesses. Coleman was charged with that offense in an indictment returned on April 5, 1990. Prior to his sentencing on the drug-related offenses, Coleman was sentenced to serve a five-year prison term for the witness retaliation conviction.\n \n II\n \n 5\n We review de novo in considering alleged errors of law in a trial court's application of the sentencing guidelines. United States v. Kirk, 894 F.2d 1162, 1163 (10th Cir.1990). We must give due deference to a sentencing judge's application of the guidelines to the facts. 18 U.S.C. § 3742(e) (1988); United States v. Banashefski, 928 F.2d 349, 351 (10th Cir.1991). In reviewing a district court's application of the guidelines, we consider first the language of the guidelines. United States v. Smith, 900 F.2d 1442, 1446 (10th Cir.1990). In resolving ambiguities in the guidelines, we consider the notes and illustrations in the accompanying commentary. Banashefski, 928 F.2d at 351.\n \n \n 6\n Defendant Coleman argues that the trial court erred in reaching a factual conclusion that the conspiracy involved at least 500 grams of crack cocaine. Concluding that the conspiracy involved at least 500 grams of cocaine base, the probation office assigned to Coleman a base offense level of 36. XI Supp.R. 3, para. 10, 4, para. 14; see United States Sentencing Comm'n, Guidelines Manual § 2D1.1(a)(3), .1(c)(4) (1989) [hereinafter U.S.S.G. ] (Drug Quantity Table).2 After hearing the defendant's objections, the trial judge concluded that the evidence adequately supported the drug quantity reflected in the presentence report. XV Supp.R. 6, lines 8-18. The trial judge's statements on this important matter appear in the following colloquy at the sentencing hearing:\n \n \n 7\n THE COURT: Well, having to do with 500 grams or more of cocaine. Objection number 3 was regarding paragraph 14 and the conclusion of the presentence report, the conspiracy involved more than 500 grams of cocaine. And in considering objection 1, it almost would be determinative of objection number 3.\n \n \n 8\n MR. HUGHES: I agree.\n \n \n 9\n THE COURT: And I have given serious thought to your rationale and the reason of your objections, not only in the sentencing today but in sentencing of others who were parties to this conspiracy. And the testimony that they were awaiting for a kilogram of crack cocaine, although it hadn't arrived, it was a--it was supposedly in transit, the conspiracy itself and the testimony that I think was provided during the trial clearly established that there was more than 500 grams of cocaine--it was all crack cocaine--and warrants both the statement and the Court's finding that that is a fact, it's over 500 grams.\n \n \n 10\n As to Mr. Saunders being reliable and credible, frankly I found him reliable and credible.\n \n \n 11\n XV Supp.R. 6, lines 1-20.\n \n \n 12\n A sentencing court's computation of the quantity of drugs implicated by a crime is a factual finding that we review under the clearly erroneous standard. E.g., United States v. Poole, 929 F.2d 1476, 1483 (10th Cir.1991). In calculating the base offense level, the trial court may consider \"the total quantity of drugs that were part of the same course of conduct or part of a common scheme or plan as the count of conviction.\" Id.\n \n \n 13\n The defendant argues that the trial court erred by using as the basis for the 500-gram figure the speculative and inherently unreliable testimony of a government witness, Saunders. The defendant says that the basis of the trial court's drug quantity finding was this informant's testimony that at the time of their arrest, the conspirators were awaiting a shipment of approximately five kilograms of narcotics consisting of crack cocaine and \"a little bit of heroin.\" XIV Supp.R. 109, lines 2-17. The defendant contends that the testimony about the expected drug transaction did not contain the necessary \"indicia of reliability.\" U.S.S.G. § 6A1.3(a) (sentencing court may consider any relevant information that has \"sufficient indicia of reliability to support its probable accuracy\"); see, e.g., United States v. Easterling, 921 F.2d 1073, 1077 (10th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2066, 114 L.Ed.2d 470 (1991).\n \n \n 14\n The government argues that the trial court did not base the 500-gram figure solely upon the testimony about the expected drug shipment. The conclusions of the trial judge at the sentencing hearing are stated in general terms, quoted above. See XV Supp.R. 6, lines 1-20. We are satisfied that, in any event, trial evidence other than the testimony about the expected drug shipment adequately supports the trial court's conclusion that the conspiracy involved more than 500 grams of crack cocaine. Saunders, who testified about the expected drug shipment, also testified that he and Coleman had transported from California to Tulsa \"about a half a kilo or 18 ounces each time\" of crack cocaine and that they \"probably made about four trips.\" XIV Supp.R. 94, lines 2-12. Any half-kilogram, or 500-gram, amount could have satisfied the weight requirement of the base offense level of 36. Other evidence concerning quantities of drugs included Saunders' testimony that on the night before the arrests, Coleman and another participant, Matthews, had arrived in Tulsa from California with \"approximately three ounces of crack cocaine\" (approximately 85 grams). XIV Supp.R. 103, lines 1-8. At the arrest scene, the police seized 48.68 grams, or about 1.8 or 1.9 ounces, of crack cocaine. XIII Supp.R. 72, lines 20-24, 73, lines 4-8.\n \n \n 15\n The testimony about shipments of approximately half-kilogram amounts was evidence that the trial court properly could have considered in calculating the quantity of the drugs. In general, a trial court may use estimates based on information with a minimum indicia of reliability in calculating drug quantities for sentencing purposes. E.g., Easterling, 921 F.2d at 1077. The testimony about the half-kilogram shipments reasonably could be described as an estimate. Saunders testified that he and Coleman \"probably made about four trips\" and he approximated that he and Coleman had transported from California to Tulsa \"about a half a kilo or 18 ounces each time.\" XIV Supp.R. 94, lines 2-12 (emphasis added). Though an estimate, the testimony about the shipments in general comprised the type of evidence of historical transactions that is not inherently unreliable. See, e.g., Easterling, 921 F.2d at 1077-78 (approving estimate based upon probation officer's interviews with two of defendant's former drug customers). See generally U.S.S.G. § 2D1.4 Application Notes n. 2 (estimates may be based, inter alia, upon information such as price, records, and similar transactions in controlled substances by defendant). Having had the opportunity to assess firsthand the witness' demeanor, the trial judge specifically found Saunders to have been \"reliable and credible.\" XV Supp.R. 6, lines 19-20. In sum, the defendant has not convinced us that Saunders' testimony about the shipments of approximately 500 grams was too speculative or unreliable to support the trial judge's conclusions.\n \n \n 16\n We uphold the sentence on this point without addressing the defendant's argument that the testimony about the expected drug shipment was inherently unreliable. Even if the testimony about the expected drug shipment was insufficient, the testimony about the other shipments demonstrates that the trial court's conclusion that the conspiracy involved more than 500 grams of crack cocaine was not clearly erroneous.\n \n III\n \n 17\n The defendant argues further that because Coleman was acquitted of the firearms possession charge, the trial court erred in enhancing the sentence for firearms possession. We disagree.\n \n \n 18\n The officers who made the arrests discovered two handguns behind a television stand. XIII Supp.R. at 57, lines 21-25, 58, lines 1-12. As a result, the trial court determined that firearms possession was a special offense characteristic that warranted increasing the offense level by two levels. XV Supp.R. 7, lines 22-25, 8, lines 1-10; see U.S.S.G. § 2D1.1(b)(1) & Application Notes n. 3. Though acknowledging that courts have upheld sentences enhanced for firearms possession despite the defendants' acquittal of firearms charges, the defendant here urges us to reach the opposite result. Compare, e.g., United States v. Duncan, 918 F.2d 647, 652 (6th Cir.1990) (allowing enhancement under § 2D1.1(b) despite defendant's acquittal of firearms carrying charge), cert. denied, --- U.S. ----, 111 S.Ct. 2055, 114 L.Ed.2d 461 (1991) with United States v. Rodriguez, 741 F.Supp. 12, 13-14 (D.D.C.1990) (ruling that to enhance sentence under § 2D1.1(b)(1) after defendant's acquittal of firearms charge would violate due process and double jeopardy principles).\n \n \n 19\n In general in connection with offenses involving drugs, an enhancement of two levels is appropriate under the guidelines \"[i]f a dangerous weapon (including a firearm) was possessed during commission of the offense\" U.S.S.G. § 2D1.1(b)(1). The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offenses. Id. Application Notes n. 3. The government has argued that the enhancement was appropriate because the firearms were found at the arrest scene and because the testimony showed that the conspirators kept the weapons for protection.\n \n \n 20\n We have concluded that the trial court did not err in enhancing Coleman's sentence for weapons possession despite his acquittal of the firearms charge. Here there was evidence that two weapons (Government Exhibits 8 and 9) had been located for several days at the arrest scene; that they were handled at will by those persons who lived at the apartment; and that they were kept for the protection of the conspiracy participants and the money and cocaine. See XIV Supp.R. 105, lines 12-25, 106, lines 1-25. That the jury did not convict the defendant of the § 924(c) charge is not a bar to consideration of this proof. We find persuasive the decisions that have allowed a sentencing court to consider trial evidence that was applicable to a charge upon which the defendant was acquitted. See, e.g., United States v. Mocciola, 891 F.2d 13, 17 (1st Cir.1989) (deciding sentencing court may consider reliable facts underlying acquittal), declined to follow by United States v. Brady, 928 F.2d 844, 850-852 (9th Cir.1991) (refusing to enhance sentence on basis of intent to kill after defendant's acquittal of murder); see also United States v. Johnson, 911 F.2d 1394, 1401 (10th Cir.1990) (rejecting double jeopardy argument based upon use of evidence at sentencing on distribution charge where such evidence had been held lacking in specificity to support a conspiracy charge), cert. denied, --- U.S. ----, 111 S.Ct. 761, 112 L.Ed.2d 781 (1991).\n \n IV\n \n 21\n The defendant argues that the trial court erred in considering as part of his criminal history his conviction for retaliating against a witness. The trial court added three points on the basis of Coleman's five-year sentence for the witness retaliation conviction. XV Supp.R. 10, lines 9-13; see U.S.S.G. § 4A1.1(a). The defendant says that the sentence imposed on the witness retaliation offense was not an appropriate basis for increasing his criminal history score because the conviction arose out of alleged retaliation against a witness testifying against the conspirators at the first trial and so was intimately related to the conspiracy, the conspirators, and their trial; the conduct was related in the sense of being part of a single common scheme or plan. Brief of Defendant-Appellant at 14-15; see U.S.S.G. § 4A1.2(a)(1), .2(a)(2) & Application Notes n. 1.\n \n \n 22\n The guidelines allow a three-point enhancement for \"each prior sentence of imprisonment exceeding one year and one month.\" Id. § 4A1.1(a) (emphasis added). The guidelines define a \"prior sentence\" as \"any sentence previously imposed upon adjudication of guilt ... for conduct not part of the instant offense.\" Id. § 4A1.2(a)(1) (emphasis added). The defendant maintains that the conduct charged in the witness retaliation indictment was so \"intimately related\" to the conspiracy and possession offenses that it should not have been categorized as a prior sentence.\n \n \n 23\n The defendant has not made a convincing argument that his conviction for retaliation against a witness was part of the drug-related offenses for purposes of the guidelines. The possession and conspiracy charges alleged criminal conduct that began and ended before the offense charged in the witness retaliation indictment; consequently, the offenses cannot be related under the theory that they occurred \"on a single occasion.\" Id. § 4A1.2 Application Notes n. 3. At the close of Coleman's first trial on the drug charges, Coleman and Matthews allegedly assaulted Saunders while the jury was deliberating. Brief of Defendant-Appellant at 13. Thus, we feel that the two indictments clearly involved separate conduct. See Banashefski, 928 F.2d at 352-53 (ruling possession of stolen vehicle and possession of firearm by felon involved separate conduct under guidelines).\n \n \n 24\n We do not feel that the offenses were related on the theory that they charged a \"single common scheme or plan.\" See U.S.S.G. § 4A1.2 Application Notes n. 3. Nor were the offenses joined for trial or sentencing. See id. The trial court did not err as a matter of law in considering the sentence for the witness retaliation conviction as a \"prior sentence.\"\n \n V\n \n 25\n In his last argument, the defendant contends that the trial court erroneously considered as criminal history a prior sentence for which the exact date of the sentencing was unknown. In general, the guidelines provide for a one-point increase for a sentence \"imposed within five years of the defendant's commencement of the instant offense.\" U.S.S.G. § 4A1.2(d)(2)(B). The trial court added one point to Coleman's criminal history score for his conviction as a juvenile for \"auto theft\" in a California state court. See XI Supp.R. 5. The report listed the date of the arrest as \"02-15-84\" and listed the date the sentence was imposed as \"Date Unknown.\" Id. The trial court reasoned that the sentence necessarily had been imposed after the arrest, which was less than five years prior to the date the government alleged the conspiracy began, December 1988. XV Supp.R. 9, lines 2-15. The defendant has argued that the trial court erred by adding a point to the criminal history score on the basis of speculation or \"unknown information.\" Reply Brief of Defendant-Appellant at 6.\n \n \n 26\n Even though the sentencing date was unknown, the trial court did not err in considering the prior sentence in computing Coleman's criminal history. We believe the trial court had adequate information upon which it could reasonably infer that the sentence had been imposed within five years of the beginning of the conspiracy. The defendant's argument that the trial court erred because the arrest date might have been unrelated to the sentence imposed is unconvincing. The possibility of error in the dates in the adjudications listed in the presentence report is mere speculation, unsupported by any evidence presented.\n \n \n 27\n AFFIRMED.\n \n \n \n 1\n For our decisions in the appeals of the related prosecutions, see United States v. Matthews, 942 F.2d 779, 785 (10th Cir.1991) (affirming convictions for conspiracy and possession with intent to distribute cocaine base, reversing conviction for use of firearms in drug trafficking as well as sentence); United States v. Brooks, 940 F.2d 598, 601-02 (10th Cir.1991) (remanding for resentencing for possession of cocaine base as misdemeanant); United States v. Puryear, 940 F.2d 602, 604 (10th Cir.1991) (remanding for resentencing for possession of cocaine base as misdemeanant)\n \n \n 2\n All cited guidelines are those that were in effect at the time of Coleman's sentencing. A district court normally applies the guidelines in effect at the time of sentencing. 18 U.S.C. § 3553(a)(4); e.g., United States v. Underwood, 938 F.2d 1086, 1090 (10th Cir.1991). Of course, the Ex Post Facto Clause prohibits the \"retroactive application of a changed guideline if the change disadvantages the defendant.\" Id. Our comparison of the guidelines indicates that the defendant was not disadvantaged here by the application of the guidelines in effect on the date of his sentencing\n \n \n ",
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"opinion_id": 571122
}
] |
Tenth Circuit
|
Court of Appeals for the Tenth Circuit
|
F
|
USA, Federal
|
2,678,495 | null | 2014-06-16 | false |
jerry-r-v-david-ballard-warden
| null |
Jerry R. v. David Ballard, Warden
| null | null |
Civil-Other
| null | null | null | null | null | null | null | null | null | 0 |
Published
| null | null | null |
[
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": 4,
"download_url": "http://www.courtswv.gov/supreme-court/memo-decisions/spring2014/13-1090memo.pdf",
"author_id": null,
"opinion_text": " STATE OF WEST VIRGINIA\n\n SUPREME COURT OF APPEALS\n\n\n FILED\nJerry R.,\n June 16, 2014\nPetitioner Below, Petitioner RORY L. PERRY II, CLERK\n\n SUPREME COURT OF APPEALS\n\n OF WEST VIRGINIA\n\nv.) No. 13-1090 (Raleigh County 01-C-786 & 00-F-76)\n\nDavid Ballard, Warden,\n\nMount Olive Correctional Center,\n\nRespondent Below, Respondent\n\n\n MEMORANDUM DECISION\n\n Petitioner Jerry R.1, by counsel G. Todd Houck, appeals the Circuit Court of\nRaleigh County’s orders entered on April 15, 2003 and October 8, 2013, which denied\npetitioner’s request for habeas relief. The respondent David Ballard (Warden), by counsel\nLaura Young, has filed a response to the present appeal.\n\n This Court has considered the parties’ briefs and the record on appeal. The facts\nand legal arguments are adequately presented, and the decisional process would not be\nsignificantly aided by oral argument. Upon consideration of the standard of review, the\nbriefs, and the record presented, the Court finds no substantial question of law and no\nprejudicial error. For these reasons, a memorandum decision is appropriate under Rule 21\nof the Rules of Appellate Procedure.\n\n On January 12, 2000, the petitioner was indicted on fifty counts of various sexual\noffenses involving his two daughters. The petitioner pled guilty to twenty of the counts.\nHe was sentenced to a term of 85 to 185 years in the division of corrections\n\n On September 17, 2001, the petitioner filed a pro se petition for writ of habeas\ncorpus. Habeas counsel was appointed, who then filed an amended petition. On January\n28, 2003, and March 21, 2003, hearings were held to hear testimony and take evidence\nregarding the amended habeas petition. On April 15, 2003, the habeas court issued an\norder denying relief in habeas corpus that included findings of fact and conclusions of\nlaw.\n\n On October 8, 2013, the habeas court entered an order extending the time period\nfor appeal. The petitioner now appeals the circuit court’s orders, and presents two\nassignments of error.\n\n 1\n Due to the sensitive facts involved in this case, we refer to petitioner by his initials. State v. Edward\nCharles L., 183 W.Va. 641, 398 S.E.2d 123 (1990).\n\n 1\n\n\f The petitioner’s first argument is that he was denied effective assistance of\n counsel. The petitioner claims that trial counsel misled him as to the terms of the plea\n agreement or the potential exposure of a life sentence. The petitioner further claims trial\n counsel failed to challenge the voluntariness of two recorded statements he gave to police\n (on two separate days) after being given his Miranda warnings. Finally, the petitioner\n claims that trial counsel failed to question the competence or credibility of the eleven\n year old victim.\n\n We apply the following standard of review to claims of ineffective assistance of\n counsel:\n\n In the West Virginia courts, claims of ineffective assistance of\n counsel are to be governed by the two-pronged test established in\n Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674\n (1984): (1) Counsel’s performance was deficient under an objective\n standard of reasonableness; and (2) there is a reasonable probability that,\n but for counsel’s unprofessional errors, the result of the proceedings would\n have been different. Syl. Pt. 5, State v. Miller, 194 W. Va. 3, 459 S.E.2d\n 114 (1995).\n\n As we discuss below, this Court agrees with the circuit court that the trial\n attorney’s representation of the petitioner was not deficient under an objective standard of\n reasonableness. However, even were we to presume the trial attorney’s performance was\n deficient, there is nothing to suggest the result of the proceedings would have been\n different. In Hill v. Lockhart, 474 U.S. 52 (1985) the Supreme Court, applying\n Strickland, held that a defendant claiming ineffective assistance of counsel in a plea\n proceeding must demonstrate that trial counsel’s deficient advice had a negative impact\n on the outcome of the proceedings. Specifically, the Court held that to satisfy the second,\n “prejudice” prong of Strickland, “the defendant must show that there is a reasonable\n probability that, but for counsel’s errors, he would not have pleaded guilty and would\n have insisted on going to trial.” Id, 474 U.S. at 59. Finally, in order to show resulting\n prejudice from counsel ineffectiveness, a defendant must demonstrate that if he had gone\n to trial, the outcome of the proceedings could have been more favorable than the outcome\n of the plea. Id.\n\n First, we reject the petitioner’s assertion that his attorney misled him regarding the\n potential length of his sentence. The record reveals that the petitioner was not misled\n because he testified at the plea hearing that he had reviewed the possibility of a 150- to\n 340-year sentence with his trial attorney. Second, we reject the petitioner’s assertion that\n he received ineffective assistance of counsel because his attorney failed to file a motion\n to suppress his statements to police. However, the record shows the petitioner voluntarily\n went to the police station, was advised of his right to counsel and to remain silent, and\n then gave a recorded statement. Two days later, petitioner voluntarily returned to the\n police station and gave another recorded statements. The petitioner fails to establish that\n 2\n\n268\n\n\fif a motion to suppress had been filed by his trial counsel that it would have been granted.\nThe petitioner further fails to establish that if the motion to suppress had been granted\nthat the parties would have proceeded to trial, or that the outcome would have been more\nfavorable than the plea.\n\n Third and finally, the petitioner fails to prove that trial counsel’s failure to\nquestion the victim’s competency and credibility was ineffective assistance of counsel.\nW. Va. Code 61-8B-11 [1986], the “Rape Shield Statute,” states, “In any prosecution\nunder this article, neither age nor mental capacity of the victim shall preclude the victim\nfrom testifying.” Therefore, from a thorough reading of the statute and record, there is no\nindication that the victim’s competency or credibility could have been successfully\nchallenged.\n\n Moreover, the petitioner fails to establish that trial counsel’s failure to file a\nmotion to suppress the victim’s statement was ineffective assistance of counsel.\nSpecifically, the petitioner did not argue that absent failure to challenge the victim’s\nstatement, he would have not pleaded guilty and would have insisted on going to trial.\nFurthermore, the petitioner did not assert or provide any evidence to suggest that if he\nhad gone to trial, the outcome of the proceeding would have been more favorable than the\nplea.\n\n Thus, the petitioner not only failed to establish that trial counsel’s performance\nwas deficient, he also failed to carry his burden of showing that but for counsel’s\nallegedly unprofessional errors, the proceedings would have been different. Accordingly,\nthe petitioner’s argument fails the Strickland test.\n\n The petitioner’s second argument is that he was misled and coerced into entering\nthe plea agreement. The petitioner asserts that he entered the plea agreement due to a\nmixture of threats and promises made by his attorney, such as the assurance of a five or\nsix year sentence if he pled guilty.\n\n To challenge a guilty-plea conviction based upon an alleged violation of Rule 11\nof the West Virginia Rules of Criminal Procedure, a habeas petitioner must establish that\nthe violation constituted a constitutional or jurisdictional error, or show that the error\nresulted in a complete miscarriage of justice, or in a proceeding inconsistent with the\nrudimentary demands of fair procedure. Moreover, the petitioner must demonstrate that\nhe was prejudiced in that he was unaware of the consequences of his plea, and, if\nproperly advised would not have pleaded guilty. See Syl. Pt. 10, State ex. rel. Vernatter\nv. Warden, 207 W. Va. 11, 528 S.E.2d 207 (1999). Furthermore, a habeas petitioner\nseeking to overturn his guilty plea bears the burden of persuasion with respect to the\nvoluntariness of the plea. See Syl. Pt. 3, State ex. rel. Clancy v. Coiner, 154 W. Va. 857,\n179 S.E.2d 726 (1971) (“The burden of proving that a plea was involuntary made rests\nupon the pleader.”); accord Syl. Pt. 1, State ex. rel. Wilson v. Hedrick, 180 W. Va. 689,\n379 S.E.2d 493 (1989) (per curiam).\n\n 3\n\n\f The circuit court properly found that the petitioner has failed to meet the burden of\npersuasion. While the petitioner states that he was misled and coerced when entering into\nthe plea agreement, the record does not support his assertion. The petitioner was made\nfully aware of the consequences of the plea by trial counsel and the trial judge. The\nrecord further reveals that the petitioner was repeatedly informed that he did not have to\nplead guilty and that he had the opportunity to go to trial. As noted above, the petitioner\neven testified that he was aware that the counts to which he was pleading carried a\npotential sentence of 150 to 340 years. Here, the petitioner fails to: (1) establish that the\nalleged misrepresentation and coercion constituted a constitutional or jurisdiction error,\n(2) show that the error resulted in a complete miscarriage of justice or, (3) reveal\nunfairness in the proceeding. Therefore, the petitioner fails to adequately challenge his\nguilty-plea based on an alleged violation of Rule 11.\n\n The petitioner points to Blackledge v. Allison, which held that a guilty plea may be\nrendered involuntary if the evidence shows “misunderstanding, duress, or\nmisrepresentation by others” that demonstrates a constitutional deficiency. Blackledge v.\nAllison, 431 U.S. 63, 75 (1977). However, in Blackledge, the crux of the decision was\nbased on the fact that there had been no evidentiary hearing, and the case was then\nremanded to conduct an evidentiary hearing. Id.\n\n In the case at hand, the petitioner was afforded an evidentiary hearing. During the\nevidentiary hearing, trial counsel specifically testified that the potential sentence was not\nmisrepresented. The trial attorney termed the allegation that he had promised the\npetitioner a sentence of five to six years if he pled guilty, “an absolute lie.” Thus, this\nCourt can find no error with the circuit court’s findings.\n\n For the foregoing reasons we affirm.\n\n Affirmed.\n\n\n\nISSUED: June 16, 2014\n\nCONCURRED IN BY:\n\nChief Justice Robin Jean Davis\nJustice Brent D. Benjamin\nJustice Margaret L. Workman\nJustice Menis E. Ketchum\nJustice Allen H. Loughry II\n\n\n\n\n 4\n\n\f",
"ocr": false,
"opinion_id": 2678495
}
] |
West Virginia Supreme Court
|
West Virginia Supreme Court
|
S
|
West Virginia, WV
|
234,743 |
Chase, Frank, Hincks
| 1954-09-07 | false |
united-states-v-dave-witt-abraham-inkeles-and-murray-talanker
| null |
United States v. Dave Witt, Abraham Inkeles and Murray Talanker
|
UNITED STATES of America, Appellee, v. Dave WITT, Abraham Inkeles and Murray Talanker, Appellants
|
J. Edward Lumbard, U. S. Atty. for the Southern Dist. of New York, New York City (Howard A. Heffron, Brooklyn, N. Y., Leonard S. Sand, New York City, of counsel), for appellee., Murray E. Gottesman, New York City (Albert A. Blinder and John M. Foley, New York City, of counsel), for appellants Witt and Inkeles., Benenson & Israelson, New York City (Aaron Benenson, New York ,City, of counsel), for Talanker.
| null | null | null | null | null | null | null |
Argued June 9, 1954.
| null | null | 36 |
Published
| null |
<parties data-order="0" data-type="parties" id="b624-3">
UNITED STATES of America, Appellee, v. Dave WITT, Abraham Inkeles and Murray Talanker, Appellants.
</parties><br><docketnumber data-order="1" data-type="docketnumber" id="b624-5">
No. 23073.
</docketnumber><br><court data-order="2" data-type="court" id="b624-6">
United States Court of Appeals Second Circuit.
</court><otherdate data-order="3" data-type="otherdate" id="AsPU">
Argued June 9, 1954.
</otherdate><br><decisiondate data-order="4" data-type="decisiondate" id="b624-8">
Decided Sept. 7, 1954.
</decisiondate><br><attorneys data-order="5" data-type="attorneys" id="b625-14">
<span citation-index="1" class="star-pagination" label="581">
*581
</span>
J. Edward Lumbard, U. S. Atty. for the Southern Dist. of New York, New York City (Howard A. Heffron, Brooklyn, N. Y., Leonard S. Sand, New York City, of counsel), for appellee.
</attorneys><br><attorneys data-order="6" data-type="attorneys" id="b625-15">
Murray E. Gottesman, New York City (Albert A. Blinder and John M. Foley, New York City, of counsel), for appellants Witt and Inkeles.
</attorneys><br><attorneys data-order="7" data-type="attorneys" id="b625-16">
Benenson & Israelson, New York City (Aaron Benenson, New York ,City, of counsel), for Talanker.
</attorneys><br><p data-order="8" data-type="judges" id="b625-17">
Before CHASE, Chief Judge, and FRANK and HINCKS, Circuit Judges.
</p>
|
[
"215 F.2d 580"
] |
[
{
"author_str": "Frank",
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": "http://bulk.resource.org/courts.gov/c/F2/215/215.F2d.580.23073_1.html",
"author_id": null,
"opinion_text": "215 F.2d 580\n UNITED STATES of America, Appellee,v.Dave WITT, Abraham Inkeles and Murray Talanker, Appellants.\n No. 23073.\n United States Court of Appeals Second Circuit.\n Argued June 9, 1954.\n Decided September 7, 1954.\n \n J. Edward Lumbard, U. S. Atty. for the Southern Dist. of New York, New York City (Howard A. Heffron, Brooklyn, N. Y., Leonard S. Sand, New York City, of counsel), for appellee.\n Murray E. Gottesman, New York City (Albert A. Blinder and John M. Foley, New York City, of counsel), for appellants Witt and Inkeles.\n Benenson & Israelson, New York City (Aaron Benenson, New York City, of counsel), for Talanker.\n Before CHASE, Chief Judge, and FRANK and HINCKS, Circuit Judges.\n FRANK, Circuit Judge.\n \n \n 1\n The indictment, under which appellants were tried, charged that O'Brien, Talanker, Witt, Inkeles and Rourke, former Internal Revenue Agents, named as defendants, and Zelnick and Miller, named as co-conspirators but not as defendants, conspired together, in violation of 18 U.S.C. § 371 and 26 U.S.C. § 4047 (e)(4), from about December 23, 1946 until August 31, 1952, \"to defraud the United States\" and also \"to defraud the United States in its governmental function of administering the revenue laws of the United States\" free from corruption and its right to the honest and faithful services of the named revenue agents. The indictment alleged in effect that the conspiracy consisted of illegally demanding sums from taxpayers to each of whom it was represented that serious discrepancies existed between his books and his reported income, and that if he paid the demanded sum, a favorable report of his tax examination would be made.\n \n \n 2\n There was evidence from which the jury could reasonably find the following: The conspiracy originated during July of 1946 when Miller, an accountant practicing in Catskill, New York, received a letter from Talanker, then an Internal Revenue Agent, stating that the income-tax returns of Spector Bros. (one of Miller's clients) were under examination. Talanker, on a visit to Miller, informed him that Spector had failed to include some $60,000 of income in its returns. Together, Miller and Talanker went to see Spector who, after discussing the deficiency, agreed to pay $3,000 for a favorable tax report. Several weeks later, Spector, refusing to pay any more than $1,500 as a bribe, gave that sum to Miller in Talanker's presence. As was agreed, Talanker put through a favorable report on the Spector case.\n \n \n 3\n Sometime during 1947 Miller contacted the officers of the H. & H. Transportation Lines, and showed them his notes indicating that the company's tax would be well over $10,000. He then stated that the whole thing could be cleared up for $5,000 cash. A few days later, Holmes, president of H. & H. Transportation Lines, drove with Miller to 73 Winthrop Street in Albany, New York, where he paid $5,000 to an agent whom he could not positively identify at the trial. Talanker admitted that he lived at 73 Winthrop Street. Miller positively identified Talanker as the man to whom Holmes gave the money.\n \n \n 4\n Talanker left the Internal Revenue Department on June 30, 1947. In August 1947, O'Brien, who died after sentence, became Chief of the internal Revenue Department's office at Troy, New York.\n \n \n 5\n Sometime during the latter part of 1948, Miller learned that Acme Glove Corporation, another of his clients, was about to undergo an examination of its corporate tax returns by an agent named Nudelman whom Talanker characterized as a \"tough agent.\" Miller contacted Talanker; Talanker promised to get in touch with O'Brien and have the case assigned to another agent. Talanker and Miller then called on Snyder, Vice-President of Acme Glove Corporation, who agreed to pay $3,000 for a favorable examination. On October 30, 1948, when Miller and Talanker appeared with Agent Rourke, Snyder gave $3,000 to Miller in Talanker's presence. According to Miller, Talanker, Rourke and O'Brien shared the $3,000 equally.\n \n \n 6\n The tax returns of Oppenheimer, a Miller client, were assigned to Agent Zelnick for investigation in November of 1948. Miller cultivated Zelnick during the period November 1948 to March 1949, and finally, in March, persuaded Zelnick to \"fix the case.\" Miller then conferred with Oppenheimer and suggested to him that he offer Zelnick a bribe. The price agreed on was $1,000. After speaking to O'Brien, Zelnick replaced pages 3 and 4 of the Oppenheimer return with new pages so that no additional tax was due.\n \n \n 7\n The tax return of Orloff C. Barlow was \"fixed\" by Miller, Inkeles and O'Brien in June of 1949. During that month, Miller approached Talanker on the subject of the tax return of Ernest Bell, for the purpose of having Talanker arrange to have another agent substituted for the one then investigating Bell's tax returns. During this period, Talanker introduced Miller to O'Brien; O'Brien gave the file on Bell to Miller and instructed Miller to see Witt about it. Witt, under Talanker's direction, wrote out a report in Talanker's office. Miller, also under Talanker's direction, collected $1,000 from Bell. Talanker, Witt, Miller and O'Brien shared the $1,000 paid by Bell.\n \n \n 8\n During the summer of 1949, the return of the New Hotel Walters, Inc. (a Miller client) was assigned to Zelnick for investigation. Miller, Zelnick and O'Brien shared the $2,000 paid by this taxpayer for a favorable examination. Inkeles received $1,000 for \"preparing\" the return of Dr. Brown; this sum was divided among Miller, Inkeles and O'Brien. Toward the end of 1949, Miller, Inkeles and O'Brien shared the $2,000 received for \"fixing\" Dr. McQuade's return.\n \n \n 9\n Van Loan, a client of Miller's, informed Miller, sometime during 1949, that his (Van Loan's) returns were under investigation in the Boston Office. Talanker told Miller to have the case transferred to the Troy Office. Later, Talanker informed Miller that Witt had been assigned to the case. After examining the taxpayer's 1947 return, Talanker ordered Witt to write a favorable report. Miller was instructed by Talanker to obtain $1,000 from the taxpayer. Miller, Witt, Talanker and O'Brien shared this \"fee.\" Zelnick handled Van Loan's 1948 tax return, and, with Miller's help, obtained $800 for this \"fix.\"\n \n \n 10\n The Levison return was examined by Witt in December of 1949. Miller, Witt and O'Brien shared the $1,000 paid by Levison. In that same month, Miller and Zelnick collected $750 from Dr. Page.\n \n \n 11\n From June of 1950, when Talanker, Witt, Inkeles, Zelnick, O'Brien and their wives were all present at a party given by Miller, until January of 1951, five cases were \"fixed.\" Zelnick and Miller obtained $3,500 for \"fixing\" the Osborn return. Witt and Miller were paid $1,000 for \"fixing\" the Reis return. Miller and Zelnick \"fixed\" the Krauss and Ingalls returns. During this period, the 1948 Van Loan return was \"fixed.\"\n \n \n 12\n In January of 1951, Miller and Zelnick approached De Stefano Bros., although the De Stefano returns were not under investigation by any government agency. They succeeded in getting $3,000 from De Stefano Bros.\n \n \n 13\n Both Miller and Zelnick testified for the prosecution in the present case. Talanker, Witt, Inkeles and O'Brien were found guilty and sentenced. Rourke was acquitted. O'Brien died subsequent to sentencing. Talanker, Witt and Inkeles have appealed from the judgment of conviction.\n \n \n 14\n 1. Talanker contends that the proof shows not one conspiracy but a number of separate conspiracies to some of which he was not a party, and that, accordingly, we must reverse, pursuant to Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557. We do not agree. There was evidence from which the jury could reasonably conclude that appellants, together with Miller, O'Brien and Zelnick, formed a single \"ring,\" the aim of which, known to all the conspirators, was, for a \"fee\" in each instance to \"fix\" real or purported government claims based on defective income-tax returns and thus to defraud the United States; and that the operations of this single over-all conspiracy had a continuing character. It is not inconsistent with that conclusion that any particular \"fix\" was conducted by particular conspirators, or was not known to all the conspirators, or that the \"fee\" exacted in each \"fix\" was retained by those of the conspirators who participated in that \"fix.\" We think Blumenthal v. United States, 332 U.S. 539, 558, 68 S.Ct. 248, 92 L.Ed. 154 governs here. See United States v. Ganey, 2 Cir., 187 F.2d 541.\n \n \n 15\n 2. Talanker alleges error in the reception of evidence of the Spector \"fix,\" in which he and Miller participated, because it occurred in 1946, before December of that year, the earliest date named in the indictment as to the existence of the conspiracy. We think this evidence properly admissible to show the way the conspiracy came into being and its modus operandi when it operated. See United States v. Dennis, 2 Cir., 183 F.2d 201; Heike v. United States, 227 U.S. 131, 33 S.Ct. 226, 57 L.Ed. 450.\n \n \n 16\n Witt and Inkeles assert that, as against them, it was error to admit that evidence and also evidence of the Holmes \"fix,\" since both those transactions occurred without their knowledge and before the time when (according to the government) these defendants became conspirators. We think there was no error. This evidence tended to show the nature of the conspiracy in existence when these defendants joined it. United States v. Lekacos, 2 Cir., 151 F.2d 170, reversed on other grounds sub nom. Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557; Lefco v. United States, 3 Cir., 74 F.2d 66.\n \n \n 17\n 3. We see no merit in Talanker's contention that, as to him, the judge erred in admitting the testimony of the bribing of Revenue Agent Zelnick, because the indictment did not specifically charge that Talanker conspired to corrupt Zelnick. Talanker, as a member of the single, comprehensive conspiracy, was responsible for the acts of his co-conspirators which formed a part of their joint undertaking. United States v. Kissel, 218 U.S. 601, 31 S.Ct. 124, 54 L.Ed. 1168.\n \n \n 18\n 4. The indictment named, as violated statutes, 26 U.S.C. § 4047 (e)(4) and 18 U.S.C. § 371 (formerly 18 U.S.C. § 88). Under 26 U.S.C. § 3748, the statute of limitations applicable to 26 U.S.C. § 4047 (e)(4) is six years; under 18 U.S.C. § 3282, the period applicable to 18 U.S.C. § 371 is three years. Talanker contends — and we assume arguendo — that 26 U.S.C. § 4047(e) (4) relates solely to crimes by revenue agents and does not extend to others even if the latter conspired with such agents. There is no proof of overt acts by the conspirators during that period of 1947 before Talanker ceased to be a revenue agent. Later, as an accountant in private practice, he actively participated in the conspiracy in 1949 but not later. On these facts, he contends that, when the indictment was filed, on April 14, 1953, the three-year statute of limitations, 18 U.S.C. § 3282, had run.\n \n \n 19\n We do not agree. There is ample evidence that other members of the conspiracy committed overt acts as part of the conspiracy after April 14, 1950. Since Talanker failed to prove, and there is no evidence, that he ever affirmatively dissociated himself from the conspiracy, he must be deemed to have remained a party to it subsequent to April 14, 1950.1 Accordingly, since he was liable as a private person under 18 U.S.C. § 371, the three-year statute had not run in his favor when the indictment was filed. As the indictment stated that he ceased to be a revenue agent in 1947, and cited 18 U.S.C. § 371, we think it sufficiently charged him in his capacity as a private person.2\n \n \n 20\n 5. Witt and Inkeles complain that the prosecutor, in his opening statement to the jury, failed to state the character of the entire conspiracy, to read the indictment, and to refer to the names of government witnesses other than Miller and Zelnick. Not only in our opinion was this statement adequately informative,3 but none of the appellants objected to it at the time.\n \n \n 21\n 6. One of the jurors, during the trial, asked whether defendants who had not sought a bill of particulars might have done so and thereby obtained government evidence before the trial. We think the judge answered the question satisfactorily: he made it clear that no adverse inference should be drawn from the failure of defendants to seek such a bill.\n \n \n 22\n 7. During the trial, some of the jurors, with the judge's consent, put questions to witnesses and received answers. We think that a matter within the judge's discretion, like witness-questioning by the judge himself, as to which see United States v. Rosenberg, 2 Cir., 195 F.2d 583, 593-594.\n \n \n 23\n 8. One juror, during the trial, went to the library to see \"if he could find out about the ethics of a lawyer in taking cases.\" The prosecutor informed the judge and defense counsel of this fact. The judge sent for the juror who told the judge in chambers that \"he could not find what he was looking for,\" that he had formed no opinion concerning the case, that he \"had not told any of his fellow jurors\" about his investigation, that nothing he had found \"would affect him,\" and that \"he would take the law from the court.\" Nevertheless, the prosecutor moved that this juror be excused and an alternate juror substituted. After consulting the defendants, defense counsel stated that they did not join in the prosecutor's motion, which the judge denied. It is incomprehensible that defendants should now assert error in this respect.\n \n \n 24\n 9. Nor do we agree with the defendants that the judge erroneously \"appealed\" to the jury to convict them in that part of his charge quoted in the footnote,4 which is substantially similar to the charge we approved in United States v. Hiss, 2 Cir., 185 F.2d 822.\n \n \n 25\n Affirmed.\n \n \n \n Notes:\n \n \n 1\n Hyde v. United States, 225 U.S. 347, 369, 32 S.Ct. 793, 56 L.Ed. 1114; Pinkerton v. United States, 328 U.S. 640, 646, 66 S.Ct. 1180, 90 L.Ed. 1489; United States v. Compagna, 2 Cir., 146 F.2d 524, 527; United States v. Cohen, 2 Cir., 145 F.2d 82, 90; United States v. Markman, 2 Cir., 193 F.2d 574, 576\n \n \n 2\n As noted below, neither he nor any of the other defendants sought a bill of particulars\n \n \n 3\n Again it is pertinent that, as noted below, none of the defendants sought a bill of particulars\n \n \n 4\n \"Now, ladies and gentlemen, if you find that the evidence respecting the defendants, or a defendant, is as consistent with innocence as with guilt, such defendant or defendants should be acquitted. If you find that the law has not been violated, you should not hesitate for any reason to find a verdict of acquittal. But, on the other hand, if you find that the law has been violated as charged, you should not hesitate because of sympathy or any other reason to render a verdict of guilty, as a clear warning that a crime of this character may not be committed with impunity. The public is entitled to be assured of this.\"\n \n \n ",
"ocr": false,
"opinion_id": 234743
}
] |
Second Circuit
|
Court of Appeals for the Second Circuit
|
F
|
USA, Federal
|
235,582 |
Fee, Stephens, Walsh
| 1954-12-29 | false |
jack-warren-bradley-v-united-states
| null |
Jack Warren Bradley v. United States
|
Jack Warren BRADLEY, Appellant, v. UNITED STATES of America, Appellee
|
J. B. Tietz, Los Angeles, Cal., Hayden C. Covington, Brooklyn, N. Y., for appellant., Laughlin E. Waters, U. S. Atty., Hiram W. Kwan, Louis L. Abbott, Manuel L. Real, Asst. U. S. Attys., Los Angeles, Cal., for appellee.
| null | null | null | null | null | null | null | null | null | null | 17 |
Published
| null |
<parties data-order="0" data-type="parties" id="b709-7">
Jack Warren BRADLEY, Appellant, v. UNITED STATES of America, Appellee.
</parties><br><docketnumber data-order="1" data-type="docketnumber" id="b709-9">
No. 14357.
</docketnumber><br><court data-order="2" data-type="court" id="b709-10">
United States Court of Appeals, Ninth Circuit.
</court><br><decisiondate data-order="3" data-type="decisiondate" id="b709-11">
Dec. 29, 1954.
</decisiondate><br><attorneys data-order="4" data-type="attorneys" id="b710-13">
<span citation-index="1" class="star-pagination" label="658">
*658
</span>
J. B. Tietz, Los Angeles, Cal., Hayden C. Covington, Brooklyn, N. Y., for appellant.
</attorneys><br><attorneys data-order="5" data-type="attorneys" id="b710-14">
Laughlin E. Waters, U. S. Atty., Hiram W. Kwan, Louis L. Abbott, Manuel L. Real, Asst. U. S. Attys., Los Angeles, Cal., for appellee.
</attorneys><br><p data-order="6" data-type="judges" id="b710-15">
Before STEPHENS and FEE, Circuit Judges, and WALSH, District Judge.
</p>
|
[
"218 F.2d 657"
] |
[
{
"author_str": "Walsh",
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": "http://bulk.resource.org/courts.gov/c/F2/218/218.F2d.657.14357_1.html",
"author_id": null,
"opinion_text": "218 F.2d 657\n Jack Warren BRADLEY, Appellant,v.UNITED STATES of America, Appellee.\n No. 14357.\n United States Court of Appeals, Ninth Circuit.\n December 29, 1954.\n \n J. B. Tietz, Los Angeles, Cal., Hayden C. Covington, Brooklyn, N. Y., for appellant.\n Laughlin E. Waters, U. S. Atty., Hiram W. Kwan, Louis L. Abbott, Manuel L. Real, Asst. U. S. Attys., Los Angeles, Cal., for appellee.\n Before STEPHENS and FEE, Circuit Judges, and WALSH, District Judge.\n WALSH, District Judge.\n Bradley was convicted of violating the Universal Military Training and Service Act, 50 U.S.C.A.Appendix, § 451 et seq. by knowingly failing and refusing to submit to induction into the armed forces of the United States. In this appeal, he attacks his conviction upon the several grounds which will be hereinafter stated and considered.\n Bradley registered with his local board at Long Beach, California, on September 20, 1950, two days after his eighteenth birthday. On October 26, 1951, he filed with that board his classification questionnaire, wherein he signed Series XIV certifying that he was a conscientious objector, and the special form for conscientious objectors, Selective Service System Form No. 150. In his answers to the questions in Form No. 150, appellant claimed to be opposed to both combatant and noncombatant military service. He stated that he believed in a Supreme Being and that such belief involved duties which to him were superior to duties arising from any human relation; and, to describe the nature of his beliefs, he said that he was not to take part in worldly affairs and that his duty was to serve God rather than his country. He explained that he was a member of Jehovah's Witnesses and that he relied upon his mother for religious guidance. He specified his attendance at religious meetings and his preaching activities as the actions and behavior in his life which demonstrated the consistency and depth of his religious convictions. He stated that he had never given public expression to his views as a conscientious objector. He listed the names and addresses of two relatives as references who could supply information as to the sincerity of his professed convictions against participation in war.\n On January 22, 1952, the local board classified appellant as I-A (available for military service), whereupon appellant, by letter, appealed from the I-A classification and requested a personal appearance before the local board. With his notice of appeal, appellant submitted a letter1 from one Conradi, Company Servant of the Simi Company of Jehovah's Witnesses, wherein Conradi stated that he had not been acquainted with appellant very long but, during their short acquaintance, appellant had been very faithful in preaching activity and in attending Company meetings and he was convinced of appellant's sincerity \"as a Christian and a student of the ministry\". Appellant appeared personally before the local board on February 11, 1952, and a memorandum regarding such appearance was made by the board and placed in appellant's file. Immediately following appellant's personal appearance, the local board again classified him as I-A and notified him of the new classification.\n On February 18, 1952, appellant's file was forwarded to the appeal board and that body, after reviewing the file and determining that appellant should not be classified as either I-A-O (conscientious objector available for noncombatant military service only) or I-O (conscientious objector available for civilian work contributing to the maintenance of the national health, safety, or interest), on April 7, 1952 referred the file to the Department of Justice for the purpose of obtaining an advisory recommendation from the Department. On August 7, 1952, appellant was given the regular pre-induction physical examination at the Armed Forces Examining Station in Los Angeles, with the result that he was found fully acceptable for induction into the armed services. On March 19, 1953, the Department of Justice made a written recommendation adverse to appellant's conscientious objector claim to the appeal board. In its recommendation, the Department summarized the results of an F.B.I. investigation of appellant and listed details of a hearing given appellant before a hearing officer of the Department. In the latter regard, mention was made of the fact that appellant told the hearing officer he would fight in self-defense and that his conscientious objector position was his own philosophy. The hearing officer was reported to have concluded that appellant was not a conscientious objector by reason of any deep-seated religious conviction but that, if his claim was sincere, it was only an outgrowth of his personal philosophy. The Department found that appellant's objections to combatant and noncombatant service were not sustained and recommended that his claim for exemption be denied, stating specifically that its finding was based upon a consideration of the entire file and record in the case.\n On April 9, 1953, the appeal board classified appellant as I-A and he was notified of such classification on April 13, 1953. Thereafter, he was ordered to report for induction on May 18, 1953.\n On the date fixed in the order, appellant reported at the induction station, where he was fingerprinted and given a new physical examination. The new examination resulted in his being again found acceptable for service. At this point, appellant was asked if he was a conscientious objector or one who didn't believe in fighting and he replied in the affirmative. Thereupon he was sent to a sergeant2 in another room in the station, who explained to him the penalty for refusing to submit to induction. Appellant then, at the request of the sergeant, wrote and signed the following: \"I refuse to be inducted into the Armed Services of the United States\".3 Appellant thereupon left the induction station. In due course, the authorities at the station and appellant's local board reported to the United States Attorney that appellant had refused to submit to induction. His indictment, trial, and conviction followed.\n Appellant's first contention is that since he was not given an opportunity to go through the precise induction ceremony required by army regulations (Army Special Regulation No. 615-180-1),4 he is not guilty of refusing to submit to induction. He concedes that the carrying through of the induction ritual would have been a vain and idle thing in his case because of his resolution not to submit, but he argues nevertheless that his refusal was somehow less a refusal because the ritual was not carried out in all of its fullness. We cannot agree.\n Proof of the full, formal ceremony might be essential if we were asked to find that appellant had been transferred from a civilian to a military status, but we do not think the same requirement exists with regard to the question which confronts us now. Billings v. Truesdell, 321 U.S. 542, 64 S.Ct. 737, 88 L.Ed. 917; United States v. Mansavage, 7 Cir., 178 F.2d 812, 818; Corrigan v. Secretary of the Army, 9 Cir., 211 F.2d 293. It must be remembered that the issue here is not whether appellant was inducted into the armed forces, but whether he refused to be inducted. The evidence shows that appellant reported at the induction station and proceeded through the induction process to the point where it was determined finally that he was acceptable for service. All that remained was his induction or his refusal to be inducted. He was told the penalty for refusal to submit to induction, and he stated understandingly and positively that he would not submit.\n The regulation providing for the formal \"one step forward\" had its origin in the difficulties and uncertainties which formerly plagued the military authorities as to whether, in fact, a selectee had taken the oath, Corrigan v. Secretary of the Army, supra; and it had for its object the separation with certainty of those who would not be inducted from those who would. Its relaxation in appellant's case in no manner prejudiced him.5 He did, advisedly and unequivocally, what he came to the induction station to do — he refused to submit to induction.\n The next contention advanced by appellant is that the appeal board had no basis in fact either for denying his claim for classification as a conscientious objector or for classifying him in Class I-A. He argues that the I-A classification given him by the appeal board6 constituted arbitrary and capricious action on the part of the board and was, therefore, invalid; that without a valid classification to support it, the order to report for and submit to induction was a nullity; and that appellant's failure and refusal to obey the void order constituted no offense. We will preface our consideration of this facet of the case with a reference to certain principles which bear importantly upon it.\n Under the Universal Military Training and Service Act, a deferment is not a matter of right but of legislative grace; and, accordingly, the burden is upon a registrant claiming exemption to establish clearly that he is entitled thereto. 32 C.F.R., Section 1622.1(c); Dickinson v. United States, 346 U.S. 389, 395, 74 S.Ct. 152, 98 L.Ed. 132; Richter v. United States 9 Cir., 181 F.2d 591, 593; United States v. Schoebel, 7 Cir., 201 F.2d 31, 32; United States v. Wider, D.C., E.D.N.Y., 119 F.Supp. 676, 682. A right to exemption as a conscientious objector is not established merely by proving affiliation with a particular religious sect, since it is the registrant's belief and his sincerity therein, rather than the nature of the teachings of a religious faith, with which the draft board is ultimately concerned. United States v. Simmons, 7 Cir., 213 F.2d 901, 904; Gonzales v. United States, 6 Cir., 212 F.2d 71, 72. The very nature of the duty assigned to a draft board when it is required to pass upon a claim of conscientious objection, viz.: the determination of what a man believes and the conviction with which he believes it, contemplates that the decision of the board will have as its basis not direct proof of objective facts, but inferences drawn from all of the evidence before the board. American Communications Ass'n v. Douds, 339 U.S. 382, 411, 70 S.Ct. 674, 94 L.Ed. 925. Logically, then, when a reviewing court is considering whether a board's denial of a conscientious objector claim in a given case had basis in fact, the board's action is entitled to the support of any inference of sham or insincerity on the part of the registrant which the board could have drawn validly and fairly from the record upon which it acted. United States v. Simmons, supra, 213 F.2d at page 906.\n The record upon which the appeal board made its classification of Bradley consisted of the documents which we have described above, i. e., his classification questionnaire, Selective Service System Form No. 150, the Conradi letter, Bradley's letter requesting a personal appearance before the local board, the memorandum of his personal appearance, and the recommendation of the Department of Justice. Laying aside the Department recommendation, which was in accord with the appeal board's classification and which will be considered hereinafter, we search the balance of the record for support for the implicit finding of the appeal board of insincerity on the part of Bradley. Dickinson v. United States, supra, 346 U.S. at page 396, 74 S.Ct. 152.\n In his classification questionnaire, appellant stated that he had been a minister of the Jehovah's Witnesses sect since March, 1947. In the Form No. 150, which was filed with the classification questionnaire, he was asked to state fully \"When, where, and how\" he became a member of Jehovah's Witnesses and he answered: \"I learned about truth in 1940 — Long Beach, Calif. I learned from my mother and from study\". Taken together, these answers would be understood only as representations that appellant had been affiliated with Jehovah's Witnesses since 1940 and that his attachment to and activity in the sect were of such degree by March, 1947, that he had reached the status of a minister. Significantly, though, appellant omitted any answer to the question in Form No. 150 asking the name, title, and present address of the pastor or leader of the church, congregation, or meeting where he customarily attended. Significantly, too, although Form No. 150 directed that it be answered fully, he failed to make any answer to the question asking under what circumstances, if any, he believed in the use of force.\n On January 29, 1952, in his letter requesting a personal appearance after he had been classified by the local board as I-A, appellant gave a very different picture of his connection with Jehovah's Witnesses. After pointing out that his mother had been an active Witness for 12 years and had given him scriptural training during that time, he described his own relationship to the sect: \"Now I am associated with Jehovah's Witnesses organization, and have been active as a Witness for several months\". (Emphasis supplied). With his letter, he submitted the letter from Conradi,7 the person whose name and address he had withheld when he was claiming long-time membership and ministerial status in Jehovah's Witnesses; and it, also, limited to the very recent past the claim of activity by appellant as a member of the sect. A comparison of this new information with other material in the draft board file made one thing plain — appellant's religious activity was coincident with activity on the part of his local board toward determining his availability for military service.8 From this record it could be inferred, fairly and validly, that Bradley's was a case, not alone of recent conversion, Schuman v. United States, 9 Cir., 208 F. 2d 801, 805, but of recent conversion glossed by an effort to withhold or disguise the true situation. Nor could the inference be avoided by putting down to inadvertence the defects and shortcomings in the Form No. 150, since appellant said of the form in his letter regarding his personal appearance, \"I realize that I did not give much information on that form\".\n The appeal board could also have found support for its classification of appellant in the memorandum of his personal appearance before the local board, which was substantially a verbatim transcript of that proceeding. The purposes for which appellant was afforded the opportunity to appear were to permit him to discuss his classification with the board, to direct attention to information in his file which he felt the board had either overlooked or failed to weigh properly, and to present any new information which he believed would assist the board in determining his proper classification. Far from doing this, his principal contribution to the meeting was to answer the board's questions with questions of his own. It can be fairly said of his conduct and attitude that they fell considerably short of carrying the burden which was upon him to show good faith in his claim. On the whole record, we find that the appeal board had basis in fact for its classification of appellant.\n Appellant next insists that the Department of Justice recommendation was illegal and that it so colored and affected the action of the appeal board in classifying him that it rendered the classification also illegal. The argument upon the point runs like this: The hearing officer found, contrary to law, that Bradley could not be a conscientious objector because he believed in the use of force for self-defense. The hearing officer found, without any evidence to support the finding, that Bradley's conscientious objector claim, if it was sincere, was not based on any deep-rooted religious conviction but was only an outgrowth of his personal philosophy. The Department of Justice bottomed its recommendation on the improper findings of the hearing officer; and the appeal board, in turn, based its classification on the recommendation thus tainted by the hearing officer's findings.\n But, to begin with, the hearing officer made no finding that Bradley's belief in the use of force for self-defense negatived his claim of conscientious objection.9 He mentioned as a fact that Bradley would fight in self-defense, but he drew no conclusion from that fact adverse to the conscientious objector claim. Further, the hearing officer's finding that any conscientious objector claim of Bradley's was an outgrowth of his personal philosophy was supported by the interview with Bradley and, in fact, by Bradley's own statement to the hearing officer. True it is, that such evidence was in conflict with other evidence in Bradley's file, but a finding based upon conflicting evidence is a very different thing from a finding unsupported by any evidence. And, even if it were conceded that the last-mentioned finding of the hearing officer was unsupported, it would be of no aid to appellant because the Department of Justice recommendation, by its own terms, was based not on such finding but upon \"consideration of the entire file and record\".\n Finally, even if we agreed that the Department of Justice recommendation was based upon an erroneous finding that appellant's conscientious objector claim was not based on religious conviction, we could not agree that the appeal board's classification was invalid for that reason. Before the appeal board referred the case to the Department, it had itself reviewed the entire file and determined that Bradley was not a conscientious objector. We must assume that when the board received the Department report it was given consideration;10 but there is nothing in the record which would justify us in finding that the recommendation was followed. To the contrary, what the record shows is that the board reaffirmed its earlier determination as to Bradley's conscientious objector claim after notice that the Department of Justice was in accord.\n \n \n 1\n One additional point remains to be considered. Appellant asserts that the appeal board denied him due process of law by not giving him an opportunity to answer the recommendation of the Department of Justice before finally classifying him. We find no merit in this contention. Gonzales v. United States, supra; White v. United States, 9 Cir., 215 F.2d 782, 787. Although the White case involved an alleged deprivation of due process by a refusal of access to the F.B.I. investigative report, the court's reasoning in that case and its exposition of the true function of the Department of Justice in selective service cases compel the conclusion that there was no denial of due process here.\n \n \n 2\n The judgment of the court below is affirmed.\n \n \n \n Notes:\n \n \n 1\n This document is erroneously styled an affidavit in appellant's brief. Its execution was acknowledged by Conradi before a Notary Public, but it was not sworn to\n \n \n 2\n At the trial, appellant displayed complete unfamiliarity with the rank of the military personnel with whom he dealt at the induction station. He described one person with whom he talked as, \"this corporal, or colonel or whoever it was\". Thus, while he testified that he \"believed\" it was a sergeant who requested him to write his statement and we are assuming the accuracy of his testimony on this point, the statement is witnessed by both a captain and a sergeant, and it may very well have been the captain who asked him to write the statement\n \n \n 3\n At his trial, appellant testified that if he had been asked while at the induction station to take the usual \"one step forward\" to evidence and constitute his induction into the Armed Services, he would not have stepped forward or submitted to induction\n \n \n 4\n Paragraphs 23 and 27 of the regulation are pertinent and they provide in substance: The induction officer is to assemble all the selectees, advise them that they are about to be inducted into the armed services and inform them that each is to take one step forward as his name is called and that such step will constitute his induction. If a selectee refuses to step forward when his name is called, the induction officer is to remove such selectee quietly and courteously from the presence of the group about to be inducted. The officer then explains to him that his refusal to submit to induction is a felony and that upon conviction therefor he may be punished by fine or imprisonment, or both. The induction officer is then to again request the selectee to take a step forward when his name is called. If the selectee again refuses to take the one step forward, the induction officer is to ask the registrant to make a signed statement, in his own handwriting, to the effect that he refuses to submit to induction\n \n \n 5\n Cf. United States v. Hagaman, 3 Cir., 213 F.2d 86, 91\n \n \n 6\n It is this classification with which we are here concerned. Hinkle v. United States, 9 Cir., 216 F.2d 8; Goetz v. United States, 9 Cir., 216 F.2d 270\n \n \n 7\n Incidentally, this was the only documentary evidence having an origin other than appellant himself which was ever submitted to the draft boards. In view of the boards' experience with cases of Jehovah's Witnesses generally, the slenderness of this reed might well have been significant to the boards. United States v. Simmons, supra, 213 F.2d at page 906\n \n \n 8\n Bradley's classification questionnaire came to him about October 1, 1951\n \n \n 9\n This fact constitutes a major difference between our case and Shepherd v. United States, 9 Cir., 217 F.2d 942. In Shepherd, the hearing officer ruled that a belief in the right of self-defense and in the righteousness of theocratic warfare necessarily negatived a conscientious objection\n \n \n 10\n 50 U.S.C.App., Sec. 456(j), 50 U.S.C.A. Appendix, § 456(j); Selective Service System Regulations, Sec. 1626.25(c); 32 C.F.R. Sec. 1626.25(c)\n \n \n ",
"ocr": false,
"opinion_id": 235582
}
] |
Ninth Circuit
|
Court of Appeals for the Ninth Circuit
|
F
|
USA, Federal
|
1,012,347 |
Hamilton, Per Curiam, Traxler, Widener
| 2004-01-28 | false |
cuffee-v-luker
|
Cuffee
|
Cuffee v. Luker
|
Robert A. CUFFEE, Plaintiff-Appellant, v. Sergeant LUKER, Corrections Officer; Doctor Reese; Doctor Ober, Defendants-Appellees
|
Robert A. Cuffee, Appellant pro se. William W. Muse, Assistant Attorney General, Richmond, Virginia; Carlene Booth Johnson, Perry & Windels, Dillwyn, Virginia, for Appellees.
| null | null | null | null | null |
Affirmed by unpublished PER CURIAM opinion.
| null |
Submitted Jan. 15, 2004.
| null | null | 0 |
Unpublished
| null |
<parties data-order="0" data-type="parties" id="b605-28">
Robert A. CUFFEE, Plaintiff-Appellant, v. Sergeant LUKER, Corrections Officer; Doctor Reese; Doctor Ober, Defendants—Appellees.
</parties><br><docketnumber data-order="1" data-type="docketnumber" id="b605-30">
No. 03-7563.
</docketnumber><br><court data-order="2" data-type="court" id="b605-31">
United States Court of Appeals, Fourth Circuit.
</court><br><otherdate data-order="3" data-type="otherdate" id="b605-32">
Submitted Jan. 15, 2004.
</otherdate><br><decisiondate data-order="4" data-type="decisiondate" id="b605-33">
Decided Jan. 28, 2004.
</decisiondate><br><attorneys data-order="5" data-type="attorneys" id="b606-4">
<span citation-index="1" class="star-pagination" label="576">
*576
</span>
Robert A. Cuffee, Appellant pro se. William W. Muse, Assistant Attorney General, Richmond, Virginia; Carlene Booth Johnson, Perry & Windels, Dillwyn, Virginia, for Appellees.
</attorneys><br><p data-order="6" data-type="judges" id="b606-5">
Before WIDENER and TRAXLER, Circuit Judges, and HAMILTON, Senior Circuit Judge.
</p><br><p data-order="7" data-type="disposition" id="b606-6">
Affirmed by unpublished PER CURIAM opinion.
</p><br><p data-order="8" data-type="misc" id="b606-7">
Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).
</p>
|
[
"86 F. App'x 575"
] |
[
{
"author_str": "Per Curiam",
"per_curiam": false,
"type": "010combined",
"page_count": 2,
"download_url": "http://pacer.ca4.uscourts.gov/opinion.pdf/037563.U.pdf",
"author_id": null,
"opinion_text": " UNPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 03-7563\n\n\n\nROBERT A. CUFFEE,\n\n Plaintiff - Appellant,\n\n versus\n\n\nSERGEANT LUKER, Corrections Officer; DOCTOR\nREESE; DOCTOR OBER,\n\n Defendants - Appellees.\n\n\n\nAppeal from the United States District Court for the Western\nDistrict of Virginia, at Roanoke. James C. Turk, Senior District\nJudge. (CA-02-678)\n\n\nSubmitted: January 15, 2004 Decided: January 28, 2004\n\n\nBefore WIDENER and TRAXLER, Circuit Judges, and HAMILTON, Senior\nCircuit Judge.\n\n\nAffirmed by unpublished per curiam opinion.\n\n\nRobert A. Cuffee, Appellant Pro Se. William W. Muse, Assistant\nAttorney General, Richmond, Virginia; Carlene Booth Johnson, PERRY\n& WINDELS, Dillwyn, Virginia, for Appellees.\n\n\nUnpublished opinions are not binding precedent in this circuit.\nSee Local Rule 36(c).\n\fPER CURIAM:\n\n Robert A. Cuffee appeals the district court’s order\n\ndenying relief on his 42 U.S.C. § 1983 (2000) complaint. We have\n\nreviewed the record and find no reversible error. Accordingly, we\n\naffirm for the reasons stated by the district court. See Cuffee v.\n\nLuker, No. CA-02-678 (W.D. Va. July 30, 2003). We dispense with\n\noral argument because the facts and legal contentions are\n\nadequately presented in the materials before the court and argument\n\nwould not aid the decisional process.\n\n\n\n AFFIRMED\n\n\n\n\n - 2 -\n\f",
"ocr": false,
"opinion_id": 1012347
}
] |
Fourth Circuit
|
Court of Appeals for the Fourth Circuit
|
F
|
USA, Federal
|
128,825 | null | 2003-04-07 | false |
soussi-v-united-states
|
Soussi
|
Soussi v. United States
| null | null | null | null | null | null | null | null | null | null | null | null | 0 |
Published
| null | null |
[
"538 U.S. 971"
] |
[
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": "http://bulk.resource.org/courts.gov/c/US/538/538.US.971.02-9477.html",
"author_id": null,
"opinion_text": "538 U.S. 971\n SOUSSIv.UNITED STATES.\n No. 02-9477.\n Supreme Court of United States.\n April 7, 2003.\n \n 1\n CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT.\n \n \n 2\n C. A. 10th Cir. Certiorari denied. Reported below: 316 F. 3d 1095.\n \n ",
"ocr": false,
"opinion_id": 128825
}
] |
Supreme Court
|
Supreme Court of the United States
|
F
|
USA, Federal
|
448,050 | null | 1985-02-08 | false |
mercantile-natl-bkdallas-v-kastner
|
Kastner
|
Mercantile Nat'l Bk./dallas v. Kastner
| null | null | null | null | null | null | null | null | null | null | null | null | 0 |
Published
| null | null |
[
"755 F.2d 171"
] |
[
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": "http://bulk.resource.org/courts.gov/c/F2/755/755.F2d.171.84-1482.html",
"author_id": null,
"opinion_text": "755 F.2d 171\n Mercantile Nat'l Bk./Dallasv.Kastner\n 84-1482\n United States Court of Appeals,Fifth Circuit.\n 2/8/85\n \n 1\n N.D.Tex.\n \n AFFIRMED\n ",
"ocr": false,
"opinion_id": 448050
}
] |
Fifth Circuit
|
Court of Appeals for the Fifth Circuit
|
F
|
USA, Federal
|
447,900 |
Browning, Merrill, Sneed
| 1985-02-25 | false |
united-states-v-albert-a-seretti
| null |
United States v. Albert A. Seretti
|
UNITED STATES of America, Plaintiff-Appellee, v. Albert A. SERETTI, Defendant-Appellant
|
Edward R.J. Kane, Las Vegas, Nev., for plaintiff-appellee., Dominic Gentile, Las Vegas, Nev., for defendant-appellant.
| null | null | null | null | null | null | null | null | null | null | 1 |
Published
| null |
<parties data-order="0" data-type="parties" id="b893-6">
UNITED STATES of America, Plaintiff-Appellee, v. Albert A. SERETTI, Defendant-Appellant.
</parties><br><docketnumber data-order="1" data-type="docketnumber" id="b893-9">
No. 83-1194.
</docketnumber><br><court data-order="2" data-type="court" id="b893-10">
United States Court of Appeals, Ninth Circuit.
</court><br><decisiondate data-order="3" data-type="decisiondate" id="b893-11">
Feb. 25, 1985.
</decisiondate><br><attorneys data-order="4" data-type="attorneys" id="b893-16">
Edward R.J. Kane, Las Vegas, Nev., for plaintiff-appellee.
</attorneys><br><attorneys data-order="5" data-type="attorneys" id="b893-17">
Dominic Gentile, Las Vegas, Nev., for defendant-appellant.
</attorneys><br><p data-order="6" data-type="judges" id="b893-18">
Before BROWNING, Chief Judge, MERRILL and SNEED, Circuit Judges.
</p>
|
[
"754 F.2d 817"
] |
[
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": "http://bulk.resource.org/courts.gov/c/F2/754/754.F2d.817.83-1194.html",
"author_id": null,
"opinion_text": "754 F.2d 817\n UNITED STATES of America, Plaintiff-Appellee,v.Albert A. SERETTI, Defendant-Appellant.\n No. 83-1194.\n United States Court of Appeals,Ninth Circuit.\n Feb. 25, 1985.\n \n Edward R.J. Kane, Las Vegas, Nev., for plaintiff-appellee.\n Dominic Gentile, Las Vegas, Nev., for defendant-appellant.\n Before BROWNING, Chief Judge, MERRILL and SNEED, Circuit Judges.\n \n ORDER\n \n 1\n Appellant's petition for appointment of counsel to petition the Supreme Court for a writ of certiorari does not comply with section 3(e) of the Ninth Circuit Revised Provisions for the Representation on Appeal of Persons Financially Unable to Obtain Representation, which requires a petition to \"state the grounds for seeking a writ of certiorari and the reasons why the ends of justice require the appointment of counsel.\" In spite of this defect, we have reviewed appellant's case to determine whether there are any issues that might be presented to the Supreme Court for review. We conclude that a petition for certiorari would be frivolous. Appointment of counsel in a case such as this is discretionary, and is to be made \"as the interests of justice may dictate.\" 18 U.S.C. Sec. 3006A(c) (1982). Since petitioner has no substantial grounds on which to petition for certiorari, appellant's petition for appointment of counsel is denied.\n \n ",
"ocr": false,
"opinion_id": 447900
}
] |
Ninth Circuit
|
Court of Appeals for the Ninth Circuit
|
F
|
USA, Federal
|
236,415 |
Gardner, Thomas, Woodrough
| 1955-05-31 | false |
david-h-mitchell-v-united-states
| null |
David H. Mitchell v. United States
|
David H. MITCHELL, Appellant, v. UNITED STATES of America, Appellee
|
Howard F. Sachs, Kansas City, Mo., Phineas Rosenberg, Harlow B. King and Morelock, Hoskins & King, Kansas City, Mo., were with him on the brief, for appellant., Joseph L. Flynn, Asst. U. S. Atty., St. Joseph, Mo., Edward L. Scheufler, U. S. Atty., Kansas City, Mo., was with him on the brief, for appellee.
| null | null | null | null | null | null | null |
Rehearing Denied May 31, 1955.
| null | null | 4 |
Published
| null |
<parties data-order="0" data-type="parties" id="b604-3">
David H. MITCHELL, Appellant, v. UNITED STATES of America, Appellee.
</parties><br><docketnumber data-order="1" data-type="docketnumber" id="b604-5">
No. 14711.
</docketnumber><br><court data-order="2" data-type="court" id="b604-6">
United States Court of Appeals Eighth Circuit.
</court><br><decisiondate data-order="3" data-type="decisiondate" id="b604-7">
May 3, 1955.
</decisiondate><br><otherdate data-order="4" data-type="otherdate" id="b604-8">
Rehearing Denied May 31, 1955.
</otherdate><br><attorneys data-order="5" data-type="attorneys" id="b604-19">
Howard F. Sachs, Kansas City, Mo., Phineas Rosenberg, Harlow B. King and Morelock, Hoskins & King, Kansas City, Mo., were with him on the brief, for appellant.
</attorneys><br><attorneys data-order="6" data-type="attorneys" id="b604-20">
Joseph L. Flynn, Asst. U. S. Atty., St. Joseph, Mo., Edward L. Scheufler, U. S. Atty., Kansas City, Mo., was with him on the brief, for appellee.
</attorneys><br><p data-order="7" data-type="judges" id="b604-21">
Before GARDNER, Chief Judge, and WOODROUGH and THOMAS, Circuit Judges.
</p>
|
[
"221 F.2d 554"
] |
[
{
"author_str": "Gardner",
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": "http://bulk.resource.org/courts.gov/c/F2/221/221.F2d.554.14711_1.html",
"author_id": null,
"opinion_text": "221 F.2d 554\n 55-1 USTC P 9412\n David H. MITCHELL, Appellant,v.UNITED STATES of America, Appellee.\n No. 14711.\n United States Court of Appeals Eighth Circuit.\n May 3, 1955.Rehearing Denied May 31, 1955.\n \n Howard F. Sachs, Kansas City. Mo., Phineas Rosenberg, Harlow B. King and Morelock, Hoskins & King, Kansas City, Mo., were with him on the brief, for appellant.\n Joseph L. Flynn, Asst. U.S. Atty., St. Joseph, Mo., Edward L. Scheufler, U.S. Atty., Kansas City, Mo., was with him on the brief, for appellee.\n Before GARDNER, Chief Judge, and WOODROUGH and THOMAS, Circuit Judges.\n GARDNER, Chief Judge.\n \n \n 1\n This case is before us for the second time pursuant to a judgment of the United States Supreme Court which vacated the judgment of this court and remanded it 'for consideration in the light of Holland v. United States, (348 U.S. 121, 75 S.Ct. 127), Friedberg v. United States (348 U.S. 142, 75 S.Ct. 138), Smith v. United States (348 U.S. 147, 75 S.Ct. 194), and United States v. Calderon (348 U.S. 160, 75 S.Ct. 186). We have not considered the merits of these cases, nor have we determined their relationship to our recent opinions, supra, believing that reexamination by the Courts of Appeals is desirable even in those cases remotely involving the principles laid down in the net worth decisions.'\n \n \n 2\n The case has accordingly been reargued and resubmitted. The basic issues are outlined in our prior opinion reported as Mitchell v. United States, 8 Cir., 208 F.2d 854. They have not been changed by the judgment of the Supreme Court vacating our decision but the case has been remanded for reexamination because it as tried in the District Court 'remotely' involved proof of net income by resort to the so-called net worth theory.\n \n \n 3\n Although defendant interposed no motion for acquittal at the close of all the evidence and saved no exceptions to the instructions as given by the court, he nevertheless on this reexamination urges that the evidence was insufficient to sustain the verdict and that the court committed error in certain of its instructions, and in effect now seeks to retry his case de novo in this court. Thus he contends that:\n \n \n 4\n '1. In income tax prosecution based on net worth theory, there was failure of proof when the Government failed to present evidence that alleged increase in assets was attributable to taxable income rather than non-taxable sources, in that the Government failed to prove a likely taxable source from which the jury could reasonably find that the alleged net worth increases sprang; and under current authorities there was error in submitting such deficient evidence to the jury.\n \n \n 5\n '2. In income tax prosecution based on net worth theory, where alleged net worth increases were evidenced by the Government's net worth statement based on cost of assets, the trial court erred in admitting into evidence over objection appellant's financial statements based on market values which greatly exceeded cost as an alleged admission supporting said net worth proof; and the trial court further erred in instructions using said market value financial statements as alleged proof of net income under the net worth method.\n \n \n 6\n '3. Under current authorities, the trial court erred in instructions in relation to the net worth method of proving income, in that it did not present a summary of the nature of the net worth method the assumptions on which it rests, and the inferences available for the accused.'\n \n \n 7\n As has been observed there was no motion for acquittal interposed by defendant at the close of all the testimony. Only by the interposition of such a motion is the question of the sufficiency of the evidence to sustain a verdict made a question of law reviewable by this court. Leeby v. United States, 8 Cir., 192 F.2d 331; Meier & Pohlmann Furniture Co. v. Troeger, 8 Cir., 195 F.2d 193; Mitchell v. United States, 8 Cir., 208 F.2d 854, 856. We must therefore again decline to consider the question of the sufficiency of the evidence to sustain the verdict further than to observe in passing that quite aside from the evidence as to taxable income for the years in question evidenced by resort to the so-called net worth theory of computation there was direct evidence of specific omitted income in the following amounts: 1945-- $14,859.96; 1946-- $5,485.00; 1947-- $9,217.52; 1948-- $3,484.00.\n \n \n 8\n Viewing the evidence in a light most favorable to the government, as we must, the evidence of specific omitted income abundantly sustained the verdict. The theory of the defense in the trial court was not that there was not omitted taxable income but that its omission was attributable to bookkeeping errors or to a failure of defendant to consider the money as income.\n \n \n 9\n Defendant, as in his first argument of this case, again urges that the court erred in admitting certain financial statements made by him to a bank as a basis for credit. The argument is simply a repetition of the argument submitted on the first hearing of this case. Mitchell v. United States, supra. We answer it by reaffirming what we there said as follows:\n \n \n 10\n 'These exhibits purported to represent the value of Defendant's property at the time they were made. They were admissions as to his financial standing and corroborative of the testimony already introduced by the government in support of its net worth theory, which is not here challenged. It is urged that these statements may have included increases in value which could not properly be considered as income. It is observed, however, that the value of the real estate so far as disclosed by the statements shows no increase in value and there was no evidence that the statements included any increase in value as distinguished from income. Proof of Defendant's income based upon the net worth theory had already been established by evidence to which no objection is here urged. That evidence alone was substantial evidence sustaining the allegations in the counts of the indictment here involved. In addition to this evidence there was as has been pointed out competent evidence of cash income received by Defendant in each of the years involved and not reported by him in his income tax returns. It was not incumbent upon the government to prove with exactness nor precision the amount of Defendant's taxable income, but as the trial court charged it was only necessary to prove that there was a failure to make a return of the income earned, whatever the amount. Leeby v. United States, 8 Cir., 192 F.2d 331; Rollinger v. United States, 8 Cir., 208 F.2d 109. * * * As there was abundant competent proof aside from these questioned exhibits that Defendant omitted from the reported income substantial amounts the admission of these exhibits could not be prejudicial.'\n \n \n 11\n The exhibits were admissions showing knowledge of the increase over and above reported income.\n \n \n 12\n It remains to consider the contention that the court erred in certain of its instructions. The instructions were not objected to and counsel for defendant affirmatively approved them. In these circumstances we are not at liberty to review them. Finnegan v. United States, 8 Cir., 204 F.2d 105; Mitchell v. United States, supra.\n \n \n 13\n A reexamination of the entire record and the contentions urged by defendant for reversal convinces us that neither in the trial of this case by the District Court nor on the appeal in this court was any violence done to the precautionary teaching or principles announced in Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, and companion cases. The judgment appealed from is therefore affirmed.\n \n ",
"ocr": false,
"opinion_id": 236415
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] |
Eighth Circuit
|
Court of Appeals for the Eighth Circuit
|
F
|
USA, Federal
|
2,711,385 |
Walters
| 2014-05-08 | false |
two-two-v-fujitec-america-inc
| null |
Two Two v. Fujitec America, Inc.
|
Linda TWO TWO, an Individual, and Patricia Fodge, an Individual, Petitioners on Review, v. FUJITEC AMERICA, INC., a Delaware Corporation, Respondent on Review, and CENTRIC ELEVATORS CORPORATION OF OREGON INC., an Oregon Corporation, Defendant
|
Brandon B. Mayfield, Law Office of Brandon Mayfield LLC, Beaverton, argued the cause and filed the brief for petitioners on review., Thomas M. Christ, Cosgrave Vergeer Kester LLP, Portland, argued the cause and filed the brief for respondent on review. With him on the brief was Michael D. Kennedy, Kennedy Bowles, P.C., Portland., Meagan A. Flynn, Preston Bunnell & Flynn, LLP, Portland, filed the brief for amicus curiae Oregon Trial Lawyers Association.
| null | null | null | null | null | null | null |
Argued and submitted March 11,
| null | null | 2 |
Published
| null |
<otherdate id="b347-2">
Argued and submitted March 11,
</otherdate><decisiondate id="AyP">
at the Willamette University College of Law, Salem, decision of Court of Appeals affirmed in part and reversed in part, judgment of circuit court affirmed in part and reversed in part, and case remanded to circuit court for further proceedings May 8, 2014
</decisiondate><br><parties id="b347-3">
Linda TWO TWO, an individual, and Patricia Fodge, an individual,
<em>
Petitioners on Review, v.
</em>
FUJITEC AMERICA, INC., a Delaware Corporation,
<em>
Respondent on Review, and
</em>
CENTRIC ELEVATORS CORPORATION OF OREGON INC., an Oregon Corporation,
<em>
Defendant.
</em>
</parties><br><docketnumber id="b347-9">
(CC 090100985; CA A145591; SC S061536)
</docketnumber><br><citation id="b347-10">
325 P3d 707
</citation><br><attorneys id="b348-3">
<span citation-index="1" class="star-pagination" label="320">
*320
</span>
Brandon B. Mayfield, Law Office of Brandon Mayfield LLC, Beaverton, argued the cause and filed the brief for petitioners on review.
</attorneys><br><attorneys id="b348-4">
Thomas M. Christ, Cosgrave Vergeer Kester LLP, Portland, argued the cause and filed the brief for respondent on review. With him on the brief was Michael D. Kennedy, Kennedy Bowles, P.C., Portland.
</attorneys><br><attorneys id="b348-5">
Meagan A. Flynn, Preston Bunnell & Flynn, LLP, Portland, filed the brief for
<em>
amicus curiae
</em>
Oregon Trial Lawyers Association.
</attorneys><br><judges id="b348-6">
WALTERS, J.
</judges>
|
[
"355 Or. 319",
"325 P.3d 707"
] |
[
{
"author_str": "Walters",
"per_curiam": false,
"type": "010combined",
"page_count": 20,
"download_url": "http://www.publications.ojd.state.or.us/docs/S061536.pdf",
"author_id": null,
"opinion_text": "No. 27\t May 8, 2014\t319\n\n IN THE SUPREME COURT OF THE\n STATE OF OREGON\n\n Linda TWO TWO,\n an individual,\n and Patricia Fodge,\n an individual,\n Petitioners on Review,\n v.\n FUJITEC AMERICA, INC.,\n a Delaware Corporation,\n Respondent on Review,\n and\n CENTRIC ELEVATORS CORPORATION\n OF OREGON INC.,\n an Oregon Corporation,\n Defendant.\n (CC 090100985; CA A145591; SC S061536)\n\n En Banc\n On review from the Court of Appeals.*\n Argued and submitted March 11, 2014, at the Willamette\nUniversity College of Law, Salem.\n Brandon B. Mayfield, Law Office of Brandon Mayfield\nLLC, Beaverton, argued the cause and filed the brief for\npetitioners on review.\n Thomas M. Christ, Cosgrave Vergeer Kester LLP,\nPortland, argued the cause and filed the brief for respondent\non review. With him on the brief was Michael D. Kennedy,\nKennedy Bowles, P.C., Portland.\n Meagan A. Flynn, Preston Bunnell & Flynn, LLP,\nPortland, filed the brief for amicus curiae Oregon Trial\nLawyers Association.\n______________\n\t * On appeal from Multnomah County Circuit Court, Nena Cook, Judge Pro\nTem. 256 Or App 784, 305 P3d 132 (2013).\n\f320\t Two Two v. Fujitec America, Inc.\n\n WALTERS, J.\n The decision of the Court of Appeals is affirmed in part\nand reversed in part. The judgment of the circuit court\nis affirmed in part and reversed in part, and the case is\nremanded to the circuit court for further proceedings.\n Plaintiffs petitioned for review of a Court of Appeals’ decision affirming the\ntrial court’s award of summary judgment to defendant. The Court of Appeals had\nheld that plaintiffs’ ORCP 47 E affidavit was insufficient to create a question of\nfact as to defendant’s negligence, and that plaintiffs had not established that\ndefendant was subject to strict liability under ORS 30.920. Held: The decision\nof the Court of Appeals is affirmed in part and reversed in part. The trial court\nerred in granting summary judgment on plaintiffs’ negligence claim but did not\nerr in granting summary judgment on plaintiffs’ strict liability claim. Plaintiffs’\nORCP 47 E affidavit, when read in the light most favorable to plaintiffs, was suf-\nficient to create a question of fact on the issue of defendant’s negligence. However,\nplaintiffs did not establish that defendant manufactured, sold, or distributed any\ncomponents of the elevator, and thus defendant is not subject to strict liability\nunder ORS 30.920. The decision of the Court of Appeals is affirmed in part and\nreversed in part.\n The judgment of the circuit court is affirmed in part and reversed in part,\nand the case is remanded to the circuit court for further proceedings.\n\fCite as 355 Or 319 (2014)\t321\n\n\t WALTERS, J.\n\t In this case, we decide that the trial court erred\nin granting defendant’s motion for summary judgment on\nplaintiffs’ negligence claim, but did not err in granting\ndefendant’s motion for summary judgment on plaintiffs’\nstrict liability claim.\n\t Plaintiffs Linda Two Two and Patricia Fodge filed\na complaint against defendant1 that included claims for neg-\nligence and strict liability.2 Plaintiffs alleged that they had\nbeen injured in separate incidents in 2008 when an elevator\nin the building in which they worked dropped unexpectedly\nand stopped abruptly. In their negligence claim, plaintiffs\nalleged that defendant had negligently designed, installed,\nand maintained that elevator and that defendant’s neg-\nligence was the direct and proximate cause of plaintiffs’\ninjuries. Plaintiffs also alleged that their injuries were of a\ntype that would not have occurred absent someone’s negli-\ngence and that the negligence that caused their injuries was\nmore probably than not attributable to defendant. In their\nstrict liability claim, plaintiffs alleged that defendant had\ndesigned, installed, and constructed the elevator and that\nthe elevator was defective and dangerous.\n\t Defendant sought summary judgment on both\nclaims. Defendant supported its motion with various docu-\nments, including portions of a modernization contract that\ndefendant had entered into with the federal government to\nupgrade and maintain the elevator systems in the building\nin which plaintiffs worked. Defendant also filed an affida-\nvit from one of its employees stating, with regard to plain-\ntiffs’ negligence claim, that defendant’s initial moderniza-\ntion work and its continued maintenance of the elevator\nconformed to or exceeded industry standards, that defen-\ndant was not in possession or control of the elevator after\n\t1\n Plaintiffs named both Fujitec America, Inc., and Centric Elevator\nCorporation of Oregon, Inc., (Centric) as defendants. Centric is not a party on\nreview. When we refer to defendant in this opinion, we mean Fujitec America,\nInc.\n\t2\n Plaintiffs’ complaint also included a claim for breach of warranty. The trial\ncourt granted summary judgment on that claim and plaintiffs did not challenge\nthat decision on appeal to the Court of Appeals, nor do they challenge that deci-\nsion in this court.\n\f322\t Two Two v. Fujitec America, Inc.\n\nDecember 31, 2007, and that elevators can drop “through\nno fault or negligence of anyone, including, simply because\nof the age of the elevators.” With regard to plaintiffs’ strict\nliability claim, the employee averred that the elevator had\nnot been manufactured by defendant, and that defendant’s\nmodernization did not include the manufacture or design\nof the elevator or any of its component parts. Further, the\nemployee stated, the elevator’s component parts were man-\nufactured and supplied by vendors and suppliers other than\ndefendant and those vendors and suppliers had been speci-\nfied by the government or its consultants.\n\t Plaintiffs responded to the challenge to their negli-\ngence claim by submitting additional pages of the moderniza-\ntion contract, a number of exhibits that arguably demonstrated\nthat the elevator had a longstanding history of mechanical\nproblems, and an affidavit prepared by their attorney pursu-\nant to ORCP 47 E. That affidavit stated, in part:\n \t “Since the time of the filing of [p]laintiffs’ [c]omplaint\n [p]laintiffs have retained a qualified elevator expert whom\n they intend to rely on at trial to support their claims that\n [d]efendant * * was negligent in [its] service and main-\n * \n tenance of the elevators in the 911 building. Plaintiffs[’]\n expert has actually rendered an opinion or provided facts\n which, if revealed by affidavit or declaration, would be\n a sufficient basis for denying the motion for summary\n judgment.”\n\t To respond to defendant’s challenge to their strict\nliability claim, plaintiffs pointed to provisions of the mod-\nernization contract and other documents in the record as\nevidence that defendant had undertaken to redesign and\nmanufacture the elevator and that it had supplied and\ninstalled the component parts necessary to fulfill its con-\ntractual responsibilities.3\n\t3\n Plaintiffs’ ORCP 47 E affidavit also addressed plaintiffs’ strict liability\nclaim. As to that claim, the affidavit provided:\n \t “Since the time of the filing of [p]laintiffs’ [c]omplaint [p]laintiffs have\n retained a qualified elevator expert whom they intend to rely on at trial to\n support their claims that [d]efendant[’s] modernization of the elevators * * *\n was defective and dangerous to an extent beyond that which an ordinary\n consumer would have expected. Plaintiffs[’] expert has actually rendered an\n opinion or provided facts which, if revealed by affidavit or declaration, would\n be a sufficient basis for denying the motion for summary judgment.”\n\fCite as 355 Or 319 (2014)\t323\n\n\t In reply, defendant contended that plaintiffs’ ORCP\n47 E affidavit was insufficient to defeat summary judgment\non plaintiffs’ negligence claim, because it addressed only\ndefendant’s negligence in the service and maintenance of\nthe elevator and failed to raise an issue of fact about whether\ndefendant’s alleged negligence had caused plaintiffs’ inju-\nries. Defendant also argued that the other documents that\nplaintiffs had submitted in response to the motion for sum-\nmary judgment were insufficient to raise an issue of fact as\nto causation.\n\tThe trial court granted defendant’s motion for sum-\nmary judgment on both claims. As to the negligence claim,\nthe trial court explained that “there’s no admissible evi-\ndence of causation.” As to the strict liability claim, the court\nexplained that defendant had established, as a matter of\nlaw, that it “did not manufacture or sell or distribute or lease\nthe elevator * * * or any of its parts.”\n\t Plaintiffs appealed to the Court of Appeals, which\naffirmed. Two Two v. Fujitec America, Inc., 256 Or App 784,\n305 P3d 132 (2013). As to plaintiffs’ negligence claim, the\nCourt of Appeals agreed with defendant that plaintiffs’\nORCP 47 E affidavit was insufficient to defeat summary\njudgment. Id. at 791. The court understood the affidavit’s\nreference to negligence to be a reference to only one element\nof a negligence claim—failure to meet the standard of care.\nTherefore, the court reasoned, the affidavit did not address\nanother element of a negligence claim—causation—and\ncould not defeat summary judgment on that issue. Id. As\nto plaintiffs’ strict liability claim, the court concluded that\ndefendant was not subject to ORS 30.920, Oregon’s strict lia-\nbility statute. Id. at 796-97. The court explained that ORS\n30.920 does not apply to service transactions and that the\nevidence in the record demonstrated, as a matter of law, that\ndefendant’s only role was as a service provider. Defendant\nhad installed component parts manufactured and supplied\nby others; it had not sold or supplied those component parts.\nId.\n\t Plaintiffs sought, and we allowed, review. Before\nthis court, plaintiffs argue that their ORCP 47 E affidavit\nand the other evidence in the summary judgment record\n\f324\t Two Two v. Fujitec America, Inc.\n\nraised material issues of fact that precluded summary judg-\nment on both their negligence and strict liability claims. We\nturn first to plaintiffs’ negligence claim and begin with a\nreview of the summary judgment process set out in ORCP\n47.\n\t Under ORCP 47 B, a party against whom a claim\nis asserted may move, “with or without supporting affida-\nvits or declarations, for a summary judgment in that party’s\nfavor as to all or any part thereof.”\n\t ORCP 47 C provides, in part:\n \t “The court shall grant the motion if the pleadings, depo-\n sitions, affidavits, declarations and admissions on file show\n that there is no genuine issue as to any material fact and\n that the moving party is entitled to prevail as a matter of\n law. No genuine issue as to a material fact exists if, based\n upon the record before the court viewed in a manner most\n favorable to the adverse party, no objectively reasonable\n juror could return a verdict for the adverse party on the\n matter that is the subject of the motion for summary judg-\n ment. The adverse party has the burden of producing evi-\n dence on any issue raised in the motion as to which the\n adverse party would have the burden of persuasion at trial.\n The adverse party may satisfy the burden of producing evi-\n dence with an affidavit or a declaration under section E of\n this rule.”\nThus, under ORCP 47 C, the party opposing summary judg-\nment has the burden of producing evidence on any issue\n“raised in the motion” as to which the adverse party would\nhave the burden of persuasion at trial.\n\t In this case, defendant moved for summary judg-\nment and “raised in the motion” four issues with regard to\nplaintiffs’ negligence claim: that (1) defendant properly per-\nformed the modernization of the elevator; (2) defendant was\nnot in control or possession of the elevator after December 31,\n2007; (3) plaintiffs’ incidents could have occurred through no\nfault or negligence of defendant and plaintiffs thus were not\nentitled to use the doctrine of res ipsa loquitor to prove negli-\ngence; and (4) defendant properly inspected and maintained\nthe elevator through December 31, 2007. Because plaintiffs\nhad the burden of persuasion on those issues at trial, ORCP\n\fCite as 355 Or 319 (2014)\t325\n\n47 C required that they produce sufficient evidence on those\nissues to defeat summary judgment. In contrast, however,\ndefendant did not “raise in the motion” an issue on which\nit later relied—that defendant’s alleged negligence was not\na cause of plaintiffs’ injuries. Plaintiffs had the burden of\npersuasion on that issue at trial and, had defendant raised\nthat issue “in the motion,” ORCP 47 C would have required\nplaintiffs to produce evidence on the issue of causation to\ndefeat summary judgment.\n\t Instead, defendant first raised the issue of causation\nas a basis for summary judgment in its reply memorandum.\nThere, defendant argued that plaintiffs’ ORCP 47 E affidavit\nwas insufficient because it did not establish that defendant’s\nalleged negligence had any causal relationship to plaintiffs’\ninjuries or that defendant did anything that caused the ele-\nvator to drop. At the hearing on defendant’s motion, defen-\ndant pressed that argument. Plaintiffs did not specifically\nrespond; plaintiffs focused in oral argument on the evidence\nthat they contended supported their strict liability claim.\n\t When the case reached the Court of Appeals, plain-\ntiffs contended generally that their ORCP 47 E affidavit\n“should have been deemed sufficient to controvert the allega-\ntions raised” in defendant’s motion for summary judgment,\nbut they did not argue specifically that, because defendant\ndid not raise causation as a basis for its motion, plaintiffs\nwere not required to produce evidence on that issue. Rather,\nplaintiffs claimed that their affidavit created a question of\nfact as to all elements of their negligence claim, including\ncausation. Plaintiffs contended that their attorney’s aver-\nment that plaintiffs had retained an expert who had “ren-\ndered an opinion or provided facts which, if revealed by affi-\ndavit or declaration, would be a sufficient basis for denying\nthe motion for summary judgment” was sufficient to defeat\nsummary judgment. Plaintiffs take the same position in\nthis court and do not argue that they were not required to\nraise a question of fact as to causation because defendant\ndid not raise that issue in its motion for summary judgment.\n\t Thus, as this case comes to us, the Court of Appeals\nand the parties all have assumed that defendant raised lack\nof causation as a basis for its motion for summary judgment.\n\f326\t Two Two v. Fujitec America, Inc.\n\nWe too will take that course. However, we have described\nthe procedural history and the framework that ORCP 47 C\nimposes in some detail because we think it important to\nalert the bench and bar to the rule’s dictates. Parties seek-\ning summary judgment must raise by motion the issues on\nwhich they contend they are entitled to prevail as a matter of\nlaw. Parties opposing summary judgment have the burden\nof producing evidence that creates a material issue of fact as\nto those issues, but only as to those issues. If parties frame\nand join issues consistently with that framework, some dis-\nputes, such as the one in this case over the effect of plain-\ntiffs’ ORCP 47 E affidavit, may well be avoided. However,\nin this case, the dispute over the affidavit remains, and we\nwill address it both because plaintiffs did not assert the pro-\ncedural deficiency that we raise here in their briefing before\nthis court and because the question that plaintiffs do pres-\nent concerns affidavits filed pursuant to ORCP 47 E, a mat-\nter of particular significance to practitioners.\n\t The specific question to which we now turn is\nwhether the ORCP 47 E affidavit that plaintiffs filed in this\ncase, alone or in combination with the additional evidence\nin the summary judgment record, was sufficient to defeat\nsummary judgment. ORCP 47 E provides:\n \t “Motions under this rule are not designed to be used as\n discovery devices to obtain the names of potential expert\n witnesses or to obtain their facts or opinions. If a party,\n in opposing a motion for summary judgment, is required\n to provide the opinion of an expert to establish a genuine\n issue of material fact, an affidavit or a declaration of the\n party’s attorney stating that an unnamed qualified expert\n has been retained who is available and willing to testify\n to admissible facts or opinions creating a question of fact,\n will be deemed sufficient to controvert the allegations of\n the moving party and an adequate basis for the court to\n deny the motion. The affidavit or declaration shall be made\n in good faith based on admissible facts or opinions obtained\n from a qualified expert who has actually been retained by\n the attorney who is available and willing to testify and who\n has actually rendered an opinion or provided facts which,\n if revealed by affidavit or declaration, would be a sufficient\n basis for denying the motion for summary judgment.”\n(Emphasis added.)\n\fCite as 355 Or 319 (2014)\t327\n\n\t As noted, plaintiffs’ ORCP 47 E affidavit provided\nas follows:\n \t “Since the time of the filing of [p]laintiffs’ [c]omplaint\n [p]laintiffs have retained a qualified elevator expert whom\n they intend to rely on at trial to support their claims that\n [d]efendant * * was negligent in [its] service and main-\n * \n tenance of the elevators in the 911 building. Plaintiffs[’]\n expert has actually rendered an opinion or provided facts\n which, if revealed by affidavit or declaration, would be a suf-\n ficient basis for denying the motion for summary judgment.”\n(Emphasis added.)\n\t The italicized part of the second sentence of plain-\ntiffs’ affidavit mirrors the italicized portion of ORCP\n47 E.4 Defendant’s objection to the affidavit focuses not on\nthe second sentence of plaintiffs’ affidavit but on the first.\nDefendant contends that, by specifying that the expert will\nsupport plaintiffs’ claims that defendant was “negligent\nin its service and maintenance” of the elevator, plaintiffs’\nattorney acknowledged that the expert would testify only in\nsupport of the claim of negligence, and not that defendant’s\nnegligence caused plaintiffs’ injuries. Defendant relies on a\nline of Court of Appeals decisions for the proposition that,\n“when a party files an issue-specific affidavit, the trial court\nshould conclude that the party does not have an expert for\nunspecified issues.” (Emphasis in original.) That, defen-\ndant asserts, has been the practice in Oregon for a quarter-\ncentury, since Moore v. Kaiser Permanente, 91 Or App 262,\n754 P2d 615, rev den, 306 Or 661 (1988).\n\tIn Moore, a medical malpractice action, the defen-\ndants moved for summary judgment on the ground that\nthey were not negligent in their diagnosis and advice and\nthat the plaintiff’s return to work did not cause his condi-\ntion to worsen. Id. at 264. In response, the plaintiff submit-\nted both his own affidavit averring that his return to work\nhad aggravated his medical condition and an affidavit from\nhis attorney stating that he had retained an expert who “is\navailable and willing to testify to the diagnoses, standard\n\t4\n Plaintiffs’ affidavit does not aver that their expert is available and willing\nto testify. Defendant raises that deficiency in this court, but did not object to the\naffidavit on that basis in the trial court. We therefore do not consider defendant’s\nargument.\n\f328\t Two Two v. Fujitec America, Inc.\n\nof care and duty of the defendants herein.” Id. The Court of\nAppeals observed that the attorney had not stated that the\nexpert would testify to the elements of causation and dam-\nages and held that, “when a party chooses to enumerate the\nelements on which an expert will testify, even though a gen-\neral assertion would otherwise satisfy the rule, the enumer-\nation must give notice of all elements on which the expert\nmay testify.” Id. at 265 (emphasis in original). In the case\nbefore it, the court concluded, the affidavit was sufficient\nto demonstrate genuine issues of material fact only on the\nenumerated issues of diagnosis, standard of care and duty,\nor foreseeability. Id. It was insufficient to defeat summary\njudgment on the issues of causation and damages.\n\t In Moore, the court stated that the defendant’s\nmotion raised two bases for summary judgment, but, with-\nout explaining why, required that the plaintiff create a\nquestion of fact in all issues as to which the plaintiff would\nbear the burden of persuasion at trial, not only those issues\nraised in the motion. Id. The Court of Appeals may have\nbeen incorrect in that regard, but its reasoning was other-\nwise apt.\n\t As the court explained, ORCP 47 E provides that\nmotions for summary judgment are not to be used as dis-\ncovery devices to obtain either the names of potential expert\nwitnesses or their facts or opinions. That section of the rule\nauthorizes attorneys to submit, in good faith, an affidavit\nthat states that an unnamed qualified expert has been\nretained and will testify to admissible facts or opinions cre-\nating a question of fact and provides that such an affidavit\n“will be deemed sufficient to controvert the allegations of the\nmoving party” and will be an “adequate basis for the court to\ndeny the motion.” ORCP 47 E. However, the court explained,\ndifficulties may arise when an affidavit goes beyond those\nrequirements. Id.\n\t To understand why such difficulties may arise, it\nis helpful to outline the sanctions that may attach when an\nattorney files an ORCP 47 E affidavit. ORCP 47 E requires\nthat an affidavit filed pursuant to that rule be made in good\nfaith. If an affidavit is presented in bad faith, the offending\nparty must pay the reasonable expenses that the other party\n\fCite as 355 Or 319 (2014)\t329\n\nincurred as a result, including reasonable attorney fees,\nand the attorney may be subject to sanctions for contempt.\nORCP 47 G. Consequently, an attorney is precluded from\nrepresenting that an expert will create an issue of fact on\nan issue when the expert will not do so. When a motion for\nsummary judgment raises only one issue and the opposing\nattorney avers that a qualified expert will create an issue of\nfact sufficient to defeat summary judgment, a determination\nof whether the affidavit was made in good faith will often be\nfairly straightforward.5 However, when a motion for sum-\nmary judgment raises more than one issue, that analysis\nmay be more complex. It may be more likely that the attor-\nney will intend to defeat the motion with a combination of\nexpert and nonexpert evidence. The attorney is not required\nto identify the issues that the attorney will prove by expert\ntestimony and those that the attorney intends to prove\nby nonexpert evidence, and the attorney may not want to\nreveal the range or limits of the expert’s testimony. Thus, an\nattorney may aver that an expert is available and willing to\ntestify to facts or opinions creating a question of fact without\nspecifying the issues on which the expert will testify. The\nattorney may do so in good faith, as the Court of Appeals\nrecognized in Moore:\n \t “The affidavit does not have to recite on what issues\n the expert will testify. It need state only that an expert\n has been retained and is available and willing to testify to\n admissible facts or opinions that would create a question of\n fact.”\n\n91 Or App at 265.\n\t We agree. However, the fact that an attorney is\npermitted to proceed in that fashion does not mean that\nthe attorney must or will do so. An attorney may choose to\nspecifically delineate the issues that an expert will address,\n\t5\n However, there also may be circumstances in which the analysis will be\nmore complex. Under ORCP 47 E, an affidavit is necessary only if a party is\nrequired to provide the opinion of an expert to establish a genuine question of\nfact. Therefore, a party may submit a ORCP 47 E affidavit on summary judg-\nment but rely on nonexpert evidence at trial, contending that expert testimony is\nunnecessary. In that circumstance, at least, and perhaps in others, the fact that\na party submitted an ORCP 47 E affidavit but did not call an expert to testify will\nnot necessarily establish that the affidavit was not made in good faith.\n\f330\t Two Two v. Fujitec America, Inc.\n\nperhaps to add clarity to an argument or to avoid any ques-\ntion that an affidavit is made in good faith. Again, we agree\nwith the Court of Appeals’ conclusion in Moore. When, in an\naffidavit in opposition to a motion for summary judgment, an\nattorney avers that an expert will address only specific issues\nraised in the motion for summary judgment, the affidavit\nalone will defeat summary judgment only on those specified\nissues. Other evidence will be required to defeat summary\njudgment on any unspecified issues raised in the motion.6\n\t The affidavit that plaintiffs submitted in this case,\ndefendant contends, is issue-specific. According to defen-\ndant, plaintiffs averred that they had retained an expert to\ntestify to one specified element of their negligence claim—\nfailure to adhere to the standard of care—and that other\nevidence was required to defeat summary judgment on\nanother element—causation.7\n\t Defendant is correct that plaintiffs’ ORCP 47 E\naffidavit can be understood to be so limited. The affidavit\nstates that plaintiffs had retained an expert to support\ntheir claims that defendant “was negligent in [its] service\nand maintenance” of the elevator. A reasonable person could\nunderstand the quoted phrase to mean that the expert\nwould opine only on whether defendant met the standard of\ncare in performing its service and maintenance obligation.\nHowever, in context, a reasonable person also could under-\nstand that phrase to mean that the expert would opine on all\nissues necessary to defeat summary judgment on plaintiffs’\nnegligence claims. First, the affidavit states that plaintiffs\nhad retained a qualified expert to support their “claims” of\nnegligence, not to support a particular element of their neg-\nligence claims. Second, another paragraph of the affidavit\nstates that the expert also will support plaintiffs’ claims\nthat defendant’s modernization and repair of the elevator\n\t6\n In Moore, the Court of Appeals stated its conclusion a bit differently. The\ncourt concluded that, when a party chooses to enumerate the elements on which\nan expert will testify, the enumeration must give notice of all elements on which\nthe expert will testify. 91 Or App at 265. ORCP 47 E does not include any “notice”\nrequirement, and we prefer to explain the effect of an issue-specific affidavit in\ndifferent terms.\n\t7\n Defendant does not contend that other evidence was necessary to defeat\nsummary judgment on other elements of plaintiffs’ claim, such as damages.\n\fCite as 355 Or 319 (2014)\t331\n\nwas dangerous and defective. A reasonable person could\nunderstand the reference to plaintiffs’ negligence claims as\na way of identifying the two claims about which the expert\nwould testify.8 Third, the second sentence of the affidavit\nstates that plaintiffs’ expert has “rendered an opinion or\nprovided facts which, if revealed by affidavit or declaration,\nwould be a sufficient basis for denying the motion for sum-\nmary judgment.” From that sentence, a reasonable person\ncould understand that the expert’s testimony would create\na question of fact on all issues in the negligence claim for\nwhich expert testimony would be necessary, including the\nelement of causation.\n\t Although plaintiffs’ ORCP 47 E affidavit is suscep-\ntible of more than one interpretation, ORCP 47 C requires\nthat we view it, like all parts of the record, in the light most\nfavorable to plaintiffs. Plaintiffs are the nonmoving party\nand we must draw all reasonable inferences in their favor.\nSchaff v. Ray’s Land & Sea Food Co., Inc., 334 Or 94, 99,\n45 P3d 936 (2002); Jones v. General Motors Corp., 325 Or\n404, 420, 939 P2d 608 (1997). Following that instruction, we\ninterpret plaintiffs’ affidavit to mean that they had retained\na qualified expert who could testify to an opinion or facts\nthat, if revealed, would create a question of fact on all ele-\nments of plaintiffs’ negligence claim raised in the motion for\nsummary judgment. Therefore, if defendant raised the issue\nof causation in its motion for summary judgment (and, as\nnoted, we proceed as if it did), then plaintiffs’ ORCP 47 E\naffidavit was a sufficient basis for denying summary judg-\nment on that issue.\n\t Even if plaintiffs’ affidavit addressed only the stan-\ndard of care and not causation, there also is a second, inde-\npendent reason for our conclusion that the trial court erred in\ngranting summary judgment on plaintiffs’ negligence claim.\nIf we were to give plaintiffs’ affidavit the limited interpre-\ntation for which defendant advocates—that plaintiffs had\nretained an expert who could testify only that defendant\nhad failed to meet the standard of care in its service and\nmaintenance of the elevator—a jury could nonetheless infer\n\n\t8\n Plaintiffs also had pleaded a breach of warranty claim that the expert\napparently was not expected to address.\n\f332\t Two Two v. Fujitec America, Inc.\n\nfrom that evidence of negligence and other facts in the sum-\nmary judgment record that defendant’s negligence caused\nplaintiffs’ injuries.\n\t Causation may be proved by circumstantial evi-\ndence, expert testimony, or common knowledge. Trees v.\nOrdonez, 354 Or 197, 220, 311 P3d 848 (2013). In Trees, a\nmedical negligence case, the court concluded that the plain-\ntiff had adduced evidence from which a reasonable jury\ncould find that the defendant had breached the standard of\ncare by leaving protruding screws near the plaintiff’s esoph-\nagus following neck surgery. The court also concluded that\nthe jury could infer that the defendant’s alleged negligence\nhad caused the plaintiff’s injuries from the fact of the pro-\ntruding screws, expert testimony that the esophagus was\nperforated, and the fact that the plaintiff’s condition had\nimproved after the screws were removed.\n\t In this case, defendant argues, and its employee\nattested, that elevators may drop “through no fault or negli-\ngence of anyone, including, simply because of the age of the\nelevators.” Therefore, defendant contends, a reasonable jury\ncould not infer that plaintiffs’ injuries were caused by defen-\ndant from the fact of the drop alone. However, plaintiffs did\nnot rely only on the elevator’s drop to establish causation.\nThey submitted an affidavit indicating that a qualified\nexpert would testify that defendant had negligently main-\ntained and serviced the elevator. From evidence that the ele-\nvator dropped abruptly and without explanation, together\nwith evidence that defendant was negligent in maintaining\nand servicing it, a reasonable jury could infer that the eleva-\ntor did not drop due to age or some other unidentified cause\nbut because of defendant’s negligence. Of course, a reason-\nable jury also could reach a contrary conclusion, but, on\nsummary judgment, the question is not which conclusion is\nmost likely but whether an issue of fact exists that permits\njury resolution.9\n\t In this case, the trial court failed to give effect to\nplaintiffs’ ORCP 47 E affidavit, either because it failed to\n\t9\n Plaintiffs argue that, even without the ORCP 47 E affidavit, the summary\njudgment record is sufficient to defeat defendant’s motion for summary judgment\nunder the doctrine of res ipsa loquitor. We need not decide that issue.\n\fCite as 355 Or 319 (2014)\t333\n\nrecognize that the affidavit reasonably could be interpreted\nto address all issues, including causation, raised by defen-\ndant’s motion, or because it failed to recognize that, even if\nthe affidavit addressed only the standard of care, the affida-\nvit, combined with other evidence of what occurred, would\nenable a jury to infer that defendant’s breach caused plain-\ntiffs’ injuries. The trial court’s conclusion that defendant\nwas entitled to summary judgment on plaintiffs’ negligence\nclaim because “there’s no admissible evidence of causation”\nwas erroneous.\n\t We proceed to plaintiffs’ strict liability claim. As\nnoted, the trial court granted defendant’s motion for sum-\nmary judgment on that claim because the court concluded\nthat the summary judgment record demonstrated that\ndefendant did not manufacture, sell, lease, or distribute the\nelevator or any of its component parts. The Court of Appeals\nalso concluded that defendant was not subject to Oregon’s\nstrict liability statute, ORS 30.920. The court reasoned that\nthe only evidence in the record demonstrated that defendant\nprovided a service by installing component parts manufac-\ntured and supplied by others and that ORS 30.920 does not\napply to such service transactions. Two Two, 256 Or App at\n796-97.\n\t ORS 30.920 provides, in part:\n \t“(1) One who sells or leases any product in a defective\n condition unreasonably dangerous to the user or consumer\n or to the property of the user or consumer is subject to lia-\n bility for physical harm or damage to property caused by\n that condition, if:\n\n \t “(a) The seller or lessor is engaged in the business of\n selling or leasing such a product; and\n\n \t “(b) The product is expected to and does reach the user\n or consumer without substantial change in the condition in\n which it is sold or leased.”\n\nIn enacting ORS 30.920, the Oregon legislature tracked\nthe wording of the Restatement (Second) of Torts, Section\n402A (1965) and provided that the Oregon statute is to be\n\f334\t Two Two v. Fujitec America, Inc.\n\n“construed in accordance with comments a through m of\nthat Restatement section.” ORS 30.920(3).\n\tIn Hoover v. Montgomery Ward, 270 Or 498, 528 P2d\n76 (1974), this court considered the reach of Section 402A\nin deciding whether a defendant that was alleged to have\nimproperly installed a tire could be held strictly liable. The\ncourt cited cases from other jurisdictions which had held\nthat a party that provides a defectively dangerous product\nin the course of providing a service may be subject to strict\nliability under Section 402A. Id. at 501-02. In one of those\ncases, Newmark v. Gimbel’s Incorporated, 54 NJ 585, 258\nA2d 697 (1969), the New Jersey Supreme Court held that a\nbeauty shop could be strictly liable for injuries that occurred\nwhen a shop employee applied a defective permanent wave\nlotion to a patron’s hair. The Oregon Supreme Court did not\nexpress disagreement with Newmark or the other cases that\nit cited, but it declined to extend their reasoning to the case\nbefore it. The court determined that the plaintiff had not\nalleged that the tire that the defendant had supplied and\ninstalled was defectively dangerous. Hoover, 270 Or at 502.\nThe plaintiff had alleged that it was the service (the instal-\nlation) that was defective, not the product (the tire). Id. at\n502-03.\n\t In this case, we also need not decide whether a\nbusiness that supplies and installs a defective product may\nbe strictly liable for injuries caused by the product. That is\nbecause, in this case, the record on summary judgment does\nnot include evidence that defendant supplied the component\nparts that it installed in the elevator. In an affidavit that\ndefendant filed in support of its motion for summary judg-\nment, defendant’s employee averred that “[a]ll components\nfor the modernization were manufactured and supplied by\nvendors and suppliers specified by GSA or its consultants.”\nPlaintiffs claim that they submitted evidence to create\na question of fact on the issue of who supplied the com-\nponents and who manufactured the elevator. We are not\npersuaded.\n\t The evidence on which plaintiffs rely is evidence\nthat (1) defendant was hired to modernize the elevator and\nwas paid a significant sum for parts and labor; (2) defendant\n\fCite as 355 Or 319 (2014)\t335\n\nstated in a memorandum filed with the court that the micro-\nprocesser controls that defendant installed were sold by and\nshipped directly to the building by another entity (MCE);\n(3) the government’s contracting officer stated in a letter in\nDecember 2002 that defendant had performed its modern-\nization work in an outstanding manner, including providing\n“the best possible products at the best possible cost effec-\ntive prices” ’; and (4) when defendant assigned its inspection\nand maintenance responsibilities to another party—Centric\nElevator Company (Centric)—effective January 1, 2008, it\nagreed to sell parts to its assignee. We conclude that that\nevidence does not raise an issue of fact as to whether defen-\ndant supplied component parts for installation in the eleva-\ntor or manufactured the elevator.\n\t Parts of the modernization contract are in the\nsummary judgment record. One page of the contract is the\nbid schedule demonstrating that the total bid price was\n$1,011,753.30. The first item on the bid schedule is “elevator\nmodernization” with a lump sum base bid of $856,964.90.\nAnother page of the contract describes the services required\nfor the “initial work” (which we take to be the “modern-\nization”) as inspection of the elevators, submission of an\ninspection report specifying the deficiencies that require\ncorrection, and repair or adjustment of the deficiencies as\ndetermined by the government. That page does not require\ndefendant to manufacture the elevator or to supply any\nparts necessary to repair it, and no other evidence in the\nrecord shows that defendant billed or was paid for parts that\nit supplied. Other items on the bid schedule are for interim\nand long-term maintenance. The pages of the contract that\ndescribe defendant’s scheduled maintenance and call-back\nobligations also do not require defendant to provide the parts\nnecessary to fulfill those obligations. However, with respect\nto “minor repair work,” those pages provide that defendant\nwill be reimbursed for “material” at cost, but that the gov-\nernment has the right to furnish to defendant “all parts\nand/or materials required for a particular repair.” Plaintiffs\ndid not produce any documents indicating that defendant\ndid any “minor repair work” pursuant to those provisions\nor that defendant, as opposed to the government, supplied\nparts or materials in fulfilling its obligations.\n\f336\t Two Two v. Fujitec America, Inc.\n\n\t The letter congratulating defendant for “providing\nthe best possible products at the best possible cost effective\nprices” was sent in 2002, after the modernization was com-\nplete but before defendant began its long-term maintenance\nresponsibilities. Given that the contract price for the eleva-\ntor modernization is stated as a lump sum and that neither\nthe contract nor any other document in the record indicates\nthat that lump sum included reimbursement for parts sup-\nplied by defendant or that defendant billed for or received\npayment for such parts, it is not reasonable to infer from the\nletter alone that the contracting officer was congratulating\ndefendant for supplying component parts.10 Rather, read in\nconjunction with the contract, the letter appears to congrat-\nulate defendant for providing services that resulted in the\nbest possible elevator system at a reasonable contract price.\n\t We also do not view defendant’s representation that\nMCE supplied component parts as raising an issue of fact\nabout whether defendant did so. The affidavit submitted by\ndefendant’s employee avers that MCE is a third party and\nthat MCE, not defendant, supplied component products.\n\t Finally, the summary judgment record indicates\nthat, in October 2007, defendant assigned its contract to per-\nform long-term service and maintenance services to Centric,\nwhich assumed all contractual rights and obligations effec-\ntive January 1, 2008. In the assignment agreement, defen-\ndant agreed to provide Centric with parts and warranted\nthem for one year. However, the agreement between defen-\ndant and Centric, which also appointed Centric as a distrib-\nutor of defendant’s products, did not require Centric to pro-\ncure products only from defendant. Centric was permitted\nto obtain products from other manufacturers in certain cir-\ncumstances. The summary judgment record is devoid of evi-\ndence that defendant actually sold parts to Centric or that\nCentric installed defendant’s parts in the elevator in which\nplaintiffs were injured. We therefore agree with the Court\n\n\t10\n It may be true, as amicus curiae Oregon Trial Lawyers Association\nobserves, that a defendant may be liable for supplying a product even without\ncharging for it. See Fulbright v. Klamath Gas Co., 271 Or 449, 459-60, 533 P2d\n316 (1975) (defendant that supplied vine burner free of charge subject to strict\nliability). There must, however, be at least some evidence that the defendant is\nthe supplier. Here, the record contains no such evidence.\n\fCite as 355 Or 319 (2014)\t337\n\nof Appeals and the trial court that plaintiffs did not raise\nan issue of fact as to whether defendant manufactured the\nelevator or its supplied component parts.\n\t Before concluding, however, we think it important to\ncaution against a misreading of this or the Court of Appeals\nopinion. In explaining its decision, the Court of Appeals\nstated that the “evidence only supports the allegation that\n[defendant] provided a service by installing, per [the gov-\nernment’s] conditions and specifications, component parts\nmanufactured and supplied by other parties.” Two Two, 256\nOr App at 796. The court’s statement is a correct statement\nof the facts in the record in this case; the record indicates\nthat defendant installed parts that the government speci-\nfied. However, the government’s specification is not material\nto our analysis. Under ORS 30.920, anyone that is in the\nbusiness of selling a product that is dangerously defective is\nliable for resulting injuries. That statute protects consum-\ners of such products even if, as may often be the case, the\nconsumers themselves select the products. See Restatement\n§ 402A comment m (explaining that rule does not require\nshowing of consumer reliance on the seller). Thus, if there\nhad been evidence in this case that defendant had supplied\nthe component parts that it installed, the fact that the gov-\nernment had specified those parts would not have relieved\ndefendant of responsibility. Similarly, if there were evidence\nthat defendant had supplied the component parts used in\nperforming its repair and maintenance obligations, it would\nnot matter that the parts originally were manufactured and\nsupplied to defendant by others up the supply chain. It is\nnot only the manufacturer or the original seller that may be\nheld strictly liable for a dangerously defective product. Any\nseller in the chain of distribution is subject to strict liabil-\nity under ORS 30.920 and Section 402A. See Restatement\n§ 402A comment f (providing that strict liability applies not\njust to the original wholesale seller, but also to subsequent\nsellers and distributors of the product).\n\t In summary, the trial court erred in granting sum-\nmary judgment on plaintiffs’ negligence claim but did not\nerr in granting summary judgment on plaintiffs’ strict lia-\nbility claim.\n\f338\t Two Two v. Fujitec America, Inc.\n\n\t The decision of the Court of Appeals is affirmed in\npart and reversed in part. The judgment of the circuit court\nis affirmed in part and reversed in part, and the case is\nremanded to the circuit court for further proceedings.\n\f",
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] |
Oregon Supreme Court
|
Oregon Supreme Court
|
S
|
Oregon, OR
|
237,338 |
Goodrich, McLAUGHLIN, Staley
| 1955-08-19 | false |
jeavon-l-eckman-and-john-p-eckman-v-abe-baker-individually-and-trading
| null |
Jeavon L. Eckman and John P. Eckman v. Abe Baker, Individually and Trading as Simmonds Upholstering Co
|
Jeavon L. ECKMAN and John P. Eckman, Appellants, v. Abe BAKER, Individually and Trading as Simmonds Upholstering Co.
|
Paul E. Moses, Pittsburgh, Pa., (Evans, Ivory & Evans, Pittsburgh, on the brief), for appellants., Thomas P. Monteverde, Pittsburgh, Pa., (James J. Burns, Jr., Pittsburgh, Pa., on the brief), for appellee.
| null | null | null | null | null | null | null |
Argued April 18, 1955.
| null | null | 12 |
Published
| null |
<parties data-order="0" data-type="parties" id="b1002-12">
Jeavon L. ECKMAN and John P. Eckman, Appellants, v. Abe BAKER, Individually and Trading as Simmonds Upholstering Co.
</parties><docketnumber data-order="1" data-type="docketnumber" id="aky-dedup-0">
No. 11520.
</docketnumber><br><court data-order="2" data-type="court" id="b1002-15">
United States Court of Appeals Third Circuit.
</court><br><otherdate data-order="3" data-type="otherdate" id="b1002-16">
Argued April 18, 1955.
</otherdate><br><decisiondate data-order="4" data-type="decisiondate" id="b1002-17">
Decided Aug. 19, 1955.
</decisiondate><br><attorneys data-order="5" data-type="attorneys" id="b1003-15">
<span citation-index="1" class="star-pagination" label="955">
*955
</span>
Paul E. Moses, Pittsburgh, Pa., (Evans, Ivory & Evans, Pittsburgh, on the brief), for appellants.
</attorneys><br><attorneys data-order="6" data-type="attorneys" id="b1003-16">
Thomas P. Monteverde, Pittsburgh, Pa., (James J. Burns, Jr., Pittsburgh, Pa., on the brief), for appellee.
</attorneys><br><p data-order="7" data-type="judges" id="b1003-17">
Before GOODRICH, McLAUGHLIN and STALEY, Circuit Judges.
</p>
|
[
"224 F.2d 954"
] |
[
{
"author_str": "Staley",
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"type": "010combined",
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"download_url": "http://bulk.resource.org/courts.gov/c/F2/224/224.F2d.954.11520.html",
"author_id": null,
"opinion_text": "224 F.2d 954\n Jeavon L. ECKMAN and John P. Eckman, Appellants,v.Abe BAKER, Individually and Trading as Simmonds Upholstering Co.\n No. 11520.\n United States Court of Appeals Third Circuit.\n Argued April 18, 1955.\n Decided August 19, 1955.\n \n Paul E. Moses, Pittsburgh, Pa., (Evans, Ivory & Evans, Pittsburgh, on the brief), for appellants.\n Thomas P. Monteverde, Pittsburgh, Pa., (James J. Burns, Jr., Pittsburgh, Pa., on the brief), for appellee.\n Before GOODRICH, McLAUGHLIN and STALEY, Circuit Judges.\n STALEY, Circuit Judge.\n \n \n 1\n The plaintiffs (appellants), Jeavon L. Eckman and John P. Eckman, who are wife and husband and citizens of Pennsylvania, brought a trespass action in the Federal District Court for the Western District of Pennsylvania against Abe Baker, a citizen of Massachusetts. The complaint discloses the following facts: The suit resulted from an automobile accident which occurred in Allegheny County in the Western District of Pennsylvania involving a car which was owned and driven by the husband-plaintiff and another car which was owned by Christine Heftye and driven by her husband, Rudolph T. Heftye. Baker came into the picture because, at the time of the accident, Rudolph T. Heftye was driving the car within the course of employment for the defendant, Baker, and so, under well-known agency principles, Baker could be held liable for Heftye's misconduct.\n \n \n 2\n Service was effected upon the defendant by substituted service in accordance with the provisions of the Pennsylvania Act of May 14, 1929, P.L. 1721, as amended by the Act of May 23, 1949, P.L. 1651, 75 Purdon's Pa.Stat.Ann. § 1201, the pertinent section of which reads as follows:\n \n \n 3\n \"* * * [A]ny nonresident of this Commonwealth, being the operator or owner of any motor vehicle, who shall accept the privilege extended by the laws of this Commonwealth to nonresident operators and owners of operating a motor vehicle, or of having the same operated * * * shall, by such acceptance * * * and by the operation of such motor vehicle within the Commonwealth of Pennsylvania, make and constitute the Secretary of Revenue of the Commonwealth of Pennsylvania his, her, or their agent for the service of process. * * *\"\n \n \n 4\n After a preliminary hearing, the district court quashed the service of the summons and the complaint upon Baker because it construed the term \"operator\" in the Pennsylvania statute quoted above as limited in meaning to \"driver.\" Since the pleadings disclosed that Baker was neither the owner nor the driver of the car which collided with husband-plaintiff's car, substituted service was not permitted.\n \n \n 5\n In arriving at its conclusion, the district court followed the decisions of four different common pleas courts of Pennsylvania.1 (Substituted service in accord with Pennsylvania law is permitted by Rule 4(d) (7) of the Federal Rules of Civil Procedure, 28 U.S.C.)\n \n \n 6\n The questions raised by the plaintiffs are whether the district court was bound to follow the common pleas courts' decisions, and, if not, whether the district court correctly concluded, 126 F.Supp. 656, that Pennsylvania law would not permit substituted service upon Baker.\n \n \n 7\n The common pleas decisions are the only Pennsylvania decisions which directly interpret the meaning of \"operator\" in the nonresident motorist statute; no Pennsylvania appellate courts have specifically decided the point. We do not think that those decisions are binding upon the federal courts.\n \n \n 8\n We are faced with a problem similar to that which faces a federal court when applying state law under the Rules of Decision Act,2 although here we look to state law because of Rule 4(d) (7). This court has held that the decisions of the lower non-appellate courts of Pennsylvania which have only a county-wide jurisdiction are not controlling upon the federal courts, with the exception that if there is a sufficient body of nisi prius opinion to form a consensus of legal thought on a given subject, the federal court should join in the consensus.3 What would constitute such a consensus is a problem which can only be answered as each specific fact situation is reviewed. Here we have decisions from four common pleas courts rendered over a twenty-year period. A common pleas court sitting in any one of sixty-three other counties in Pennsylvania would not be bound by that which has been decided in the other four as to the construction of the statute involved. Under such circumstances, we do not think there exists in Pennsylvania, a sufficient body of nisi prius law to which we should defer.\n \n \n 9\n We shall accordingly attempt to arrive at that result which we think the appellate courts of Pennsylvania would reach.\n \n \n 10\n The statutory language does not provide a definitive answer as to whether Baker was subject to substituted service. The term \"operator\" could be given a narrow meaning limited to \"driver\" or a more liberal meaning which would include one such as Baker who would be an operator in that he caused a car to be operated which he did not own. Perhaps either construction would be reasonable were we playing the role only of grammatical analysts. But, when statutory language can reasonably be read in more than one way, we must not limit ourselves in the process of construing words and phrases to a paper and printer's ink analysis.\n \n \n 11\n Many states have nonresident motorist statutes. Although all these statutes are not identical, they all have the same primary purpose. It is to afford to local residents access to local courts for suits against nonresident tortfeasors, thereby giving the local residents an opportunity to bring a suit which they could not or would not do otherwise because of the many practical, financial, and geographical obstacles.\n \n \n 12\n A construction of the statute that limits the word \"operator\" to \"driver\" would mean that the legislature intended to allow substituted service upon some tortfeasors but not others.\n \n \n 13\n Assuming the facts of the complaint to be true, as we must, defendant Baker is just as liable as a tortfeasor as the driver Heftye. It seems clear to us that to fulfill the legislative policy, the term \"operator\" must be construed to include one such as Baker who neither owned nor drove the accident car but was responsible for its presence on the highways of Pennsylvania.\n \n \n 14\n The rule of construction in our situation is to give effect to the will of the legislature, and there is no evidence that the legislature intended to discriminate in favor of any class of nonresident tortfeasors who through the operation of a motor vehicle in Pennsylvania become legally responsible to Pennsylvania citizens. Act of May 28, 1937, P.L. 1019, 46 Purdon's Pa.Stat.Ann. § 551. The word \"operate\" is commonly understood to mean control and management as well as performance of the physical act. The Pennsylvania Supreme Court in Midora v. Alfieri, 1941, 341 Pa. 27, 17 A.2d 873, very clearly indicated that it has a like understanding of the word. In that case, substituted service was made upon a New Jersey corporation because it was alleged that the corporation operated a motor vehicle in Pennsylvania since the driver of the car was an employee of the corporation. The Supreme Court of Pennsylvania held that there was no jurisdiction over the corporation only because the evidence at the preliminary hearing clearly showed that the driver was not an employee of the corporation. The court's language clearly indicates that had the driver been an employee of the corporation, the corporation would have been considered the \"operator\" — and, of course, a corporation cannot drive.\n \n \n 15\n Ohio and New Jersey have statutes similar to the Pennsylvania statute. Appellate courts of both states have construed the word \"operator\" to mean not only the actual driver, but also the person in whose behalf a motor vehicle is being driven, whether or not such person is the owner. Pray v. Meier, 1942, 69 Ohio App. 140, 40 N.E.2d 850, 43 N.E. 2d 318; McLeod v. Birnbaum, 1936, 14 N.J.Misc. 485, 185 A. 667. We believe that the Pennsylvania Supreme Court would reach the same result. The various arguments presented by the defendants have not persuaded us otherwise.\n \n \n 16\n For the foregoing reasons, the order of the district court will be reversed and the cause will be remanded with instructions that the service effected upon defendant Baker be reinstated.\n \n \n \n Notes:\n \n \n 1\n Riccio v. Niagara Cotton Co., 1931, 15 Lehigh Co.L.J. 195, 47 York Leg.Rec. 70; Darling v. Paramount Line, Inc., 1941, 24 Erie L.J. 109; Burns v. Philadelphia Transportation Co., 1942, 44 Pa. Dist. & Co. 654; Stouffer v. Eastern Motor Dispatch, Inc., 1951, 80 Pa.Dist. & Co. 30\n \n \n 2\n See King v. Order of United Commercial Travelers, 1948, 333 U.S. 153, 68 S.Ct. 488, 92 L.Ed. 608\n \n \n 3\n Berkshire Land Co. v. Federal Security Co., 3 Cir., 1952, 199 F.2d 438, 440-441; Sunbeam Corp. v. Civil Service Employees' Cooperative Ass'n, 3 Cir., 1951, 187 F.2d 768, 771-772\n \n \n ",
"ocr": false,
"opinion_id": 237338
}
] |
Third Circuit
|
Court of Appeals for the Third Circuit
|
F
|
USA, Federal
|
664,212 | null | 1994-01-13 | false |
united-states-v-mandel
|
Mandel
|
United States v. Mandel
| null | null | null | null | null | null | null | null | null | null | null | null | 0 |
Published
| null | null |
[
"17 F.3d 1426"
] |
[
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": "http://bulk.resource.org/courts.gov/c/F3/17/17.F3d.1426.93-1475.html",
"author_id": null,
"opinion_text": "17 F.3d 1426\n U.S.v.Mandel\n NO. 93-1475\n United States Court of Appeals,Second Circuit.\n Jan 13, 1994\n \n 1\n Appeal From: E.D.N.Y.\n \n \n 2\n AFFIRMED.\n \n ",
"ocr": false,
"opinion_id": 664212
}
] |
Second Circuit
|
Court of Appeals for the Second Circuit
|
F
|
USA, Federal
|
415,995 | null | 1982-06-15 | false |
perkins-v-secretary-of-health-and-human-services
|
Perkins
|
Perkins v. Secretary of Health and Human Services
| null | null | null | null | null | null | null | null | null | null | null | null | 0 |
Published
| null | null |
[
"703 F.2d 565"
] |
[
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": "http://bulk.resource.org/courts.gov/c/F2/703/703.F2d.565.81-5353.html",
"author_id": null,
"opinion_text": "703 F.2d 565\n Perkinsv.Secretary of Health and Human Services\n 81-5353\n UNITED STATES COURT OF APPEALS Sixth Circuit\n 6/15/82\n \n 1\n E.D.Ky.\n \n AFFIRMED\n ",
"ocr": false,
"opinion_id": 415995
}
] |
Sixth Circuit
|
Court of Appeals for the Sixth Circuit
|
F
|
USA, Federal
|
573,199 |
Beam, Heaney, Loken, Per Curiam
| 1991-12-17 | false |
bogdan-wojcik-v-immigration-and-naturalization-services
| null |
Bogdan Wojcik v. Immigration and Naturalization Services
|
Bogdan WOJCIK, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICES, Respondent
|
Herbert A. Igbanugo, Minneapolis, Minn., for petitioner., Karen Fletcher Torstenson, Washington, D.C. (Stuart M. Gerson and Robert Kendall, Jr., on brief), for respondent.
| null | null | null | null | null | null | null |
Submitted Oct. 15, 1991.
| null | null | 13 |
Published
| null |
<parties id="b280-3">
Bogdan WOJCIK, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICES, Respondent.
</parties><br><docketnumber id="b280-7">
No. 91-1920.
</docketnumber><br><court id="b280-8">
United States Court of Appeals, Eighth Circuit.
</court><br><otherdate id="b280-9">
Submitted Oct. 15, 1991.
</otherdate><br><decisiondate id="b280-10">
Decided Dec. 17, 1991.
</decisiondate><br><attorneys id="b280-17">
Herbert A. Igbanugo, Minneapolis, Minn., for petitioner.
</attorneys><br><attorneys id="b280-18">
Karen Fletcher Torstenson, Washington, D.C. (Stuart M. Gerson and Robert Kendall, Jr., on brief), for respondent.
</attorneys><br><judges id="b280-19">
Before BEAM and LOKEN, Circuit Judges, and HEANEY, Senior Circuit Judge.
</judges>
|
[
"951 F.2d 172"
] |
[
{
"author_str": "Per Curiam",
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": "http://bulk.resource.org/courts.gov/c/F2/951/951.F2d.172.91-1920.html",
"author_id": null,
"opinion_text": "951 F.2d 172\n Bogdan WOJCIK, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICES, Respondent.\n No. 91-1920.\n United States Court of Appeals,Eighth Circuit.\n Submitted Oct. 15, 1991.Decided Dec. 17, 1991.\n \n Herbert A. Igbanugo, Minneapolis, Minn., for petitioner.\n Karen Fletcher Torstenson, Washington, D.C. (Stuart M. Gerson and Robert Kendall, Jr., on brief), for respondent.\n Before BEAM and LOKEN, Circuit Judges, and HEANEY, Senior Circuit Judge.\n PER CURIAM.\n \n \n 1\n Bogdan Wojcik petitions for review of an Immigration and Naturalization Service (INS) order denying his request for asylum under Section 208 of the Immigration and Nationality Act, 8 U.S.C. § 1158. We affirm.\n \n \n 2\n Wojcik, born in Szczecin, Poland, was an active member of the Solidarity union between 1980 and 1987. He arrived in the United States in July 1987 as a crew member of a Polish vessel, left his ship, and stayed beyond the time authorized by the INS. The INS issued an order for Wojcik to show cause why he should not be deported. In response, Wojcik conceded he was deportable and requested asylum.\n \n \n 3\n At his initial hearing, Wojcik testified about his Solidarity participation, and his fear that, if he returned to Poland, he would be imprisoned for abandoning ship and for engaging in political activities. He introduced a February 1988 advisory opinion from the Department of State's Bureau of Human Rights and Humanitarian Affairs, stating that assuming the facts in his application were true, Wojcik had a well-founded fear of persecution in Poland. He also introduced a December 12, 1987 letter from his sister in Poland, indicating that the secret police had searched family members' homes looking for Wojcik's belongings, that they found Solidarity publications, and that he would receive a long prison sentence if he returned.\n \n \n 4\n In May 1988, the immigration judge denied Wojcik's request for asylum and withholding of deportation, finding that Wojcik had not been punished in the past for his Solidarity activities, that he did not present sufficient evidence to support a current fear of persecution, and that any anticipated punishment for jumping ship did not provide a legal basis for granting asylum.\n \n \n 5\n Wojcik appealed the decision to the Board of Immigration Appeals (BIA), arguing he had a well-founded fear of persecution which was corroborated by his sister's letter. The BIA, relying on newspaper articles, took administrative notice that \"effective September 10, 1989, the Solidarity organization formally entered into the coalition government which is presently governing Poland\"; that in December 1990, Lech Walesa was elected and sworn in as president of Poland; and that electoral reforms were projected. The BIA found that Wojcik no longer had a well-founded fear of persecution by the Polish government, and affirmed the decision denying Wojcik asylum.\n \n \n 6\n Under the Immigration and Nationality Act, the Attorney General has the discretion to grant asylum to \"refugees,\" 8 U.S.C. § 1158(a). A refugee is a person who is unable or unwilling to return to his home country \"because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion,\" 8 U.S.C. § 1101(a)(42)(A). The well-founded fear standard has both a subjective and an objective component:\n \n \n 7\n The subjective component requires that the [alien's] fear be genuine, while the objective component \"requires a showing by credible, direct and specific evidence ... of facts that would support a reasonable fear that the petitioner faces persecution.\"\n \n \n 8\n Rodriguez-Rivera v. INS, 848 F.2d 998, 1002 (9th Cir.1988) (emphasis in original). In this case, both the immigration judge and the BIA concluded that Wojcik had not established that he is a refugee, and therefore his request was denied without reaching the question whether the discretion to grant asylum should be exercised. In reaching its conclusion, the BIA expressly relied upon the recent, dramatic political changes in Poland, changes that have seen the Solidarity union, a renegade and at times illegal political organization when Wojcik first participated, rise to a legitimate and even leadership role in the Polish government.\n \n \n 9\n The BIA's use of administrative notice of the changed political conditions in Poland has been approved by two circuits. See Kapcia v. INS, 944 F.2d 702, at 707 (10th Cir.1991); Kaczmarczyk v. INS, 933 F.2d 588, 593-95 (7th Cir.), cert. denied, --- U.S. ----, 112 S. Ct. 583, 116 L. Ed. 2d 608 (1991). We agree with those decisions. In addition, We have carefully reviewed the entire record, and conclude there is substantial evidence to support the BIA's finding that Wojcik no longer has a well-founded fear of persecution by the Polish government on account of his Solidarity activities. See Kubon v. INS, 913 F.2d 386, 388 (7th Cir.1990).\n \n \n 10\n Accordingly, we affirm.\n \n ",
"ocr": false,
"opinion_id": 573199
}
] |
Eighth Circuit
|
Court of Appeals for the Eighth Circuit
|
F
|
USA, Federal
|
573,941 |
Beam, Per Curiam, Renner, Ross
| 1992-01-07 | false |
united-states-v-keith-lamonte-hill-aka-keith-lamont-hill-aka-michael
| null |
United States v. Keith Lamonte Hill, A/K/A Keith Lamont Hill, A/K/A Michael Lane Robinson
|
UNITED STATES of America, Appellee, v. Keith Lamonte HILL, A/K/A Keith Lamont Hill, A/K/A Michael Lane Robinson, Appellant
|
Richard McClain, Lincoln, Neb., for appellant., Alan Everett, Asst. U.S. Atty., Lincoln, Neb., for appellee.
| null | null | null | null | null | null | null |
Submitted June 24, 1991., Rehearing Denied Jan. 7, 1992.
| null | null | 4 |
Published
| null |
<parties id="b975-16">
UNITED STATES of America, Appellee, v. Keith Lamonte HILL, a/k/a Keith Lamont Hill, a/k/a Michael Lane Robinson, Appellant.
</parties><br><docketnumber id="b975-19">
No. 89-2833.
</docketnumber><br><court id="b975-20">
United States Court of Appeals, Eighth Circuit.
</court><br><otherdate id="b975-21">
Submitted June 24, 1991.
</otherdate><br><decisiondate id="b975-22">
Decided Dec. 5, 1991.
</decisiondate><br><otherdate id="b975-23">
Rehearing Denied Jan. 7, 1992.
</otherdate><br><attorneys id="b976-9">
<span citation-index="1" class="star-pagination" label="868">
*868
</span>
Richard McClain, Lincoln, Neb., for appellant.
</attorneys><br><attorneys id="b976-10">
Alan Everett, Asst. U.S. Atty., Lincoln, Neb., for appellee.
</attorneys><br><judges id="b976-11">
Before BEAM, Circuit Judge, ROSS, Senior Circuit Judge, and RENNER,
<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="b976-15">
The HONORABLE ROBERT G. RENNER, United States District Judge for the District of Minnesota, sitting by designation.
</p>
</div></div>
|
[
"951 F.2d 867"
] |
[
{
"author_str": "Per Curiam",
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": "http://bulk.resource.org/courts.gov/c/F2/951/951.F2d.867.89-2833.html",
"author_id": null,
"opinion_text": "951 F.2d 867\n UNITED STATES of America, Appellee,v.Keith Lamonte HILL, a/k/a Keith Lamont Hill, a/k/a MichaelLane Robinson, Appellant.\n No. 89-2833.\n United States Court of Appeals,Eighth Circuit.\n Submitted June 24, 1991.Decided Dec. 5, 1991.Rehearing Denied Jan. 7, 1992.\n \n Richard McClain, Lincoln, Neb., for appellant.\n Alan Everett, Asst. U.S. Atty., Lincoln, Neb., for appellee.\n Before BEAM, Circuit Judge, ROSS, Senior Circuit Judge, and RENNER,* District Judge.\n PER CURIAM.\n \n \n 1\n The Supreme Court --- U.S. ----, 111 S. Ct. 2845, 115 L. Ed. 2d 1014 has vacated our prior judgment in this case, United States v. Hill, 911 F.2d 129 (8th Cir.1990), and has remanded the case to us for further consideration in light of its recent decision in Burns v. United States, --- U.S. ----, 111 S. Ct. 2182, 115 L. Ed. 2d 123 (1991). In our previous decision we rejected Hill's argument that he did not receive sufficient notice of a possible upward departure from the sentencing guidelines, and accordingly, we affirmed Hill's conviction for interstate transportation of stolen property and his sentence of 84 months imprisonment.\n \n \n 2\n Subsequently, the Supreme Court held in Burns v. United States that before a district court can depart upward on a ground not previously identified as a ground for upward departure, the court must give the parties reasonable notice that it is contemplating such a ruling. This notice must specifically identify the grounds upon which the court is contemplating an upward departure. Id. 111 S.Ct. at 2187. The Burns Court held that Rule 32 of the Federal Rules of Criminal Procedure was not satisfied where the district court had decided on its own motion to upwardly depart from the guidelines, although the presentence report concluded that \"[t]here [were] no factors that would warrant departure from the guideline sentence.\" Id. at 2184.\n \n \n 3\n Burns is distinguishable from the case presently before us. Here, Hill received notice of a possible upward departure in the presentence report, which specified various grounds upon which that departure might be based. A hearing was then held during which Hill had an opportunity to address the possibility of an upward departure.\n \n \n 4\n We reject Hill's suggestion that Burns be expanded to require that the notice of the upward departure come from the district court itself. Burns specifically provides that the court must give notice of an upward departure only when the ground for upward departure is not identified in \"the presentence report or in a prehearing submission by the Government.\" Id. at 2187. Here, that notice was sufficiently provided in Hill's presentence report.\n \n \n 5\n In conclusion, we find that the notice of a possible upward departure in Hill's presentence report sufficiently satisfied the notice requirement under Burns. Accordingly, we affirm Hill's conviction and sentence.\n \n \n \n *\n The HONORABLE ROBERT G. RENNER, United States District Judge for the District of Minnesota, sitting by designation\n \n \n ",
"ocr": false,
"opinion_id": 573941
}
] |
Eighth Circuit
|
Court of Appeals for the Eighth Circuit
|
F
|
USA, Federal
|
1,593,756 | null | 2009-10-09 | false |
whitfield-v-state
|
Whitfield
|
Whitfield v. State
| null | null | null | null | null | null | null | null | null | null | null | null | 0 |
Published
| null | null |
[
"19 So. 3d 329"
] |
[
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": null,
"author_id": null,
"opinion_text": "\n19 So.3d 329 (2009)\nWHITFIELD\nv.\nSTATE.\nNo. 5D09-1599.\nDistrict Court of Appeal of Florida, Fifth District.\nOctober 9, 2009.\nDecision without published opinion affirmed.\n",
"ocr": false,
"opinion_id": 1593756
}
] |
District Court of Appeal of Florida
|
District Court of Appeal of Florida
|
SA
|
Florida, FL
|
37,435 | null | 2005-01-19 | false |
chembulk-trading-llc-v-chemex-ltd
| null |
Chembulk Trading LLC v. Chemex Ltd
| 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": 18,
"download_url": "http://www.ca5.uscourts.gov/opinions\\pub\\03/03-30598-CV0.wpd.pdf",
"author_id": null,
"opinion_text": " United States Court of Appeals\n Fifth Circuit\n F I L E D\n REVISED JANUARY 19, 2005\n IN THE UNITED STATES COURT OF APPEALS December 8, 2004\n\n FOR THE FIFTH CIRCUIT Charles R. Fulbruge III\n Clerk\n\n ____________________\n\n No. 03-30598\n ____________________\n\n\nCHEMBULK TRADING LLC\n Plaintiff - Appellee\n\nv.\n\nCHEMEX LTD\n Defendant\n_________________________________________________________________\n\nNOVOROSSIYSK SHIPPING COMPANY\n Plaintiff - Appellant\n\nv.\n\nCHEMEX LTD, Etc\n Defendant\n________________________________________________________________\n\n Appeal from the United States District Court\n for the Eastern District of Louisiana\n_________________________________________________________________\n\nBefore KING, Chief Judge, SMITH and EMILIO M. GARZA, Circuit\nJudges.\n\nKING, Chief Judge:\n\n The district court granted Defendant-Appellee Chembulk’s\n\nmotion for summary judgment, and Plaintiff-Appellant Novorossiysk\n\nappeals. For the following reasons, we REVERSE.\n\n I. BACKGROUND\n\n On May 30, 2001, Novorossiysk Shipping Co. (Novorossiysk)\n\fentered into a time-charter party1 with Chemex Ltd. (Chemex) to\n\ncharter its ship, the M/V Tuapse, to Chemex. The time-charter\n\nparty granted Novorossiysk a lien on “all cargoes and all\n\nfreights for any amounts due under this charter.” On August 29,\n\n2002, Chemex entered into a voyage-charter party2 with Westway\n\nTrading Co. (Westway) to subcharter the M/V Tuapse to Westway.\n\nIn return, Westway was to pay Chemex freight, ten percent of\n\nwhich was payable at the end of the voyage. In a separate\n\ntransaction on August 29, Chembulk Trading, Inc. (Chembulk)\n\nvoyage-chartered the M/V Chembulk Clipper to Chemex. Chemex\n\nfailed to pay both the full amount of hire and demurrage\n\n($500,000) it owed Novorossiysk and the freight ($147,000.01) and\n\ndemurrage ($36,449.65) it owed Chembulk.\n\n On October 1, 2002, Novorossiysk faxed a notice to Westway\n\nstating that it was exercising its right to a lien on “all\n\n\n 1\n A “time-charter” is a contract to hire a ship for a fixed\nperiod of time under which the shipowner or charterer is\ncompensated with hire. The quantity of cargo carried is usually\nirrelevant to the hire paid to the shipowner. Atl. Richfield Co.\nv. Good Hope Refineries, Inc., 604 F.2d 865, 871 (5th Cir. 1979);\nGRANT GILMORE & CHARLES L. BLACK, JR., THE LAW OF ADMIRALTY § 4-1 (2d ed.\n1975) [hereinafter GILMORE & BLACK]. Generally, a charter party is\na contract for the use of a ship that belongs to another. GILMORE\n& BLACK, § 4-1.\n 2\n A “voyage charter” is a contract to hire a ship for a\nspecific voyage or voyages under which the shipowner or charterer\nis compensated with freight. See Gulfgate Marine Transp. Co. v.\nDampskibsselskabet Svendborg, 10 F.3d 1190, 1192 n.3 (5th Cir.\n1994); Atl. Richfield Co., 604 F.2d at 871. The amount of freight\npaid is generally dependant on the amount of cargo actually loaded\nonto the vessel. Id.; GILMORE & BLACK, § 4-9.\n\n 2\n\ffreight and sub-freights” pursuant to the Novorossiysk-Chemex\n\ntime-charter party. Novorossiysk requested that Westway remit\n\nthe remaining ten-percent balance of freight (the “Westway\n\nFreight”), which Westway had not yet paid to Chemex, directly to\n\nNovorossiysk. On October 2, 2002, Chembulk sought a Writ of\n\nMaritime Attachment and Garnishment against the Westway Freight\n\npursuant to Rule B of the Supplemental Rules for Certain\n\nAdmiralty and Maritime Claims. On October 4, 2002, Novorossiysk\n\nalso sought a Writ of Maritime Attachment and Garnishment against\n\nthe Westway Freight.\n\n Both the Chembulk and Novorossiysk attachment suits were\n\nconsolidated. Westway then filed a complaint for interpleader,\n\nwhereupon the district court consolidated all three suits. The\n\ndistrict court granted Westway leave to deposit $31,533.55 (the\n\nfull amount of the Westway Freight) into the court’s registry,\n\ndischarged it from the lawsuit, and relieved it of all claims\n\nregarding that amount.\n\n On January 21, 2003, Chembulk moved to stay the consolidated\n\nproceedings pending arbitration of its claim against Chemex in\n\naccordance with an arbitration clause in the Chembulk-Chemex\n\nvoyage charter. Novorossiysk opposed Chembulk’s motion and\n\ncross-motioned for summary judgment, alleging that its lien-\n\nclaimant status gave it priority over Chembulk’s Rule B\n\nattachment. In response, Chembulk also moved for summary\n\njudgment, arguing that Novorossiysk did not have a maritime lien\n\n 3\n\fbut was merely a Rule B claimant whose claim was preempted by\n\nChembulk’s earlier Rule B attachment. Further, Chembulk argued\n\nthat even if Novorossiysk did have a lien, it could not assert\n\npriority in an in personam Rule B attachment proceeding since\n\nmaritime liens can only be asserted in in rem proceedings.\n\nSubsequently, the district court granted Novorossiysk leave to\n\namend its complaint to add an in rem claim to the Westway Freight\n\nunder Rule C of the Supplemental Rules for Certain Admiralty and\n\nMaritime Claims.\n\n On February 18, 2003, Chemex (and its managing agent,\n\nBrookwater) relinquished all rights to the Westway Freight.\n\nBased on that, the district court dismissed as moot Chembulk’s\n\nmotion to stay pending arbitration. Therefore, the sole issue\n\nbefore the court was whether Novorossiysk or Chembulk was\n\nentitled to the Westway Freight--i.e., whether Novorossiysk had a\n\nmaritime lien on the Westway Freight giving it priority over\n\nChembulk’s Rule B attachment. On March 31, 2003, the district\n\ncourt initially denied both parties’ motions for summary judgment\n\nso that Chembulk could respond to Novorossiysk’s in rem claim.\n\nHowever, the parties asked the court to decide the motion on the\n\nexisting record.\n\n On May 27, 2003, the district court granted Chembulk’s\n\nmotion for summary judgment. The district court found as a\n\nmatter of law that the Westway Freight was properly characterized\n\nas “subfreights” rather than “freights” because it represented\n\n 4\n\fthe amount that “Westway (a third party payor/subcharterer of the\n\nM/V TUAPSE) agreed to pay Chemex for the shipment of cargo.”\n\nChembulk Trading L.L.C. v. Chemex Ltd., 2003 A.M.C. 1441, 1445 (E.D.\n\nLa. 2003). Consequently, the district court concluded that the\n\nNovorossiysk-Chemex time-charter party did not give Novorossiysk\n\na maritime lien over the Westway Freight because it provided a\n\nlien on “all freights” and not “subfreights.” The district court\n\nthus treated the case as that of two competing Rule B attachments\n\nand, accordingly, held that Chembulk had priority since it was\n\nthe first to attach the Westway Freight.\n\n On June 11, 2003, the district court stayed the disbursement\n\nof the Westway Freight pending appeal. The issue before us on\n\nappeal is whether the language in the Novorossiysk-Chemex time\n\ncharter provided Novorossiysk with a valid maritime lien over the\n\nWestway Freight defeating Chembulk’s Rule B attachment.\n\n II. DISCUSSION\n\nA. Introduction\n\n The district court’s holding would certainly encourage\n\nprecision in drafting charter parties. Indeed, had the charter\n\nat hand specifically used the term “subfreights,” this whole\n\nlitigation could have been avoided. However, while the district\n\ncourt’s reasoning seems logical, in the absence of any meaningful\n\nevidence that the terms “freights” and “subfreights” are legally,\n\nor by custom and usage, mutually exclusive, we are bound by\n\n\n 5\n\fprinciples of contract interpretation under federal maritime law.\n\nWe therefore hold that the district court’s interpretation of the\n\n“all freights” language in the Novorossiysk-Chemex time charter\n\nwas erroneous as a matter of law.\n\nB. Standard of Review\n\n We review the district court’s grant of summary judgment de\n\nnovo, applying the same standards used by the district court.\n\nVulcan Materials Co. v. City of Tehuacana, 369 F.3d 882, 886 (5th\n\nCir. 2004). Summary judgment is proper when there is no genuine\n\nissue of material fact and the moving party is entitled to\n\njudgment as a matter of law. FED. R. CIV. P. 56(c); Vulcan\n\nMaterials Co., 369 F.3d at 886.\n\n We also review the district court’s legal conclusions de\n\nnovo. Triad Elec. & Controls, Inc. v. Power Sys. Eng’g, Inc.,\n\n117 F.3d 180, 186 (5th Cir. 1997). The interpretation of an\n\nunambiguous contract3 presents a question of law, and thus, it is\n\nsubject to our de novo review. Id. at 186; Exxon Corp. v.\n\nCrosby-Mississippi Res., Ltd., 40 F.3d 1474, 1481 (5th Cir. 1995)\n\n(per curiam). Therefore, we review the district court’s\n\ninterpretation of the “all freights” language in the\n\n 3\n Chembulk asserts, and Novorossiysk does not dispute, that\nthe Novorossiysk-Chemex time charter is unambiguous. The fact that\nNovorossiysk and Chembulk dispute the meaning of the term “all\nfreights” does not by itself make the charter ambiguous. See\nBroad v. Rockwell Int’l Corp., 642 F.2d 929, 948, 955 (5th Cir.\n1981) (en banc) (concluding that the district court correctly\ninterpreted an indenture as unambiguous even though the parties\ndisputed the construction of its terms).\n\n 6\n\fNovorossiysk-Chemex time charter de novo.\n\n C. Analysis\n\n Under general principles of maritime law, claimants with\n\nmaritime liens are entitled to preference and priority over\n\nattaching creditors. Triton Container Int’l, Ltd v. Baltic\n\nShipping Co., 1995 A.M.C. 2963, 2965-67 (E.D. La. 1995). As between\n\ntwo Rule B attaching creditors, however, the first to attach has\n\npriority. Id. at 2969. Therefore, as the district court noted,\n\nif Novorossiysk has a valid maritime lien over the Westway\n\nFreight, its claim takes priority over Chembulk’s Rule B\n\nattachment. If Novorossiysk does not have a lien, then\n\nChembulk’s claim takes priority because Chembulk was the first\n\nattaching creditor.\n\n Shipowners, as a general rule, have a lien upon the cargo\n\nowned by the charterer for compensation not yet paid. See Bird\n\nof Paradise, 72 U.S. 545, 554 (1866); Arochem Corp. v. Wilomi,\n\nInc., 962 F.2d 496, 499 (5th Cir. 1992). Accordingly,\n\nNovorossiysk would traditionally have a lien on any cargo owned\n\nby Chemex for any hire or demurrage Chemex owed to Novorossiysk.\n\nIn contrast, when the cargo is not owned by the charterer, a\n\nshipowner generally does not have a lien on the cargo. See\n\nFinora Co., Inc v. Amitie Shipping, Ltd., 54 F.3d 209, 213 (4th\n\nCir. 1995). The charter between the shipowner and the charterer,\n\nhowever, may provide for a lien on any freights owed by the cargo\n\n\n\n 7\n\fowner to the charterer. Id. Indeed, “[t]wo general conditions\n\nare necessary for a shipowner to maintain a lien against such a\n\nthird person. First, the shipowner must have a contractual right\n\nto assert the lien; second, the shipowner must properly perfect\n\nthe lien.” Biehl & Co., Inc. v. Apollonia Holding, Inc., 693 F.\n\nSupp. 457, 465 (E.D. La. 1988); accord Toro Shipping Corp. v.\n\nBacon-McMillan Veneer Mfg. Co., 364 F.2d 928, 930 (5th Cir.\n\n1966). Novorossiysk states, and Chembulk does not dispute, that\n\nNovorossiysk perfected whatever lien rights it had by faxing\n\nnotice of its lien to Westway on October 1, 2002.4 We therefore\n\nturn to whether Novorossiysk had a contractual right to assert a\n\nlien against the Westway Freight.\n\n A shipowner’s contractual right to assert a lien against\n\nfreight owed by a third party arises by an express provision in\n\nthe charter party granting the shipowner a lien on such freight.\n\nMarine Traders, Inc. v. Seasons Navigation Corp., 422 F.2d 804,\n\n806 (2d Cir. 1970). The lien provision, as it appears in most\n\nform charters, is usually phrased as: “the owners [meaning the\n\nowners of the vessel] shall have a lien upon all cargoes and all\n\n\n 4\n At oral argument, Chembulk asserted that it argued in its\nbrief that Novorossiysk did not meet the notice element. However,\nin its brief, Chembulk only disputed the notice requirement as to\nNovorossiysk’s lien-on-cargo argument, not Novorossiysk’s lien-on-\nsubfreights argument. Specifically, Chembulk argued in its brief\nthat the letter Novorossiysk sent to Westway did not give notice\nbecause it did not assert a lien on cargo, but only on “freights”\nand “subfreights.” Accordingly, the parties are not in dispute as\nto the notice required to assert a lien on subfreight.\n\n 8\n\fsubfreight for charter money due under this charter.\" Am. Steel\n\nBarge Co. v. Chesapeake & O. Coal Agency Co., 115 F. 669, 671\n\n(1st Cir. 1902) (emphasis added) (alteration in original); see\n\nalso United States v. Freights, Etc., of S.S. Mount Shasta, 274\n\nU.S. 466, 469 (1927); Toro Shipping Corp., 364 F.2d at 929;\n\nCornish Shipping Ltd. v. Int’l Nederlanden Bank N.V., 53 F.3d\n\n499, 500 (2d Cir. 1995). On the other hand, the lien clause in\n\nthe Novorossiysk-Chemex time charter provides that “[o]wners\n\nshall have a lien upon all cargoes and all freights for any\n\namounts due under this charter.” (emphasis added). The issue\n\nbefore us is one of contractual interpretation--whether the term\n\n“all freights” is sufficiently explicit to grant a contractual\n\nright to assert a lien over freight owed by a third party (i.e.,\n\nsubfreight), specifically, the Westway Freight.\n\n A basic principle of contract interpretation in admiralty\n\nlaw is to interpret, to the extent possible, all the terms in a\n\ncontract without rendering any of them meaningless or\n\nsuperfluous. Foster Wheeler Energy Corp. v. An Ning Jiang MV,\n\n03-30038, 2004 WL 1905297, at *3 (5th Cir. Sept. 13, 2004);\n\nCapozziello v. Brasileiro, 443 F.2d 1155, 1159 (2d Cir. 1971).\n\nFreight is the compensation paid under a voyage charter for the\n\nuse of a ship to carry goods. Kimball, 70 U.S. at 44-45. Hence,\n\nwe could construe “all freights” to provide a lien on the\n\ncompensation Novorossiysk was being paid for chartering its ship\n\nto Chemex. This interpretation, however, would basically give\n\n 9\n\fNovorossiysk a lien on the compensation it was owed--effectively\n\nsecuring the debt with the debt itself. Interpreting the term\n\n“all freights” in this way, therefore, would render it\n\nmeaningless and superfluous because it is useless to assert a\n\nsecurity interest in the very debt owed.5 Unless there is no\n\nalternative, a clause should not be interpreted such that it is\n\nrendered meaningless. Capozziello, 443 F.2d at 1159.6\n\n The alternative, and more viable interpretation, is that the\n\nterm “all freights” provides Novorossiysk with a lien on the\n\ncompensation Chemex was being paid to ship Westway’s goods--the\n\nWestway Freight. This interpretation has the virtue of not\n\nrendering the term “all freights” meaningless or superfluous and\n\n\n\n\n 5\n Moreover, as discussed above, under the terms of the\nNovorossiysk-Chemex time-charter party, Novorossiysk earned “hire,”\nnot “freight.” Thus, the term “all freights,” in the context of\nthis particular time charter, would not normally be construed to\nrefer to the compensation Novorossiysk was to receive thereunder.\n 6\n Chembulk argues that the Novorossiysk-Chemex time charter\nshould be construed against Novorossiysk, and thus since\nNovorossiysk did not include the term “subfreights,” it should not\nhave a lien on the Westway Freight. That argument, however, is\nunavailing. A contract is construed against the drafting party\nonly when it is ambiguous. See Empire Fire & Marine Ins. Co. v.\nBrantley Trucking, Inc., 220 F.3d 679, 681 (5th Cir. 2000). The\nNovorossiysk-Chemex time charter, however, is not ambiguous because\nits language as a whole is clear, explicit, and leads to no absurd\nconsequences, and as such it can be given only one reasonable\ninterpretation. See Mobil Exploration & Producing v. A-Z/Grant\nInt'l Co., 1993 A.M.C. 1137 (E.D. La. 1992) (citing Nat’l Union Fire\nIns. Co. v. Circle, Inc., 915 F.2d 986, 989 (5th Cir. 1990) (per\ncuriam)). Therefore, we do not construe the time charter against\nNovorossiysk.\n\n 10\n\fis consistent with the definition of “freight.”7\n\n Moreover, the definition of “subfreights” leads us to the\n\nconclusion that the phrase “all freights” could properly include\n\n“subfreights.” “Subfreights” has been defined in many different\n\nways, but essentially it is the compensation paid to someone\n\nother than a shipowner for the carriage of goods or the hire of a\n\nship. Cornish Shipping Ltd., 53 F.3d at 500 n.1 (defining\n\n“subfreights” as “amounts that third-party payors . . . contract\n\nto pay directly to the charterer for the hire of the ship or the\n\ntransport of goods” (emphasis added)); Am. Steel Barge Co., 115\n\nF. at 672 (“‘subfreights’ . . . embraces all freights which a\n\ncharterer stipulates to receive for the carriage of goods”\n\n(emphasis added)); ERIC SULLIVAN, MARINE ENCYCLOPAEDIC DICTIONARY 413\n\n(2d ed. 1988) [hereinafter SULLIVAN] (“[f]reight payable by the\n\nsub-contractor, normally to the charterer” (emphasis added)).\n\nThus, the person paying the compensation (or subfreight) is not a\n\nparty to the shipowner-charterer transaction but is, rather, a\n\nparty to a subsequent transaction with the charterer.\n\nNevertheless, both freight and subfreight are the compensation\n\nearned for the carriage of goods, and the only difference between\n\n 7\n Chembulk argues that the clause is not meaningless\nbecause it was included to secure a lien on cargo for freight.\nHowever, the language in the time charter makes clear that the\nclause attempts to provide a lien on “all cargoes and all freights\nfor any amounts due under this charter.” (emphasis added). Thus,\nas this particular clause is structured and worded, it explicitly\nprovides a lien on all freights payable, not simply a lien on the\ncargo for the freight owed.\n\n 11\n\fthe two is that freight is a more general term describing\n\ncompensation payable, whereas subfreight is compensation payable\n\nto someone other than the shipowner. See Toro Shipping Corp.,\n\n364 F.2d at 929; Am. Steel Barge Co., 115 F. at 672; Cornish\n\nShipping Ltd., 53 F.3d at 500 n.1; SULLIVAN, at 413.\n\n We acknowledge that the term “subfreights” is commonly used\n\nin charters to provide a lien over freights owed by a third party\n\n(subfreight). See generally Freights, Etc., of S.S. Mount\n\nShasta, 274 U.S. at 469; Toro Shipping Corp., 364 F.2d at 929;\n\nCornish Shipping Ltd., 53 F.3d at 500 (analyzing charters\n\ncontaining the term “subfreights”). We also recognize that many\n\ncourts use the term “subfreights” when referring to amounts owed\n\nby a third party to a charterer. See Freights, Etc., of S.S.\n\nMount Shasta, 274 U.S. at 466; Toro Shipping Corp., 364 F.2d at\n\n928; Cornish Shipping Ltd., 53 F.3d at 499. It does not follow,\n\nhowever, that the term “subfreight” is, by custom and usage, the\n\nonly way to refer to compensation owed by a third party to a\n\ncharterer.\n\n In addition to the charter at hand, there are other charters\n\nwhich use the term “all freights” in their lien clauses. See 2C\n\nBENEDICT ON ADMIRALTY 17-66.10, 17-80.15 (7th ed., rev. 1974)\n\n(displaying the Gastime and Intertanktime 80 form time charters,\n\nboth of which provide a lien upon cargoes “and all freights for\n\nany amounts due under this Charter”). Moreover, many courts, in\n\nthis circuit and others, have regularly used the terms “freight”\n\n 12\n\fand “subfreight” interchangeably. Toro Shipping Corp., 364 F.2d\n\nat 929 (“[t]he District Court found that [the third party] had\n\npaid the full price of the cargo and freight”) (emphasis added));\n\nsee also Cornish Shipping Ltd., 53 F.3d at 502 (“the shipowner[]\n\ngave notice to . . . the consignee[] that it was exercising its\n\nlien before [the consignee] took the final steps necessary to\n\nauthorize payment of ‘freight’ charges to . . . the charterer[].”\n\n(emphasis added)); Tarstar Shipping Co. v. Century Shipline,\n\nLtd., 597 F.2d 837, 838 (2d Cir. 1979) (“the charter party\n\nprovided ‘(t)hat the Owners shall have a lien upon all cargoes,\n\nand all subfreights for any amounts due under this Charter . . .\n\n.’ [The charterer] defaulted on the second hire payment . . . .\n\nThis event triggered [the shipowner’s] attempt to enforce its\n\ncontractual lien on the freights” (first and second alterations\n\nin original) (emphasis added)); Union Industrielle Et Maritime v.\n\nNimpex Int’l, Inc., 459 F.2d 926, 930 (7th Cir. 1972) (“[p]ayment\n\nby [sub-charterer] to [charterer] before the lien arose,\n\nextinguished all claims by [shipowner] to any freights related to\n\nthis cargo.” (emphasis added)). Even the Supreme Court has used\n\nthe terms “freights” and “subfreights” interchangeably. Freights\n\nof S.S. Mount Shasta, 274 U.S. at 470-71 (“[I]f it be conceded\n\nthat the Admiralty Court has jurisdiction to enforce a lien on\n\nsub-freights by a proceeding in rem . . . we do not perceive how\n\nthe Court can be deprived of jurisdiction merely by an answer\n\ndenying that such freights are due.”). Therefore, we conclude\n\n 13\n\fthat the term “subfreights” has not become, by custom and usage,\n\nthe only way to refer to compensation payable by a third party to\n\na charterer.8\n\n We therefore hold, as a matter of interpretation of the\n\nNovorossiysk-Chemex time-charter party, that a lien on “all\n\nfreights” is sufficiently explicit to provide a lien on\n\nsubfreights. That interpretation of the charter party is\n\ncompelled by the fact that it provides the only way to give\n\nmeaning to the term “all freights” in the charter party.\n\nAccordingly, Novorossiysk has a valid maritime lien over the\n\nWestway Freight pursuant to the “all freights” language in the\n\nNovorossiysk-Chemex time charter. Novorossiysk’s lien therefore\n\ntakes priority over Chembulk’s Rule B attachment.9\n\n III. Conclusion\n\n We therefore REVERSE the judgment of the district court\n\ndenying Novorossiysk’s motion for summary judgment and granting\n\nChembulk’s motion for summary judgment, and we REMAND for further\n\nproceedings not inconsistent with this opinion.\n\n 8\n The term “freight” has many meanings depending on the\ncontext in which it is used: “[t]he word freight, when not used in\na sense to imply the burden or loading of the ship, or the cargo\nwhich she has on board, is the hire agreed upon between the owner\nor master for the carriage of goods from one port or place to\nanother.” Brittan v. Barnaby, 62 U.S. 527, 533 (1858).\n 9\n Novorossiysk also argued on appeal that it had a lien on\nthe cargo for the Westway Freight pursuant to the “all cargoes”\nlanguage in the Novorossiysk-Chemex time charter. We do not\nconsider this argument, however, since we find in favor of\nNovorossiysk based on the “all freights” language.\n\n 14\n\fENDRECORD\n\n\n\n\n 15\n\fGARZA, Circuit Judge, dissenting:\n\n The majority opinion holds that the term “all freights” must\n\nbe construed to include “subfreights” based on the “the\n\nprinciples of contract interpretation under federal maritime\n\nlaw.”\n\nHowever, in doing so, the majority violates the basic “canon of\n\ncontractual interpretation that requires words and phrases in a\n\ncontract to be given their plain meanings.” Cleere Drilling Co.\n\nv. Dominion Exploration & Production, Inc.351 F.3d 642 (5th Cir.\n\n2003). There is no dispute that the terms freight and\n\nsubfreights have very specific and distinct meanings in the\n\ncontext of admiralty contracts. Indeed, the majority\n\nacknowledges this distinction finding that “the term\n\n‘subfreights’ is commonly used in charters to provide a lien over\n\nfreights owed by a third-party.”\n\n Nevertheless, the majority seeks to expand the definition,\n\nand ultimately redefine, the term “all freights” so that the term\n\nis not rendered superfluous. In the process, the majority is\n\nrejecting established caselaw from other circuits spanning the\n\npast century. See Cornish Shipping Ltd. v. Int'l Nederlanden\n\nBank N.V., 53 F.3d 499, 502 (2d Cir.1995) (citing Marine Traders,\n\nInc. v. Seasons Navigation Corp., 422 F.2d 804, 806 (2d Cir.1970)\n\n(“To secure payments of freight due from a charterer of its ship,\n\na shipowner may create, by express provision in the charter\n\nparty, a lien on the subfreights earned by the vessel.”)\n\f(emphasis added); and Am. Steel Barge Co. v. Chesapeake & O.\n\nCoal Agency Co., 115 F. 669, 672 (1st Cir. 1902) (“it cannot\n\nreasonably be questioned that ‘subfreights,’ which is an\n\nexpression in common use and easily understood, embraces all\n\nfreights which a charterer stipulates to receive for the carriage\n\nof goods.”). The majority also ignores the fundamental rule of\n\ncontract interpretation that requires us to look to the intent of\n\nthe parties “at the time of entering into the contract regardless\n\nof any events occurring afterward.” 17 AM JUR. 2D Contracts § 345\n\n(2004). Here, the majority has determined that the term “all\n\nfreights” in fact refers to the freight promised under the\n\ncharter between Westway and Chemex. However, there is no\n\nevidence in the record that the Westway charter existed or was\n\neven contemplated of at the time Novorossiysk entered into its\n\ncharter with Chemex. Unless Novorossiysk had knowledge of this\n\nfuture charter, I find it difficult to see how the majority’s\n\ndecision can be a “more viable interpretation” of the contract.\n\n This is a case involving a simple contractual error for\n\nwhich there is no judicial recourse. Novorossiysk was well\n\naware at the time it entered into the charter with Chemex of the\n\nclear distinction between freights and subfreights. If it\n\nwanted to exercise a lien over the freight promised by Westway,\n\nNovorossiysk could (and arguably should) have expressly stated so\n\nin its contract. For whatever reason, it chose not to avail\n\n\n 17\n\fitself of this opportunity and, instead of taking responsibility\n\nfor its clear error, has sought savior through judicial\n\nintervention. Indeed, it is disingenuous for Novorossiysk to\n\nargue that the term “all freights” is broad enough to include\n\n“subfreights” when it specifically stated in its notice to\n\nWestway that it was exercising its right to a lien on “all\n\nfreight and sub-freights.” Clearly, if Novorossiysk truly\n\nbelieved that the term “all freights” was broad enough to include\n\n“subfreights”, it would not have felt compelled to specify in its\n\nnotice of its lien on the subfreight owed by Westway.\n\n The majority agrees that the district court’s holding would\n\nencourage “precision in drafting charter parties” but then\n\nsubsequently rejects this contention with its holding. I\n\nbelieve, however, such diligence is not an unreasonable\n\nexpectation. To rule otherwise would encourage parties to draft\n\ntheir contracts riddled with errors with the knowledge that the\n\ncourt will step in and correct any problems that ensue as result\n\nof sloppy drafting. Unfortunately, it is not the responsibility\n\nof the courts to save parties from their mistakes and any\n\nindication otherwise should be clearly avoided. Accordingly, I\n\nrespectfully DISSENT.\n\n\n\n\n 18\n\f",
"ocr": false,
"opinion_id": 37435
}
] |
Fifth Circuit
|
Court of Appeals for the Fifth Circuit
|
F
|
USA, Federal
|
452,340 | null | 1985-05-10 | false |
bernard-v-maclin
|
Bernard
|
Bernard v. MacLin
| null | null | null | null | null | null | null | null | null | null | null | null | 0 |
Published
| null | null |
[
"762 F.2d 997"
] |
[
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": "http://bulk.resource.org/courts.gov/c/F2/762/762.F2d.997.84-6798.html",
"author_id": null,
"opinion_text": "762 F.2d 997\n Bernardv.Maclin\n 84-6798\n United States Court of Appeals,Fourth Circuit.\n 5/10/85\n \n 1\n E.D.Va.\n \n AFFIRMED\n ",
"ocr": false,
"opinion_id": 452340
}
] |
Fourth Circuit
|
Court of Appeals for the Fourth Circuit
|
F
|
USA, Federal
|
2,557,809 | null | 2007-04-03 | false |
villatoro-v-ambassador-apartments-inc
|
VILLATORO
|
VILLATORO v. Ambassador Apartments, Inc.
|
Bryant Villatoro Et Al., Respondents, v. Ambassador Apartments, Inc., Et Al., Appellants, Et Al., Respondent
| null | null | null | null | null | null | null | null |
Submitted February 13, 2007;
| null | null | 1 |
Published
| null |
<parties id="b971-8">
Bryant Villatoro et al., Respondents, v Ambassador Apartments, Inc., et al., Appellants, et al., Respondent.
</parties><br><otherdate id="b971-9">
Submitted February 13, 2007;
</otherdate><decisiondate id="AlCY">
decided April 3, 2007
</decisiondate>
|
[
"8 N.Y.3d 937"
] |
[
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": null,
"author_id": null,
"opinion_text": "\n8 N.Y.3d 937 (2007)\nBRYANT VILLATORO et al., Respondents,\nv.\nAMBASSADOR APARTMENTS, INC., et al., Appellants, et al., Respondent.\nCourt of Appeals of the State of New York.\nSubmitted February 13, 2007.\nDecided April 3, 2007.\nMotion by Alfred S. Friedman Management Corp. for leave to appeal dismissed upon the ground that as to said appellant the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion by Ambassador Apartments, Inc. for leave to appeal denied.\n",
"ocr": false,
"opinion_id": 2557809
}
] |
New York Court of Appeals
|
New York Court of Appeals
|
S
|
New York, NY
|
2,359,137 | null | 2010-12-23 | false |
state-v-mace
|
MacE
|
State v. MacE
| null | null | null | null | null | null | null | null | null | null | null | null | 0 |
Published
| null | null |
[
"243 P.3d 1114"
] |
[
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": null,
"author_id": null,
"opinion_text": "\n243 P.3d 1114 (2010)\nSTATE\nv.\nMACE.\nNos. 104334, 104336, 104337.\nCourt of Appeals of Kansas.\nDecember 23, 2010.\n\nDecision Without Published Opinion\nAffirmed.\n",
"ocr": false,
"opinion_id": 2359137
}
] |
Court of Appeals of Kansas
|
Court of Appeals of Kansas
|
SA
|
Kansas, KS
|
1,080,379 |
Judge John Everett Williams
| 2000-02-10 | false |
state-v-john-m-johnson
| null |
State v. John M. Johnson
| 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": 5,
"download_url": "http://www.tsc.state.tn.us/sites/default/files/OPINIONS/tcca/PDF/001/Johnsonjm.pdf",
"author_id": 8294,
"opinion_text": " IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE\n\n AT JACKSON\n\n DECEMBER 1999 SESSION\n FILED\n February 10, 2000\n Cecil Crowson, Jr.\n Appellate Court Clerk\nJOHN MALCOLM JOHNSON, * C.C.A. No. W1999-00679-CCA-R3-PC\n\n Appellant, * TIPTON COUNTY\n\nVS. * Joseph H. Walker, III, Judge\nSTATE OF TENNESSEE, * (Post-Conviction Relief)\n\n Appellee. *\n\n\n\nFOR THE APPELLANT: FOR THE APPELLEE:\n\nFRANK DESLAURIERS PAUL G. SUMMERS\nP. O. Box 1156 Attorney General & Reporter\nCovington, TN 38019\n KIM R. HELPER\n Assistant Attorney General\n 425 Fifth Avenue North\n Nashville, TN 37243-0493\n\n ELIZABETH T. RICE\n District Attorney General\n\n DEBORAH ALSUP\n Assistant District Attorney\n P. O. Box 790\n Somerville, TN 38068-0790\n\n\n\n\nOPINION FILED: _______________\n\n AFFIRMED\nJOHN EVERETT WILLIAMS,\nJudge\n\n\n\n OPINION\n\n\n INTRODUCTION\n\n\n The petitioner, John Malcolm Johnson, appeals from the trial court’s order,\n\nentered after a hearing, denying his petition for post-conviction relief. The petitioner\n\nwas convicted of one count of rape of a child by a Tipton County jury. He was\n\fsentenced as a Range I Offender to 15 years in the Department of Correction. On\n\ndirect appeal, his conviction was affirmed. At post-conviction, he now argues that\n\nhe received ineffective assistance of counsel at trial and therefore seeks a new trial.\nAfter careful review, we AFFIRM the denial of the trial court.\n\n\n BACKGROUND\n\n\n For the purposes of this appeal, we set forth the facts as outlined by the\npetitioner. On the morning of November 9, 1996, the petitioner’s wife saw her 11\n\nyear old daughter “straddling” her nude husband in the living room of their house.\n\nShe was “straddling” the petitioner’s feet and was not wearing underwear. The\npetitioner’s penis was partially erect and, according to the wife, “looked like [it] had\n\nslipped out of her.”\n\n\n\n Investigating the wife’s report, Officer Gamblin of the Covington Police\n\nDepartment questioned the petitioner on November 11, 1996. The petitioner during\n\nthis questioning admitted to being with his daughter on the couch undressed but\n\ndenied any act of penetration.\n\n\n\n The petitioner’s wife and the victim gave statements to the police; their\n\nstatements were inconsistent with those of the petitioner. At trial, the daughter\n\ntestified that the petitioner’s penis was “a little bit” inside her vagina. On the basis\nof her testimony, that of the wife, and certain admissions of the petitioner, the jury\n\nconvicted the petitioner of one count of rape of a child.\n\n\n\n In the instant appeal, the petitioner argues that at this trial, his counsel was\n\nineffective in failing to call a certain witness, Nurse Sandra Anderson of the\n\nMemphis Sexual Assault Resource Center. Anderson examined the victim\n\napproximately two days after the incident. She found evidence of tears in the\nvictim’s hymenal lumen, consistent with some form of penetration. When taking the\n\ndaughter’s history, Anderson noted that according to the mother, the daughter had\n\nstated that the petitioner digitally penetrated her and did not mention his penis.\n\n\n\n\n -2-\n\f Anderson, however, did not testify at trial. Defense counsel failed to\n\nsubpoena her; instead, counsel was relying on the state’s subpoena of Anderson.\n\nThis reliance proved misplaced when the state released Anderson without having\ncalled her. On this basis, the petitioner alleged ineffective assistance of counsel at\n\npost-conviction.\n\n\n\n The post-conviction court conducted a hearing on this claim and heard the\n\ntestimony of Anderson, consistent with that described above, and the testimony of\n\nthe petitioner’s trial counsel, David Stockton. Counsel testified that Anderson’s\ntestimony would have been crucial in impeaching the testimony and credibility of the\n\ndaughter.\n\n\n\n After hearing this testimony, the trial court denied the petition, stating that the\n\nproof was clear and convincing that “trial counsel properly investigated the case,\n\nconferred with petitioner, adequately prepared for trial, and was competent through\n\nall stages of the trial.” From this ruling, the petitioner now appeals.\n\n\n ANALYSIS\n\n\n The petitioner asserts that he received ineffective assistance at trial;\n\nspecifically, he alleges that trial counsel was ineffective in failing to subpoena and\n\ncall Nurse Anderson. This Court reviews a claim of ineffective assistance of\ncounsel under the standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and\n\nStrickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). The petitioner has\n\nthe burden to prove that (1) the attorney’s performance was deficient, and (2) the\ndeficient performance resulted in prejudice to the petitioner so as to deprive him of\n\na fair trial. See Strickland at 687, 104 S.Ct. at 2064; Goad v. State, 938 S.W.2d\n\n363, 369 (Tenn. 1996); Overton v. State, 874 S.W.2d 6, 11 (Tenn. 1994); Butler v.\n\nState, 789 S.W.2d 898, 899 (Tenn. 1990).\n\n\n In Tennessee, the test for determining whether counsel provided effective\n\nassistance is whether his performance was within the range of competence\ndemanded of attorneys in criminal cases. See Baxter, 523 S.W.2d at 936. The\n\npetitioner must overcome the presumption that counsel’s conduct falls within the\n\n\n -3-\n\fwide range of acceptable professional assistance. Strickland, 466 U.S. at 689,\n\n104 S.Ct. at 2065; Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998);\n\nAlley v. State, 958 S.W.2d 138, 149 (Tenn. Crim. App. 1997). Therefore, in order\nto prove a deficiency, a petitioner must show that counsel’s acts or omissions were\n\nso serious as to fall below an objective standard of reasonableness under prevailing\n\nprofessional norms. Strickland, 466 U.S. at 688, 104 S.Ct. at 2065; Henley v. State,\n\n960 S.W.2d 572, 579 (Tenn. 1997); Goad, 938 S.W.2d at 369.\n\n\n\n In reviewing counsel’s conduct, a “fair assessment . . . requires that every\neffort be made to eliminate the distorting effects of hindsight, to reconstruct the\n\ncircumstances of counsel’s challenged conduct, and to evaluate the conduct from\n\ncounsel’s perspective at the time.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.\n\nThe fact that a particular strategy or tactic failed or hurt the defense does not,\n\nstanding alone, establish unreasonable representation. However, deference to\n\nmatters of strategy and tactical choices applies only if the choices are informed\n\nones based upon adequate preparation. See Goad, 938 S.W.2d at 369; Hellard v.\n\nState, 629 S.W.2d 4, 9 (Tenn. 1982); Alley, 958 S.W.2d at 149; Cooper v. State,\n\n847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).\n\n\n\n Assuming arguendo that trial counsel’s failure to subpoena a “crucial” witness\nwas ineffective, we review for prejudice. In this case, the petitioner’s theory is that\n\nthe testimony of Anderson, while consistent with reports of penetration and\n\nconsistent with the convicted offense,1” would nevertheless have proven powerful\nin undermining the credibility of the victim and thus in casting doubt in the minds of\n\nthe jurors.” This Court acknowledges that the credibility of the victim is an essential\n\nelement of this case; however, we are unpersuaded by the petitioner’s argument\nand find no prejudice sufficient for reversal.\n\n\n\n Read in any light, Anderson’s testimony is consistent with the state’s theory\n\nof the case. She testified to evidence of penetration, and Anderson’s recorded\nhistory reports that such penetration was caused by the petitioner. The fact that\n\ndigital, and not penile, penetration was reported in her notes is not cause for\n\n\n 1\n See Tenn. Code A nn. § 39-13-522, -501(7).\n\n -4-\n\fdisbelieving the testimony of the victim. However, beyond this one discrepancy, the\n\npetitioner can claim no value in Anderson’s testimony. In fact, Anderson’s notes do\n\nreflect that the victim’s mother said that it looked like her husband was having sex\nwith the victim. Whatever the case, her testimony, taken as a whole, clearly\n\nsupports the state’s case. Whatever impeachment value the petitioner perceives\n\ntherein is, at best, minimal and certainly does not rise to the level contemplated by\nStrickland and required for reversal.\n\n\n CONCLUSION\n\n\n Accordingly, we AFFIRM the trial court’s order denying the petition for post-\nconviction relief.\n\n\n\n\n _______________________________\n JOHN EVERETT W ILLIAMS, Judge\n\n\nCONCUR:\n\n\n\n\n_______________________________\nGARY R. WADE, Presiding Judge\n\n\n\n\n_______________________________\nNORMA McGEE OGLE, Judge\n\n\n\n\n -5-\n\f",
"ocr": false,
"opinion_id": 1080379
}
] |
Court of Criminal Appeals of Tennessee
|
Court of Criminal Appeals of Tennessee
|
SA
|
Tennessee, TN
|
846,974 |
Markman
| 2006-02-03 | false |
farm-bureau-general-insurance-company-of-michigan-v-haller
|
Haller
|
FARM BUREAU GENERAL INSURANCE COMPANY OF MICHIGAN v. Haller
| null | null | null | null | null | null | null | null | null | null | null | null | 1 |
Published
| null | null |
[
"708 N.W.2d 446",
"474 Mich. 1057"
] |
[
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": 2,
"download_url": "http://publicdocs.courts.mi.gov:81/SCT/PUBLIC/ORDERS/20060203_S128841_44_128841_2006-02-03_or.pdf",
"author_id": 4787,
"opinion_text": "\n708 N.W.2d 446 (2006)\n474 Mich. 1057\nFARM BUREAU GENERAL INSURANCE COMPANY OF MICHIGAN, Plaintiff-Appellant,\nv.\nJeffrey HALLER, an individual d/b/a H & H Poured Walls, Defendant, and\nBradley V. Dinnan, Defendant-Appellee.\nDocket No. 128841, COA No. 250272.\nSupreme Court of Michigan.\nFebruary 3, 2006.\nOn order of the Court, the application for leave to appeal the April 26, 2005 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.\nMARKMAN, J., dissents and states as follows:\nJeffrey Haller purposely struck Bradley Dinnan with his truck and as a result was convicted of assault. Dinnan sued Haller, who is insured by plaintiff. Plaintiff brought this action for a declaratory judgment, *447 seeking a determination that it had no duty to defend or to indemnify given the criminal act exclusion contained in its policy. The trial court ruled in favor of Haller, concluding that the exclusion contravened the mandatory coverage requirements of the no-fault act, and the Court of Appeals affirmed.\nThe insurance policy at issue states that coverage for bodily injury and property damage arising out of a criminal act is excluded. The issue here is whether this exclusion contravenes the mandatory coverage requirements of the no-fault act.\nMCL 500.3009(1) provides that an automobile insurance policy must cover at least $20,000 worth of bodily injury liability in \"any 1 accident,\" and MCL 500.3131(2) states that it does \"not require coverage in this state other than that required by section 3009(1).\" (Emphasis added.) Therefore, the no-fault act arguably covers accidents and nothing other than accidents. In this case, Haller was convicted of assault a crime that cannot be committed accidentally. Therefore, I question whether coverage under these circumstances is mandatory.\nAs this Court stated in Kreiner v. Fischer, 471 Mich. 109, 114, 683 N.W.2d 611 (2004), \"with the enactment of the no-fault act, 1972 PA 294, effective October 1, 1973, the Legislature abolished tort liability generally in motor vehicle accident cases and replaced it with a regime that established that a person injured in such an accident is entitled to certain economic compensation from his own insurance company regardless of fault.\" MCL 500.3135(3)(a) provides that tort liability arising from the use of a motor vehicle is abolished except as to \"[i]ntentionally caused harm to persons or property.\" Tort liability remains where one intentionally causes harm to persons or property.\nEven assuming that no-fault liability coverage is required under these circumstances, I question whether plaintiff is required to pay the full contractual amount ($300,000), as the Court of Appeals held, rather than the statutory minimum ($20,000). The policy at issue specifically states, \"Terms of this policy which are in conflict with the statutes of the state ... are amended to conform to such statutes.\" If coverage is required, it would only seem to be required in the amount of $20,000. See also State Farm Mut. Automobile Ins. Co. v. Shelly, 394 Mich. 448, 231 N.W.2d 641 (1975); Citizens Ins. Co. of America v. Federated Mut. Ins. Co., 448 Mich. 225, 531 N.W.2d 138 (1995) (holding that the statutory minimum coverage applies when a policy exclusion has been struck down under the no-fault act).\nBecause, in my judgment, these questions are significant, I would grant leave to appeal.\nTAYLOR, C.J., joins the statement of MARKMAN, J.\n",
"ocr": false,
"opinion_id": 846974
}
] |
Michigan Supreme Court
|
Michigan Supreme Court
|
S
|
Michigan, MI
|
2,617,570 |
Alma, Hargrave, Hodges, Kauger, Lavender, Opala, Simms, Summers, Watt, Wilson
| 1995-01-03 | false |
mosier-v-oklahoma-property-casualty-insurance-guaranty-assn
|
Mosier
|
Mosier v. Oklahoma Property & Casualty Insurance Guaranty Ass'n
|
Kent and Cindy MOSIER, Appellees, v. OKLAHOMA PROPERTY AND CASUALTY INSURANCE GUARANTY ASSOCIATION, Appellant
|
James L. Percival, Kim Daniel Parrish, Derryberry, Quigley, Parrish, Solomon & Blankenship, Robert N. Naifeh, Jr., Oklahoma City, for appellant., Brian Husted, Edmonds, Cole, Hargrave, Givens & Witzke, Oklahoma City, for appel-lees.
| null | null | null | null | null | null | null |
As Corrected Jan. 3, 1995.
| null | null | 4 |
Published
| null |
<parties id="b944-5">
Kent and Cindy MOSIER, Appellees, v. OKLAHOMA PROPERTY AND CASUALTY INSURANCE GUARANTY ASSOCIATION, Appellant.
</parties><br><docketnumber id="b944-8">
No. 78814.
</docketnumber><br><court id="b944-9">
Supreme Court of Oklahoma.
</court><br><decisiondate id="b944-10">
Dec. 20, 1994.
</decisiondate><br><otherdate id="b944-11">
As Corrected Jan. 3, 1995.
</otherdate><br><attorneys id="b944-22">
James L. Percival, Kim Daniel Parrish, Derryberry, Quigley, Parrish, Solomon & Blankenship, Robert N. Naifeh, Jr., Oklahoma City, for appellant.
</attorneys><br><attorneys id="b945-3">
<span citation-index="1" class="star-pagination" label="879">
*879
</span>
Brian Husted, Edmonds, Cole, Hargrave, Givens & Witzke, Oklahoma City, for appel-lees.
</attorneys>
|
[
"890 P.2d 878"
] |
[
{
"author_str": "Summers",
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": null,
"author_id": 5458,
"opinion_text": "\n890 P.2d 878 (1994)\nKent and Cindy MOSIER, Appellees,\nv.\nOKLAHOMA PROPERTY AND CASUALTY INSURANCE GUARANTY ASSOCIATION, Appellant.\nNo. 78814.\nSupreme Court of Oklahoma.\nDecember 20, 1994.\nAs Corrected January 3, 1995.\nJames L. Percival, Kim Daniel Parrish, Derryberry, Quigley, Parrish, Solomon & Blankenship, Robert N. Naifeh, Jr., Oklahoma City, for appellant.\n*879 Brian Husted, Edmonds, Cole, Hargrave, Givens & Witzke, Oklahoma City, for appellees.\nSUMMERS, Justice:\nAn injured worker received compensation benefits. He also reached a settlement with a manufacturer/defendant in a separate District Court proceeding involving the same injuries. The manufacturer's liability insurer failed, and the worker looks to the Oklahoma Property and Casualty Insurance Guaranty Association. The only question before us is whether the Association is entitled to setoff the workers' compensation benefits received by the worker against its obligation to pay. We conclude that such a setoff is allowed by statute.\nKent Mosier was seriously injured while working on an oil and gas drilling rig manufactured and sold by Parker Drilling Company, a subsidiary of OIME, Inc. He filed a workers' compensation claim against his employer. In the District Court, he filed a products liability suit against OIME, the manufacturer of the rig, and against American Standard, Inc., the manufacturer of the transmission of the rig motor.\nA settlement was reached in 1987. It required that Mosier be paid a total of $300,000.00. American Standard was to pay $30,000.00 and OIME, through its insurer, Integrity Insurance Company, was to pay the remaining $270,000.00. American Standard paid its portion, but because OIME's insurer became insolvent the $270,000.00 remained unpaid.\nMosier filed a claim with the Oklahoma Property and Casualty Insurance Guaranty Association pursuant to 36 Ohio St. 1991 § 2001 et seq. The claim was denied because statute required the Mosiers to first file with the guaranty association in the home state of the insurer. Integrity's home state was Texas. Mosier then filed a claim with the Texas Guaranty Association which was settled for $75,000.00.[1] Mosier also received $68,159.66 in workers' compensation benefits.\nMosier next refiled against the Oklahoma Guaranty Association under the Oklahoma Act, seeking $150,000.00, the statutory cap per occurrence. The parties submitted the case on stipulated facts and cross motions for summary judgment. The trial court granted summary judgment to Mosier for $150,000.00. The court subsequently amended the judgment to include post-judgment interest. The Guaranty Association perfected this appeal.\nThe Court of Appeals affirmed the trial court in part and reversed in part. It agreed that the cap under applicable Oklahoma law was $150,000.00. It held that this amount must be reduced by the amount the Texas Association could have been required to pay, which was $100,000.00. The court went on to hold that the $30,000.00 received from the American Standard was not to be set off against the amount owed by the Association, because the settlement of $30,000.00 was separate and distinct from the settlement with the insolvent insurer. The court also ruled that workers' compensation benefits were not required to be set off against the amount owed by the Guaranty Association. Thus, in light of the Texas Guaranty Association's payment, the trial court's judgment was reduced from $150,000.00 to $50,000.00. Mosier did not seek certiorari. The Guaranty Association did, and its petition was granted by this Court.\nThe only issue raised in the petition for certiorari, and thus the only thing reviewable by this Court, is whether the Guaranty Association is entitled to setoff for the workers' compensation benefits paid to Mosier. In its petition for certiorari the Guaranty Association argues that the Court of Appeals' decision was contrary to our recent decisions in Oglesby v. Liberty Mutual Ins. Co., 832 P.2d 834 (Okla. 1992) and Welch v. Armer, 776 P.2d 847 (Okla. 1989). It also claims that the appellate court erroneously relied on Louisiana law which had been specifically rejected by this Court in Welch.\nThe Oklahoma Property and Casualty Insurance Guaranty Act was enacted in 1980. The stated purpose behind its enactment is:\n[T]o provide a mechanism for the payment of covered claims under certain insurance *880 policies, to avoid excessive delay in payment, to avoid financial loss to claimants or policyholders because of the insolvency of an insurer, to assist in the detection and prevention of insurer insolvencies, and to provide an association to assess the cost of such protection among insurers.\nSee 36 Ohio St. 1981 § 2002. As the severity of the problem of insurance companies becoming insolvent increased, all fifty states enacted statutes similar to Oklahoma's legislation to protect \"victims from suffering the hardship of uncompensated losses.\" Roberts, Insurance Company Insolvencies and Insurance Guaranty Funds: A Look at the Non-duplication or Recovery Clause, 74 Iowa L.R. 927, 928 (1979).\nThe dispositive provision of the Act, insofar as this case is concerned, is found at 36 Ohio St. 1991 § 2012(A), and reads as follows:\nA. Any person having a claim against an insurer under any provision of an insurance policy other than a policy of the insolvent insurer which is also a covered claim shall be required to first exhaust his rights under such policy. Any amount payable on a covered claim under this act shall be reduced by the amount of any recovery under such other insurance policy. The provisions of this subsection shall not apply to uninsured motorist coverage. (emphasis added)\nThe Association urges that this section, as interpreted by Oglesby, requires setoff of the workers' compensation benefits received.\nIn Oglesby, we were faced with several questions certified by a federal district court concerning the interpretation of the Guaranty Association Act, 36 Ohio St. 1981 § 2001 et seq.[2] One question addressed was whether 36 Ohio St. 1981 Section 2012(A) required setoff for all other insurance benefits received. We held that before recovery may be made from the Oklahoma Guaranty Association, a claimant must exhaust all covered claims against solvent insurers. Further, if any money is recovered from these insurers, that amount must be credited against the Oklahoma Guaranty Association's $150,000 statutory cap. In dicta, we stated that the statute likewise applied to require an offset for whatever workers' compensation benefits have been received. Id. at 843-44 n. 41.\nThere are, to be sure, cases from some jurisdictions which apply comparable setoff statutes only where to do so would prevent a plaintiff's double recovery. Connecticut Ins. Guaranty Ass'n v. Union Carbide Corp., 217 Conn. 371, 585 A.2d 1216 (1991); Washington Ins. Guaranty Ass'n v. McKinstry Co., 56 Wash. App. 545, 784 P.2d 190 (1990); Senac v. Sandefer, 418 So. 2d 543 (La. 1982). But we are unable to find any language in our Insurance Guaranty Association Act that would support such a reading of § 2012(A). Other jurisdictions recognize the statutory setoff without regard to whether double recovery is an issue, based simply on the language of the statute. Hawkins v. Kentucky Ins. Guar. Ass'n, 838 S.W.2d 410 (Ky. 1992); Rinehart v. Hartford Cas. Ins. Co., 91 N.C. App. 368, 371 S.E.2d 788 (1988); Ferrari v. Toto, 9 Mass. App. Ct. 483, 402 N.E.2d 107 (1980).\nOur Oglesby ruling relied on our earlier case of Welch v. Armer, supra. Footnote 41 in Oglesby is squarely on point. Here, the Oklahoma Guaranty Association claims it is entitled to setoff for workers' compensation benefits received by Mosier. In Oglesby we said that setoff is required if any funds are obtained from solvent insurers by the claimant for covered claims. Mosier obtained $68,159.66 in workers' compensation benefits. In obedience to Section 2012(A) and Oglesby, the Oklahoma Guaranty Association is entitled to have this amount credited against the statutory funds remaining available. By this we mean the amount left within the statutory cap after the setoff of the funds available from the Texas Guaranty Association, as has been determined by the Court of Appeals.\nSeveral issues raised in the petition in error and addressed by the Court of Appeals were not raised by the petition for certiorari.[3]*881 Mosier did not file a petition for certiorari nor a response to the Association's petition for certiorari. No party has, on certiorari, requested that this Court review these other issues. As such the resolution of those issues by the Court of Appeals is not subject to our review. Ford v. Ford, 766 P.2d 950, 955 (Okla. 1988).[4]\nWith regard to the decision on setoff of workers' compensation benefits, the Court of Appeals' opinion is vacated in part and replaced by this one. Otherwise the opinion of the Court of Appeals stands as the settled law of the case. The judgment of the trial court is reversed, and the case is remanded to the District Court for entry of judgment consistent with this writing.\nHODGES, C.J., LAVENDER, V.C.J., and SIMMS, OPALA, KAUGER and WATT, JJ., concur.\nALMA WILSON, J., concurs in part, dissents in part.\nHARGRAVE, J., disqualified.\nNOTES\n[1] At the time, Texas' Guaranty Act provided a cap of $100,000.00.\n[2] We realize that this Act was recodified in 1991; however, Oglesby dealt with several versions of the Act prior to its recodification.\n[3] Those issues not raised in any petition for certiorari, and upon which we express no opinion, include: (1) whether the applicable limit is that in the 1987 amendment to Section 2007, (2) whether the claimant fully exhausted remedies available through Texas' Guaranty Association by settling for less than the statutory limit, and (3) whether the $30,000.00 paid by the American Standard should have been set off against the liability of the Oklahoma Guaranty Association.\n[4] We recognize that Hough v. Leonard, 867 P.2d 438 (Okla. 1993) changed the previous rule regarding certiorari petitions so as to make it unnecessary for the \"winning\" party to file a certiorari petition to have a review where the Court of Appeals has left issues unaddressed. Here, the Court of Appeals addressed all the issues raised by the parties on appeal, reducing Mosier's award by two thirds, and thus we are not confronted with Hough's applicability.\n\n",
"ocr": false,
"opinion_id": 2617570
}
] |
Supreme Court of Oklahoma
|
Supreme Court of Oklahoma
|
S
|
Oklahoma, OK
|
57,686 | null | 2008-01-14 | false |
lane-v-harris-cty-med-dept
|
Lane
|
Lane v. Harris Cty Med Dept
| 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\\06/06-20935.1.wpd.pdf",
"author_id": null,
"opinion_text": " IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT United States Court of Appeals\n Fifth Circuit\n\n FILED\n January 11, 2008\n No. 06-20935\n Summary Calendar Charles R. Fulbruge III\n Clerk\nMICHAEL LANE\n\n Plaintiff-Appellant\n\nv.\n\nHARRIS COUNTY MEDICAL DEPARTMENT; MICHAEL SEAL;\nTRONG, DR\n\n Defendants-Appellees\n\n\n Appeal from the United States District Court\n for the Southern District of Texas\n USDC No. 4:06-CV-875\n\n\nBefore REAVLEY, SMITH, and BARKSDALE, Circuit Judges.\nPER CURIAM:*\n Michael Lane, Texas prisoner #1238595, appeals from the district court’s\ngrant of summary judgment. 42 U.S.C. § 1983; FED. R. CIV. P. 12(b)(6), 56. In\naddition to arguing the merits of his claims, Lane argues that the district court\nerred in dismissing his claims for failure to exhaust administrative remedies.\n We review the grant of summary judgment de novo. Resolution Trust\nCorp. v. Sharif-Munir-Davidson Dev. Corp., 992 F.2d 1398, 1401 (5th Cir. 1993).\n\n\n\n *\n Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion\nshould not be published and is not precedent except under the limited\ncircumstances set forth in 5TH CIR. R. 47.5.4.\n\f No. 06-20935\n\nLane was required under 42 U.S.C. § 1997e(a) to exhaust administrative\nremedies before filing suit. See § 1997e(a); Jones v. Bock, 127 S. Ct. 910, 914\n(2007); Johnson v. Johnson, 385 F.3d 503, 515 (5th Cir. 2004). Proper\nexhaustion is required, meaning that the prisoner must not only pursue all\navailable avenues of relief; he must also comply with all administrative\ndeadlines and procedural rules. Woodford v. Ngo, 126 S. Ct. 2378, 2385-88\n(2006). Viewing the evidence in the light most favorable to Lane, the summary\njudgment evidence reveals no genuine issue of material fact on the issue whether\nLane failed to complete the required steps of the Harris County Jail grievance\nprocedure because he failed to appeal the denial of his May 11, 2004, grievance.\nBecause Lane failed to complete the administrative review process, the district\ncourt did not err in dismissing Lane’s suit on the ground that Lane failed to\nexhaust administrative remedies. See Jones, 127 S. Ct. at 922-23.\n Lane argues that the district court erred in denying his motion to amend\nhis complaint and in denying his motion for the appointment of counsel. The\ndistrict court did not abuse its discretion in denying amendment of the complaint\nbecause even as amended, the complaint would be subject to dismissal for failure\nto exhaust administrative remedies. See Addington v. Farmer’s Elevator Mut.\nIns. Co., 650 F.2d 663, 667 (5th Cir. 1981). The district court further did not\nabuse its discretion in denying Lane’s motion for the appointment of counsel.\nSee Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987).\n AFFIRMED.\n\n\n\n\n 2\n\f",
"ocr": false,
"opinion_id": 57686
}
] |
Fifth Circuit
|
Court of Appeals for the Fifth Circuit
|
F
|
USA, Federal
|
475,020 | null | 1986-08-27 | false |
9rotter-v-allred
|
9rotter
|
9rotter v. Allred
| null | null | null | null | null | null | null | null | null | null | null | null | 0 |
Published
| null | null |
[
"798 F.2d 1411"
] |
[
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": "http://bulk.resource.org/courts.gov/c/F2/798/798.F2d.1411.85-2745.html",
"author_id": null,
"opinion_text": "798 F.2d 1411\n * 9Rotterv.Allred\n 85-2745\n United States Court of Appeals,Fifth Circuit.\n 8/27/86\n \n 1\n E.D.Tex.\n \n AFFIRMED\n \n 2\n ---------------\n \n \n \n * Local Rule 47.6 case.\n \n \n ",
"ocr": false,
"opinion_id": 475020
}
] |
Fifth Circuit
|
Court of Appeals for the Fifth Circuit
|
F
|
USA, Federal
|
1,843,279 |
Dwight H. Williams
| 2002-07-16 | false |
in-re-peagler
|
In Re Peagler
|
In Re Peagler
|
In Re James K. PEAGLER, Debtor
|
Richard D. Shinbaum, Montgomery, AL, for Debtor., Richard C. Dean, Jr., Montgomery, AL, for Creditor., Curtis C. Reding, Montgomery, AL, Trustee., Sabrina McKinney, Montgomery, AL, for trustee., Gullatte Hunter, Montgomery, AL, for Checkcare Systems.
| null | null | null | null | null | null | null | null | null | null | 2 |
Published
| null |
<parties id="b302-13">
In re James K. PEAGLER, Debtor.
</parties><br><docketnumber id="b302-14">
No. 02-30851-DHW.
</docketnumber><br><court id="b302-15">
United States Bankruptcy Court, M.D. Alabama.
</court><br><decisiondate id="b302-16">
July 16, 2002.
</decisiondate><br><attorneys id="b303-25">
<span citation-index="1" class="star-pagination" label="271">
*271
</span>
Richard D. Shinbaum, Montgomery, AL, for Debtor.
</attorneys><br><attorneys id="b304-3">
<span citation-index="1" class="star-pagination" label="272">
*272
</span>
Richard C. Dean, Jr., Montgomery, AL, for Creditor.
</attorneys><br><attorneys id="b304-4">
Curtis C. Reding, Montgomery, AL, Trustee.
</attorneys><br><attorneys id="b304-5">
Sabrina McKinney, Montgomery, AL, for trustee.
</attorneys><br><attorneys id="b304-6">
Gullatte Hunter, Montgomery, AL, for Checkcare Systems.
</attorneys>
|
[
"307 B.R. 270"
] |
[
{
"author_str": "Williams",
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": null,
"author_id": null,
"opinion_text": "\n307 B.R. 270 (2002)\nIn re James K. PEAGLER, Debtor.\nNo. 02-30851-DHW.\nUnited States Bankruptcy Court, M.D. Alabama.\nJuly 16, 2002.\n*271 Richard D. Shinbaum, Montgomery, AL, for Debtor.\n*272 Richard C. Dean, Jr., Montgomery, AL, for Creditor.\nCurtis C. Reding, Montgomery, AL, Trustee.\nSabrina McKinney, Montgomery, AL, for trustee.\nGullatte Hunter, Montgomery, AL, for Checkcare Systems.\n\nMEMORANDUM OPINION\nDWIGHT H. WILLIAMS, Bankruptcy Judge.\nThe matters before the court are the objections of Checkcare Systems and the chapter 13 trustee to the confirmation of the debtor's chapter 13 plan. Both of these objections center upon the valuation of the debtor's Greenville, Alabama residence. This court's jurisdiction regarding this dispute derives from 28 U.S.C. § 1334 and the general order of reference by the United States District Court for the Middle District of Alabama. An objection to confirmation of a chapter 13 plan is a core proceeding under 28 U.S.C. § 157(b)(2)(L) thereby giving this court jurisdiction to enter a final order and judgment.\nCheckcare Systems complains that the plan improperly classifies its judgment claim as an unsecured one. Checkcare Systems contends that there is equity in the debtor's home, over and above the consensual mortgage and the homestead exemption, and that its judgment claim attaches to that equity thereby securing the claim.\nThe trustee maintains that the debtor's plan, which is a 30% composition of the unsecured claims, does not pay unsecured creditors as much as they would receive were the estate liquidated in chapter 7. The plan's failure to satisfy the so-called \"best interest test,\" according to the trustee, is a result of the unencumbered and nonexempt equity in the debtor's home.\nBoth objections were considered at an evidentiary hearing on June 10, 2002. At the hearing the parties were represented by counsel. Checkcare Systems's attorney is Gullatte Hunter. Trustee's counsel is Sabrina McKinney. The debtor's attorney is Richard Shinbaum. Upon consideration of the evidence and arguments of the parties' counsel, the court makes the following findings of fact and conclusions of law.\n\nFINDINGS OF FACT\nThe debtor built his residence at 300 Hicks Street, Greenville, Alabama in 1993 at a cost of $108,000. Empire Mortgage has the only mortgage on the property. The balance of its claim is $132,541. Recent appraisals have been made of the property and have resulted in vastly disparate estimates of its value.\nCheckcare and the trustee rely upon the appraisal of Joseph L. Thomas. Thomas is a state-licensed appraiser, who has some, but limited, experience appraising property in the Greenville area.[1] Thomas first appraised the debtor's residence in February 2000 in conjunction with the debtor's efforts to obtain a loan from Home Equity Mortgage Company. That appraisal fixes the value of the property at $170,000 using both the cost and comparable sales approaches.\nThomas updated his February 2000 appraisal in May 2002. The updated appraisal fixes the value of the residence at $175,500 using the cost approach method *273 and $170,000 under the comparable sales approach method.[2]\nThe debtor, on the other hand, relies upon the appraisal of Jerry W. McCullough. McCullough, like Thomas, is a state-licensed real property appraiser. Unlike Thomas, however, McCullough has considerable appraisal experience in the Greenville area.[3] McCullough's May 2002 appraisal values the property at $84,833 using the cost approach and $85,700 using the comparable sales approach.[4]\nIn addition to these appraisals, one other independent indicium of the property's value was admitted into evidence. The tax assessor for Butler County, Alabama values the property at $107,600 for ad valorem tax purposes. While not an independent source, the debtor valued his home under the current plan at $110,900.\nThis is not the debtor's first chapter 13 case. His prior case was filed in this court in June 2000 (Case No. 00-2961). In that proceeding the debtor listed the value of his residence at $170,000. Peagler's confirmed plan provided that he pay his creditors, both secured and unsecured, in full.\nNumerous factors exist which negatively affect the value of the Peagler house. Both appraisers testified that the real estate market in the Greenville area is slow. Recent area plant closures have affected the general economy thereby adversely impacting the Greenville housing market.\nApart from the state of the economy and the housing market, the Peagler home is in poor repair. McCullough, who inspected the home in the course of his appraisal, testified that the home suffered from \"acute deferred maintenance.\"[5] McCollough noted flooring tears in both the vinyl and carpet floor covering, missing power plates, leaking roof resulting in damaged ceilings and walls, and a bullet hole in the front door. McCullough testified that the repair costs would total approximately $60,000. Further, the home is located in what McCullough described as an \"undesirable\" neighborhood. The neighborhood is subject to excessive noise and frequent loitering.\nUpon this evidence, the court finds that the Peagler home is worth no more than the $132,541 balance owing to the mortgagee. The McCollough appraisal is found more persuasive than that of Thomas because 1) McCullough has more appraisal experience in the Greenville area giving him greater awareness of intangible factors, such as neighborhood conditions and desirability, which could adversely affect valuation, 2) McCullough recognizes and accounts for the depressed real estate market in Greenville, and 3) McCullough's appraisal is significantly closer to that of the tax assessor than is the Thomas appraisal, which provides a degree of corroboration to the McCullough appraisal.\nFinally, the court gives less credence to the Thomas appraisal for another reason. As noted, Peagler built this house in 1993 for $108,000. Approximately seven years later, Thomas appraised the property for $170,000. This amounts to almost a 60% increase in the property's value during a time when the economy and housing market were experiencing a downturn and when the property, due to neglected repairs, *274 has deteriorated. No evidence was offered to explain this dramatic appreciation, and the court finds the appraisal less convincing.\n\nCONCLUSIONS OF LAW\nHaving found that the value of the debtor's home is less than the consensual mortgage, the court must conclude that the debtor's plan has properly classified Checkcare's claim as unsecured in spite of its having been reduced to judgment. 11 U.S.C. § 506 defines a secured claim in bankruptcy as:\n(a) An allowed claim of a creditor secured by a lien on property in which the estate has an interest, or that is subject to setoff under section 553 of this title, is a secured claim to the extent of the value of such creditor's interest in the estate's interest in such property, or to the extent of the amount subject to setoff, as the case may be, and is an unsecured claim to the extent that the value of such creditor's interest or the amount so subject to set off is less than the amount of such allowed claim. Such value shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property, and in conjunction with any hearing on such disposition or use or on a plan affecting such creditor's interest.\n11 U.S.C. § 506(a). In other words, a claim is secured to the extent of the value of the collateral. Here, there is no value in the Peagler home over and above the $132,541 consensual mortgage to secure the Checkcare judgment. Therefore, pursuant to 11 U.S.C. § 506(d), Checkcare's judgment lien is void.[6]\nLikewise, the court must conclude that the \"best interest test\" of 11 U.S.C. § 1325(a)(4) is satisfied.[7] Were Peagler's estate liquidated under chapter 7, nothing would be paid to unsecured creditors as a result of the liquidation of the Peagler home.\nFinally, one other legal issue is due consideration. Checkcare and the trustee assert that the debtor is prevented, under the doctrine of judicial estoppel, from presenting evidence contradicting the $170,000 value that he assigned to his home in the prior chapter 13 case. The court disagrees.\nJudicial estoppel is an equitable doctrine invoked at a court's discretion. New Hampshire v. Maine, 532 U.S. 742, 750, 121 S. Ct. 1808, 1815, 149 L. Ed. 2d 968 (2001). Its purpose \"is to protect the integrity of the judicial process . . . by prohibiting parties from deliberately changing positions according to the exigencies of the moment.\" New Hampshire, 532 U.S. at 749-50, 121 S.Ct. at 1814 (citations omitted). In the Eleventh Circuit \"[j]udicial estoppel is applied to the calculated assertion of divergent sworn positions. The doctrine is designed to prevent parties from making a mockery of justice by inconsistent pleadings.\" American Nat'l Bank v. Federal Dep. Ins. Corp., 710 F.2d *275 1528, 1536 (11th Cir.1983) (citation omitted).\nAlthough not an exhaustive list, the Supreme Court has enumerated factors that courts should consider in deciding whether the judicial estoppel doctrine should be invoked. They include: 1) whether the position espoused in the present case is \"clearly inconsistent\" with the position previously taken; 2) whether the tribunal was persuaded to accept the earlier position so that acceptance of the inconsistent position in the later proceeding creates a perception that the court was misled; and 3) whether the party advancing the position would gain an unfair advantage over the opposing party. New Hampshire, 532 U.S. at 750-51, 121 S.Ct. at 1815.\nFurther, in this circuit courts are instructed to apply a two- factor test to determine the applicability of the doctrine of judicial estoppel in a particular case. Salomon Smith Barney, Inc. v. Harvey, M.D., 260 F.3d 1302, 1308 (11th Cir.2001). \"First, it must be shown that the allegedly inconsistent positions were made under oath in a prior proceeding. Second, such inconsistencies must be shown to have been calculated to make a mockery of the judicial system.\" Id. Only recently, the Eleventh Circuit held that these two factors\nare consistent with the Supreme Court's instructions . . ., and provide courts with sufficient flexibility in determining the applicability of the doctrine of judicial estoppel based on the facts of a particular case. We recognize that these two enumerated factors are not inflexible or exhaustive; rather, courts must always give due consideration to all of the circumstances of a particular case when considering the applicability of this doctrine.\nBurnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1285-86 (11th Cir.2002).\nFinally, \"the doctrine of judicial estoppel applies in situations involving intentional contradictions, not simple error or inadvertence.\" Id. at 1286. See also American Nat'l Bank, 710 F.2d at 1536 (holding the doctrine applies to the \"calculated assertion\" of inconsistent positions); Browning Manufacturing v. Mims (In re Coastal Plains, Inc.), 179 F.3d 197, 206 (5th Cir.1999) (holding the doctrine is generally applied when \"intentional self-contradiction is being used as a means of obtaining unfair advantage in a forum provided for suiters seeking justice.\"); Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355, 362 (3rd Cir.1996) (holding that the doctrine does not apply when the prior position was taken because of \"a good faith mistake rather than as a part of a scheme to mislead the court.\"); In re Cassidy, 892 F.2d 637, 642 (7th Cir.1990) (holding that the doctrine is not invoked \"where the former position was the product of inadvertence or mistake.\").\nComplete and accurate disclosures by debtors of their assets is essential for the effective administration of the bankruptcy system. The sheer number of bankruptcy cases filed makes it unrealistic to expect trustees to conduct personal inspections of debtors' property in each case. The court, trustees, and creditors must be able to place some semblance of reliance upon the debtors' disclosures. Therefore, careful scrutiny of the debtors' motives and actions must be taken when gross inconsistencies arise. This court fears that all too often fraud can be passed off and defended in the name of carelessness and inadvertence.\nThere is no dispute that Peagler valued his home two years ago in the prior case at $170,000 and now values the same property *276 at $110,900. Considering the totality of the circumstances in this case, however, the court is not convinced that this inconsistency stems from Peagler's calculated and intentional attempt to make a mockery of justice by taking advantage of the exigencies of the circumstances. Therefore, the doctrine of judicial estoppel does not bar the court's consideration of Peagler's evidence supporting a lesser value than was disclosed in the earlier bankruptcy.\nThe court reaches this conclusion for a number of reasons. First, the debtor's plan in the prior case provided for the payment of his debts in full. As a result, valuation of his home was not at issue. Peagler was not required to persuade the court or the trustee to accept the $170,000 valuation. The $170,000 valuation resulted in neither an advantage nor disadvantage to Peagler or to his creditors in the prior full payment case.\nSecondly, there is no evidence that Peagler possesses special expertise in real estate valuation. In his first case he merely relied upon the valuation as set by the Thomas appraisal. There is no hint of dishonesty or manipulation in that reliance. In the case at bar where Peagler is proposing a composition plan, a closer examination of the home's value was necessary. The evidence convinces the court that the lower valuation used in this case is a product of a closer examination and not of Peagler's taking improper advantage of the situation.\nFinally, evidence was admitted in this case by two state-licensed appraisers. Their assessment of the property's value differed by some $90,000. McCollough's appraisal is less than half the value fixed by Thomas. That two licensed appraisers could arrive at such significantly divergent values lend credence to the proposition that the debtor, who has no real estate valuation expertise should not be judicially estopped from having the court consider evidence inconsistent with his earlier disclosure absent evidence of intentional manipulation.\n\nCONCLUSION\nFor the foregoing reasons the court concludes that the objections by Checkcare Systems and the chapter 13 trustee to the confirmation of the debtor's chapter 13 plan are not well taken and are due to be overruled. By separate order, consistent with this memorandum opinion, the objections will be overruled and the plan confirmed.\n\nORDER OVERRULING OBJECTIONS\nIn accordance with the Memorandum Opinion entered this day, it is hereby\nORDERED that the objections filed by the chapter 13 trustee and Checkcare Systems to confirmation of the debtor's proposed chapter 13 plan are OVERRULED, and the plan will be confirmed by separate order.\nNOTES\n[1] Mr. Thomas testified that he has averaged one Greenville area appraisal each year for the past several years.\n[2] Checkcare Exhibits 1 and 2 are the February 2000 and May 2002 appraisals made by Thomas.\n[3] McCullough testified that he averages making twenty Greenville area real estate appraisals each year.\n[4] Debtor's Exhibit 1 is the McCullough appraisal, which is dated May 2002.\n[5] The court notes that Thomas also inspected the home during the course of his appraisal but noted only minor defects.\n[6] 11 U.S.C. § 506(d) provides:\n\n(d) To the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void, unless \n(1) such claim was disallowed only under 502(b)(5) or 502(e) of this title; or\n(2) such claim is not an allowed claim due only to the failure of any entity to file a proof of such claim under section 501 of this title.\n[7] 11 U.S.C. § 1325(a)(4) provides:\n\n(a) Except as provided in subsection (b), the court shall confirm a plan if . . .\n(4) the value, as of the effective date of the plan, of property to be distributed under the plan on account of each allowed unsecured claim is not less than the amount that would be paid on such claim if the estate of the debtor were liquidated under chapter 7 of this title on such date[.]\n\n",
"ocr": false,
"opinion_id": 1843279
}
] |
M.D. Alabama
|
United States Bankruptcy Court, M.D. Alabama
|
FB
|
Alabama, AL
|
2,617,632 |
Andersen, Dollxver
| 1995-03-09 | false |
washington-state-bar-assn-v-state
| null |
Washington State Bar Ass'n v. State
|
The Washington State Bar Association, Petitioner, v. the State of Washington, Et Al, Respondents
|
Davis Wright Tremaine, by P. Cameron DeVore, Stephen M. Rummage, Linda White Atkins, and Gregory J. Kopta, for petitioner., Christine O. Gregoire, Attorney General, Richard A. Heath, Senior Assistant, and Spencer Daniels, Assistant, for respondent State., Webster, Mrak & Blumberg, James H. Webster, and Lynn D. Weir, for respondent Union.
| null | null | null | null | null | null | null | null | null | null | 21 |
Published
| null |
<docketnumber id="b949-5">
[No. 61830-5.
</docketnumber><court id="afk-dedup-0">
En Banc.
</court><decisiondate id="AXCn">
March 9, 1995.]
</decisiondate><br><parties id="b949-6">
The Washington State Bar Association,
<em>
Petitioner,
</em>
v. The State of Washington, et al,
<em>
Respondents.
</em>
</parties><br><attorneys id="b950-5">
<span citation-index="1" class="star-pagination" label="902">
*902
</span>
<em>
Davis Wright Tremaine,
</em>
by
<em>
P. Cameron DeVore, Stephen M. Rummage, Linda White Atkins,
</em>
and
<em>
Gregory J. Kopta,
</em>
for petitioner.
</attorneys><br><attorneys id="b950-6">
<em>
Christine O. Gregoire, Attorney General, Richard A. Heath, Senior Assistant,
</em>
and
<em>
Spencer Daniels, Assistant,
</em>
for respondent State.
</attorneys><br><attorneys id="b950-7">
<em>
Webster, Mrak & Blumberg, James H. Webster,
</em>
and
<em>
Lynn D. Weir,
</em>
for respondent Union.
</attorneys>
|
[
"890 P.2d 1047",
"125 Wash. 2d 901"
] |
[
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": null,
"author_id": 5956,
"opinion_text": "\n125 Wn.2d 901 (1995)\n890 P.2d 1047\nTHE WASHINGTON STATE BAR ASSOCIATION, Petitioner,\nv.\nTHE STATE OF WASHINGTON, ET AL, Respondents.\nNo. 61830-5.\nThe Supreme Court of Washington, En Banc.\nMarch 9, 1995.\n*902 Davis Wright Tremaine, by P. Cameron DeVore, Stephen M. Rummage, Linda White Atkins, and Gregory J. Kopta, for petitioner.\nChristine O. Gregoire, Attorney General, Richard A. Heath, Senior Assistant, and Spencer Daniels, Assistant, for respondent State.\nWebster, Mrak & Blumberg, James H. Webster, and Lynn D. Weir, for respondent Union.\nANDERSEN, J.[*]\n\nFACTS OF THE CASE\nIn this case we determine the constitutionality of a statute which was intended to nullify a general rule of court adopted by this court, and which directly and unavoidably conflicts with that rule of court. We hold that the statute in question, which declares the Washington State Bar Association a \"public employer\" subject to the Public Employees' Collective Bargaining Act, RCW 41.56, to be unconstitutional in that it violates the separation of powers doctrine.\nThis action grew out of a labor dispute between the Washington State Bar Association (Bar Association) and its employees. Our decision here is, however, not one which is in any way intended to affect labor law jurisprudence.\nInitially, it is important to clarify what this case is not about. It is not about the value of collective bargaining, or *903 about the importance of maintaining good labor relations between the Bar Association and its employees. It is also not about the authority of the Legislature to enact general employment statutes that are applicable to the Bar Association. Nor is it about the merits of the arguments advanced by the respective participants in this labor dispute.\nThis is a constitutional case. What it does involve is one of the cardinal and fundamental principles of the American constitutional system, the separation of powers doctrine.\nThe pertinent facts are simple. In early 1991 several Bar Association employees attempted to organize, seeking representation by the United Food and Commercial Workers Union (Union) for purposes of collective bargaining. The Bar Association refused to recognize the Union as the collective bargaining representative of its employees. Then in November of 1991, the Union asked this court to change our General Rule (GR) 12, which outlines the purposes and the powers of the Bar Association. The suggested rule change amendment would have required the Bar Association to collectively bargain with its employees.\nOn October 8, 1992, this court declined to adopt the Union's suggested rule change.\nDuring the 1993 legislative session, the Legislature enacted Engrossed House Bill (EHB) 1152 as follows:\nSec. 1. The legislature is committed to providing collective bargaining for all employees. However, the legislature is also mindful of the separations of powers and responsibilities among the branches of government. Therefore, the legislature strongly encourages the state supreme court to adopt collective bargaining for the employees of the Washington state bar association.\nSec. 2. RCW 41.56.020 and 1992 c 36 § 1 are each amended to read as follows:\nThis chapter shall apply to any county or municipal corporation, or any political subdivision of the state of Washington.... The Washington state supreme court may provide by rule that the Washington state bar association shall be considered a public employer of its employees.\nLaws of 1993, ch. 76, p. 218.\nThis court responded to that legislation by amending GR 12, the general rule governing the authority of the Bar Association. *904 On December 2, 1993, after carefully considering the matter and mindful of the Legislature's recommendation, we added a new subsection (16) to our General Rule 12(b), giving the Bar Association's Board of Governors the discretion to determine whether to collectively bargain with its employees.[1] In an informational note to the amendment, this court recognized the Legislature's 1993 enactment, stating:\nDuring the 1993 regular session EHB 1152 was passed. That legislation amends RCW 41.56.020 by providing that while recognizing the separation of powers and responsibilities in government, \"the legislature strongly encourages the state supreme court to adopt collective bargaining for the employees of the Washington state bar association\".\nThe amendment [to GR 12(b)] confers upon the Washington State Bar Association's Board of Governors the authority, in its discretion, to adopt collective bargaining for employees of that association.\n122 Wn.2d 1119.\nGR 12, which we adopted in 1987, is divided into three parts. The first part, section (a), declares the purposes of the Bar Association. The second, section (b), sets forth the various actions which the Bar Association is authorized to take. The third, section (c), sets forth the actions which the Bar Association is prohibited from taking. The parts of the rule, including the recent amendment, that are pertinent here are the following:\n(a) Purposes; In General. The purposes of the Washington State Bar Association shall be to promote and aid in the effective administration of justice; to assist in the admission and discipline of members of the Bar Association; to foster and maintain high standards of competence, professionalism and ethics among its members; to promote the availability of legal services to all in need; to advise the public and its officials in matters relevant to these purposes and the professional interests of the Bar Association; to promote respect and understanding for our legal system; to promote the creation of voluntary associations of lawyers concerned with their members' professional interests; to carry on programs of legal research and education; to provide a forum for the discussion of subjects pertaining to jurisprudence and the practice of law; to foster camaraderie among members of the Bar Association and good *905 will between the Bar Association and the public; to promote the independence of the Bar Association and the judiciary of which it is a part; and to promote the interests of the legal profession.\n(b) Specific Activities Authorized. Among the specific Bar Association activities authorized by this rule and these stated purposes are:\n...\n(16) Authorizing, in its discretion, collective bargaining for its employees.\nGR 12 (part).\nIn early 1994 the Legislature again addressed the issue. The Legislature noted that the court had amended GR 12(b) to give the Bar Association's Board of Governors discretionary authority to adopt collective bargaining for its employees. It further recognized that this court has held that \"as a separate branch of government, it has inherent constitutional powers to control the bar association and its functions as part of its administration of the courts\".[2] The Legislature nonetheless ignored this court's actions, repealed the declaration set forth in EHB 1152, Laws of 1993, ch. 76, § 1, and amended RCW 41.56.020 to read as follows:\nThis chapter shall apply to any county or municipal corporation, or any political subdivision of the state of Washington.... The Washington state bar association shall be considered a public employer of its employees.\nLaws of 1994, ch. 297, p. 1881.\nThe effect of this new legislation was to remove the discretion which this court had granted the Board of Governors under GR 12(b)(16) by making collective bargaining mandatory.\nFollowing the enactment of the statute, and pursuant to RCW 41.56, the Bar Association employees petitioned the Public Employment Relations Commission (PERC) for a determination as to whether the bar's employees desired to be represented by a labor organization for the purpose of collective bargaining. After PERC notified the Bar Association that it would investigate and administer the matter, the *906 Bar Association filed a petition in this court seeking a writ of prohibition. This court has original jurisdiction in this matter pursuant to Const. art. 4, § 4 and RAP 16.2. The petition for writ of prohibition asks the court to prohibit PERC from assuming jurisdiction over the labor dispute between the bar and its employees and further asks us to declare the 1994 amendment to the statute unconstitutional.\nOne issue is determinative of this case.\n\nISSUE\nIs legislation which directly and unavoidably conflicts with a court rule governing Bar Association powers and responsibilities constitutional?\n\nDECISION\n\nISSUE.\nCONCLUSION. Legislation which directly and unavoidably conflicts with a rule of court governing Bar Association powers and responsibilities is unconstitutional as it violates the separation of powers doctrine; such legislation is therefore void.\nWashington's constitution, Const. art. 4, § 1 vests the judicial power of the State in a separate branch of government the judiciary.[3] The importance of the separation of powers doctrine was stated in Washington State Motorcycle Dealers Ass'n v. State, 111 Wn.2d 667, 674-75, 763 P.2d 442 (1988) (quoting 16 Am.Jur.2d Constitutional Law § 296, at 808, § 309, at 829 (1979))[4] as follows:\nThe importance of the case before us is that it deals directly with one of the cardinal and fundamental principles of the American constitutional system, both state and federal: the separation of powers doctrine. \"It has been declared that the division of governmental powers into the executive, legislative, and judicial represents probably the most important principle *907 of government declaring and guaranteeing the liberties of the people, and preventing the exercise of autocratic power, and that it is a matter of fundamental necessity, and is essential to the maintenance of a republican form of government.\" . .. In this same connection, it is also the law that \"American courts are constantly wary not to trench upon the prerogatives of other departments of government or to arrogate to themselves any undue powers, lest they disturb the balance of power; and this principle has contributed greatly to the success of the American system of government and to the strength of the judiciary itself.\"\n(Footnotes omitted.) It may be noted parenthetically that in the Motorcycle Dealers case, we unhesitatingly applied the separation of powers doctrine to protect the authority of the legislative branch of our state government against encroachment by the State's executive branch.\nIn furtherance of this principle of separation of powers, this court has refused to interfere with the executive and legislative branches of government while at the same time insisting that those branches of government not usurp the functions of the judicial branch of government.[5]\n[1-3] One of the basic functions of the judicial branch of government is the regulation of the practice of law.[6] The Bar Association is sui generis and many of its functions are directly related to and in aid of the judicial branch of government.[7] It is important to keep in mind in this connection that the Bar Association does not receive any appropriation from the Legislature or any other public body. It is funded entirely by mandatory membership licensing fees and various user fees, including continuing legal education (CLE) revenues, bar examination fees, practice section dues and Washington State Bar News advertising revenues.[8] This court's control over Bar Association functions is not limited to admissions *908 and discipline of lawyers. The control extends to ancillary administrative functions as well.[9]\nThe practice of law is so intimately connected with the exercise of judicial power in the administration of justice that the right to define and regulate the practice naturally and logically belongs to the judicial department of the state government. Under the doctrine of separation of powers the courts have inherent power to regulate admission to the practice of law, to oversee the conduct of attorneys as officers of the court, and to control and supervise the practice of law generally, whether in or out of court. It is a prerogative of the judicial department to regulate the practice of law. However, the state has a substantial interest in maintaining a competent bar, and the legislature, under the police power, may act to protect the public interest, but in so doing, it acts in aid of the judiciary and does not supersede or detract from the power of the courts.\n\n(Footnotes omitted. Italics ours.) 7 Am.Jur.2d Attorneys at Law § 2, at 55-56 (2d ed. 1980).[10]\nIndeed, the Legislature itself expressly recognized the ultimate power of the court to regulate the Bar Association when it enacted its 1993 legislation relating to collective bargaining by Bar Association employees.[11]\nWe have recognized that it is sometimes possible to have an overlap of responsibility in governing the administrative aspects of court-related functions.[12] However, a legislative *909 enactment may not impair this court's functioning or encroach upon the power of the judiciary to administer its own affairs. The ultimate power to regulate court-related functions, including the administration of the Bar Association, belongs exclusively to this court.[13]\nIn the present case, the Legislature has attempted to nullify a general rule adopted by this court by enacting legislation which directly and unavoidably conflicts with that rule. The rule, GR 12(b)(16), grants the Bar Association's Board of Governors discretion to determine whether to collectively bargain with its employees. The legislation, RCW 41.56.020, takes that discretion away.\n[4] Where a court rule and a statute conflict, we will attempt to read the two enactments in such a way that they can be harmonized.[14] However, where they cannot be harmonized, the court rule will prevail.[15] PERC and the union both acknowledged this rule of law during oral argument before this court.\n[5] It is not possible to harmonize GR 12(b)(16) with RCW 41.56.020, as amended in 1994. The court rule, which gives the Board of Governors discretion to determine whether to collectively bargain with employees, cannot be reconciled with legislation that nullifies that discretion and makes collective bargaining mandatory. The rule therefore prevails.[16]\nOnce this court has adopted a rule concerning a matter related to the exercise of its inherent power to control the bar, the Legislature may not thereafter reverse or override the court's rule.\n*910 The Legislature's enactment examined here unconstitutionally encroached upon the powers of this court. The 1994 amendment of RCW 41.56.020 violates the separation of powers doctrine and is void. PERC therefore has no jurisdiction to act with respect to the Bar Association.\nThe petition for a writ of prohibition is granted.\nDURHAM, C.J., UTTER, GUY, and JOHNSON, JJ., and BRACHTENBACH, J. Pro Tem., concur.\nDOLLIVER, J. (dissenting)\nThe majority correctly states the law of this case: where a legislative action directly conflicts with a court rule in an area of inherent judicial authority, the legislative action must fall as a violation of separation of powers. The issue of this case, however, is not the accuracy of that rule. Rather, the issue presented is whether such a conflict exists on the facts of the case: does chapter 297 of the Laws of 1994 (the Amendment), amending the Public Employees' Collective Bargaining Act (PECBA) (RCW 41.56.020), directly conflict with General Rule (GR) 12(b)-(16)? I would hold no such conflict exists.\n\nI\nGuiding the court's consideration of an alleged conflict between statutory provision and judicial rule is the principle that \"[a]pparent conflicts between a court rule and a statutory provision should be harmonized, and both given effect if possible.\" Nearing v. Golden State Foods Corp., 114 Wn.2d 817, 821, 792 P.2d 500 (1990). Applying this principle, we have consistently avoided striking down such a statute. Instead, the court has construed the statute so that no conflict existed, In re Chi-Dooh Li, 79 Wn.2d 561, 566, 488 P.2d 259 (1971); In re Levy, 23 Wn.2d 607, 617, 161 P.2d 651, 162 A.L.R. 805 (1945), or acquiesced to the conflicting action of the competing branch while retaining ultimate authority to negate future intrusions, State ex rel. Schwab v. Washington State Bar Ass'n, 80 Wn.2d 266, 271, 493 P.2d 1237 (1972).\n*911 The majority decides the legislative and judicial acts here cannot be harmonized because GR 12(b)(16) permits collective bargaining at the Bar Association's \"discretion\", while the Amendment makes it \"mandatory\". I would interpret both the scope of the Bar Association's \"discretion\" and the impact of PECBA's \"mandatory\" collective bargaining differently than the majority has. Because this reasonable interpretation of the conflicting actions permits harmonization, I would so hold.\nThe discretion granted in GR 12(b)(16) simply acknowledges that the Bar Association, not the court, will act as the employer in collective bargaining decisionmaking. This discretion, however, does not grant the Bar Association unfettered freedom over employment practices. The Bar Association is already subject to various state employment statutes administered by executive agencies, including the state workers' compensation act, RCW 51.12, wage and hour laws, RCW 49.46, the Employment Security Act, RCW 50.04, and the state Law Against Discrimination, RCW 49.60. Likewise, the Bar Association is treated as a public employer for the purposes of state employment programs, such as the Public Employees' Retirement System, WAC 415-02, and the Washington State Health Care Authority administered health insurance plans, WAC 182-08.\nThe majority unjustifiably fears the term \"mandatory\" without investigating the true impact of mandatory collective bargaining: PECBA actually imposes very little. The statute would guide the Bar Association's employment practices through three points: the initial representation election, RCW 41.56.070; certification of the collective bargaining representative, RCW 41.56.060, .080; and, if necessary, adjudication of unfair labor complaints, RCW 41.56.160, RCW 41.58.020. The Bar Association agreed prior to the initiation of this case to hold an election and to the composition of the bargaining unit for certification. Thus, the Amendment merely designates the Public Employment Relations Commission (PERC) as the supervisor of this process. RCW 41.56.070. The court retains *912 authority to review PERC's nonadjudicatory decisions as applied. See International Ass'n of Fire Fighters, Local 1052 v. Public Empl. Relations Comm'n, 29 Wn. App. 599, 602, 630 P.2d 470, review denied, 96 Wn.2d 1004 (1981).\nIf the Bar Association employees elect a bargaining representative, by no means a certainty 4 years after the original employees expressed interest in unionizing, the certified representative and the Bar Association will negotiate a collective bargaining agreement completely independent of PECBA. The Bar Association retains full discretion over the contours of any agreement; PERC has no authority to compel contract terms, including whether to appoint PERC as grievance arbitrator. Indeed, PECBA would have no other application to the Bar Association's activities unless an unfair labor dispute arose. Even in that case, PERC's authority is primarily procedural, confined to factfinding and applying PECBA. RCW 41.58.020. The agency lacks prosecutorial or independent investigatory authority, and only a court may enforce a PERC order. RCW 41.56.160(3).\nThus, PECBA would set the rules of collective bargaining and appoint the referee, but would not compel an outcome. It is evident the Bar Association would retain full discretion over the substantive aspects of collective bargaining. The only \"mandatory\" effect of PECBA is its requirement to engage in the process, a process to which the Bar Association has agreed.\n\nII\nNot only are the statute and judicial rule reconcilable, PECBA does not constitute an impermissible intrusion into judicial function by either the legislative or executive branch.\nThe court has asserted a constitutional framework where \"complete separation was never intended and overlapping functions were created deliberately.\" In re Juvenile Director, 87 Wn.2d 232, 242, 552 P.2d 163 (1976). Rather, separation of powers must be viewed concurrently with the system of checks and balances, creating a plan of overlapping functions that permits even some direct control by one branch *913 over another. Juvenile Director, 87 Wn.2d at 242-43; see also Seattle Sch. Dist. 1 v. State, 90 Wn.2d 476, 506, 585 P.2d 71 (1978); Moran v. State, 88 Wn.2d 867, 873, 568 P.2d 758 (1977). Thus, we have sought to balance the constitutional value of autonomy with the competing value of reciprocity. Juvenile Director, 87 Wn.2d at 248.\nHarmonious cooperation among the three branches is fundamental to our system of government. Only if this cooperation breaks down is it necessary for the judiciary to exercise inherent power to sustain its separate integrity.... The question to be asked is not whether two branches of government engage in coinciding activities, but rather whether the activity of one branch threatens the independence or integrity or invades the prerogatives of another....\nZylstra v. Piva, 85 Wn.2d 743, 750, 539 P.2d 823 (1975).\nA review of our previous decisions reveals three determinative factors in a separation of powers challenge to a legislative intrusion into the judicial sphere. First, the court has been willing to go a long distance to avoid declaring a separation of powers violation. The court will, as we should here, attempt to reconcile any apparent conflicts. See Schwab, 80 Wn.2d at 271; Chi-Dooh Li, 79 Wn.2d at 566; Levy, 23 Wn.2d at 617.\nSecond is the centrality of the judicial function: the court is more willing to permit legislative oversight of ancillary administrative functions. See Hagan & Van Camp, P.S. v. Kassler Escrow, Inc., 96 Wn.2d 443, 453, 635 P.2d 730 (1981); In re Bruen, 102 Wash. 472, 479, 172 P. 1152 (1918). Moreover, the court has permitted a broad range of legislative intrusions into matters of inherent judicial authority over the bar, including matters more central to the judicial functions of the bar than employment practices, such as the establishment of a board of bar examiners, Bruen, 102 Wash. at 477, minimum requirements for bar membership, Levy, 23 Wn.2d at 614, and recommendations for procedures for bar regulation, Graham v. State Bar Ass'n, 86 Wn.2d 624, 633, 548 P.2d 310 (1976); Schwab, 80 Wn.2d at 271.\nFinally, the court will avoid invalidating legislation on its face. See Zylstra, 85 Wn.2d at 748-49; Schwab, 80 Wn.2d at *914 271; Levy, 23 Wn.2d at 617. To this end, the court has permitted legislative regulation as long as the court retains final authority. See Graham, 86 Wn.2d at 633; Bruen, 102 Wash. at 477. Indeed, the only case holding a legislative action impermissibly usurped judicial authority occurred in In re Bruen, supra, where the court invalidated that portion of the State Bar Act delegating to the board of bar examiners the authority to issue final admission orders. Bruen, 102 Wash. at 479. Under PECBA the court retains both constitutional and statutory authority to protect itself from any undue executive encroachment by PERC. Public Empl. Relations Comm'n v. Kennewick, 99 Wn.2d 832, 840, 664 P.2d 1240 (1983); Zylstra, 85 Wn.2d at 748-49; RCW 41.56.165. As we have previously underscored, the facial constitutionality of PERC jurisdiction does not preclude a subsequent as applied challenge.\n[A] legislatively created bargaining scheme does not and cannot interfere with the ultimate power of the judiciary to administer its own affairs. Until and unless such a scheme interferes with the court's functioning, no separation-of-powers problem exists....\nZylstra, 85 Wn.2d at 749.\n\nIII\nBeyond the constitutional arguments, the majority decision departs from this court's historically strong protection of collective bargaining rights. We have particularly emphasized effective protection of collective bargaining rights includes access to PERC jurisdiction:\nPERC jurisdiction is essential for enforcement of the labor laws, since neither the NLRB nor any other agency has jurisdiction.... While some labor law provisions are enforceable, others are essentially administrative tasks, such as supervising union elections and selecting bargaining units. Some administrative agency must have discretion to administer the applicable law.\nPUD 1 v. Public Empl. Relations Comm'n, 110 Wn.2d 114, 119, 750 P.2d 1240 (1988) (quoting Nucleonics Alliance, Local Union 1-369 v. WPPSS, 101 Wn.2d 24, 35-36, 677 P.2d 108 (1984) (Utter, J., dissenting)). Denying Bar Association employees *915 PECBA protection leaves them in the very position we have denounced in prior cases, where\nemployee-employer disputes [are relegated] to whatever resolution method the employer is willing to agree to or else to a lawsuit, rather than to PERC with its expertise and ability to carry out the Act's mandate of uniform application of labor relations principles throughout public employment.\nPUD 1, 110 Wn.2d at 120; see also Kennewick, 99 Wn.2d at 842.\n\nIV\nIt is true the court must \"jealously\" guard its sphere of authority to maintain our constitutional structure of separation of powers. See Short v. Demopolis, 103 Wn.2d 52, 65, 691 P.2d 163 (1984). But we must pick our fights well. We should not take such quick offense from this legislative action when reconciliation is possible and results in stronger protection of collective bargaining rights.\nSMITH and MADSEN, JJ., concur with DOLLIVER, J.\nNOTES\n[*] Judge James A. Andersen is serving as a justice pro tempore of the Supreme Court pursuant to Const. art. 4, § 2(a) (amend. 38).\n[1] 122 Wn.2d 1119 (1993).\n[2] Final Bill Report, 1994 (HB 2641, ch. 207).\n[3] Seattle v. Ratliff, 100 Wn.2d 212, 215, 667 P.2d 630 (1983); Zylstra v. Piva, 85 Wn.2d 743, 754, 539 P.2d 823 (1975) (Utter, J., concurring).\n[4] See also Southcenter Joint Venture v. National Democratic Policy Comm., 113 Wn.2d 413, 425, 780 P.2d 1282 (1989). See generally Carrick v. Locke, 125 Wn.2d 129, 134-36, 882 P.2d 173 (1994); In re Juvenile Director, 87 Wn.2d 232, 238-48, 552 P.2d 163 (1976) (tracing the development of the separation of powers doctrine).\n[5] Zylstra, 85 Wn.2d at 754 (Utter, J., concurring).\n[6] Graham v. State Bar Ass'n, 86 Wn.2d 624, 631, 548 P.2d 310 (1976).\n[7] State ex rel. Schwab v. Washington State Bar Ass'n, 80 Wn.2d 266, 272, 493 P.2d 1237 (1972).\n[8] Agreed statement of facts, at 4. See also Graham v. State Bar Ass'n, 86 Wn.2d 624, 629-30, 548 P.2d 310 (1976).\n[9] See, e.g., Graham v. State Bar Ass'n, 86 Wn.2d at 633 (Legislature may not authorize a state audit of the Bar Association by the executive branch, for it is within the power of the court to make necessary rules and regulations governing the conduct of the bar); Schwab, 80 Wn.2d at 272 (Legislature's creation of an integrated bar, through enactment of the State Bar Act, RCW 2.48, did not require that the Bar Association be treated as an integral part of the executive branch of government with offices in Olympia).\n[10] See also Graham v. State Bar Ass'n, 86 Wn.2d at 633 (the regulation of the practice of law and the power to make rules and regulations governing the bar is vested exclusively in the Supreme Court); Hagan & Van Camp, P.S. v. Kassler Escrow, Inc., 96 Wn.2d 443, 453, 635 P.2d 730 (1981) (regulation of the practice of law is within the sole province of the judiciary); Seattle v. Ratliff, 100 Wn.2d at 215 (the court's power to regulate the practice of law in this state is not only well established but is inviolate as well); State ex rel. Schwab v. Washington State Bar Ass'n, 80 Wn.2d 266, 269, 493 P.2d 1237 (1972) (the court has sole jurisdiction over the practice of law).\n[11] Laws of 1993, ch. 76, § 1.\n[12] See, e.g., Zylstra v. Piva, supra, wherein we determined that legislation creating a collective bargaining scheme applicable to juvenile court employees did not violate the separation of powers doctrine, if limited, and so long as it did not interfere with the court's ultimate power to administer the courts of this state; Carrick v. Locke, supra.\n[13] Zylstra, 85 Wn.2d at 749-50. Hagan & Van Camp, 96 Wn.2d at 453 (since the regulation of the practice of law is within the sole province of the judiciary, encroachment by the Legislature may be held by the court to violate the separation of powers doctrine).\n[14] State v. Ryan, 103 Wn.2d 165, 691 P.2d 197 (1984).\n[15] In re Levy, 23 Wn.2d 607, 161 P.2d 651, 162 A.L.R. 805 (1945); In re Chi-Dooh Li, 79 Wn.2d 561, 488 P.2d 259 (1971).\n[16] In re Levy, 23 Wn.2d 607, 161 P.2d 651, 162 A.L.R. 805 (1945); In re Chi-Dooh Li, 79 Wn.2d 561, 488 P.2d 259 (1971).\n\n",
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"opinion_text": "\nAndersen, J.* —\nFacts of The Case\nIn this case we determine the constitutionality of a statute which was intended to nullify a general rule of court adopted by this court, and which directly and unavoidably conflicts with that rule of court. We hold that the statute in question, which declares the Washington State Bar Association a \"public employer” subject to the Public Employees’ Collective Bargaining Act, RCW 41.56, to be unconstitutional in that it violates the separation of powers doctrine.\nThis action grew out of a labor dispute between the Washington State Bar Association (Bar Association) and its employees. Our decision here is, however, not one which is in any way intended to affect labor law jurisprudence.\nInitially, it is important to clarify what this case is not about. It is not about the value of collective bargaining, or *903about the importance of maintaining good labor relations between the Bar Association and its employees. It is also not about the authority of the Legislature to enact general employment statutes that are applicable to the Bar Association. Nor is it about the merits of the arguments advanced by the respective participants in this labor dispute.\nThis is a constitutional case. What it does involve is one of the cardinal and fundamental principles of the American constitutional system, the separation of powers doctrine.\nThe pertinent facts are simple. In early 1991 several Bar Association employees attempted to organize, seeking representation by the United Food and Commercial Workers Union (Union) for purposes of collective bargaining. The Bar Association refused to recognize the Union as the collective bargaining representative of its employees. Then in November of 1991, the Union asked this court to change our General Rule (GR) 12, which outlines the purposes and the powers of the Bar Association. The suggested rule change amendment would have required the Bar Association to collectively bargain with its employees.\nOn October 8, 1992, this court declined to adopt the Union’s suggested rule change.\nDuring the 1993 legislative session, the Legislature enacted Engrossed House Bill (EHB) 1152 as follows:\nSec. 1. The legislature is committed to providing collective bargaining for all employees. However, the legislature is also mindful of the separations of powers and responsibilities among the branches of government. Therefore, the legislature strongly encourages the state supreme court to adopt collective bargaining for the employees of the Washington state bar association.\nSec. 2. RCW 41.56.020 and 1992 c 36 § 1 are each amended to read as follows:\nThis chapter shall apply to any county or municipal corporation, or any political subdivision of the state of Washington . . .. The Washington state supreme court may provide by rule that the Washington state bar association shall be considered a public employer of its employees.\nLaws of 1993, ch. 76, p. 218.\nThis court responded to that legislation by amending GR 12, the general rule governing the authority of the Bar Asso*904ciation. On December 2,1993, after carefully considering the matter and mindful of the Legislature’s recommendation, we added a new subsection (16) to our General Rule 12(b), giving the Bar Association’s Board of Governors the discretion to determine whether to collectively bargain with its employees.1 In an informational note to the amendment, this court recognized the Legislature’s 1993 enactment, stating:\nDuring the 1993 regular session EHB 1152 was passed. That legislation amends RCW 41.56.020 by providing that while recognizing the separation of powers and responsibilities in government, \"the legislature strongly encourages the state supreme court to adopt collective bargaining for the employees of the Washington state bar association”.\nThe amendment [to GR 12(b)] confers upon the Washington State Bar Association’s Board of Governors the authority, in its discretion, to adopt collective bargaining for employees of that association.\n122 Wn.2d 1119.\nGR 12, which we adopted in 1987, is divided into three parts. The first part, section (a), declares the purposes of the Bar Association. The second, section (b), sets forth the various actions which the Bar Association is authorized to take. The third, section (c), sets forth the actions which the Bar Association is prohibited from taking. The parts of the rule, including the recent amendment, that are pertinent here are the following:\n(a) Purposes; In General. The purposes of the Washington State Bar Association shall be to promote and aid in the effective administration of justice; to assist in the admission and discipline of members of the Bar Association; to foster and maintain high standards of competence, professionalism and ethics among its members; to promote the availability of legal services to all in need; to advise the public and its officials in matters relevant to these purposes and the professional interests of the Bar Association; to promote respect and understanding for our legal system; to promote the creation of voluntary associations of lawyers concerned with their members’ professional interests; to carry on programs of legal research and education; to provide a forum for the discussion of subjects pertaining to jurisprudence and the practice of law; to foster camaraderie among members of the Bar Association and good *905will between the Bar Association and the public; to promote the independence of the Bar Association and the judiciary of which it is a part; and to promote the interests of the legal profession.\n(b) Specific Activities Authorized. Among the specific Bar Association activities authorized by this rule and these stated purposes are:\n(16) Authorizing, in its discretion, collective bargaining for its employees.\nGR 12 (part).\nIn early 1994 the Legislature again addressed the issue. The Legislature noted that the court had amended GR 12(b) to give the Bar Association’s Board of Governors discretionary authority to adopt collective bargaining for its employees. It further recognized that this court has held that \"as a separate branch of government, it has inherent constitutional powers to control the bar association and its functions as part of its administration of the courts”.2 The Legislature nonetheless ignored this court’s actions, repealed the declaration set forth in EHB 1152, Laws of 1993, ch. 76, § 1, and amended RCW 41.56.020 to read as follows:\nThis chapter shall apply to any county or municipal corporation, or any political subdivision of the state of Washington. . .. The Washington state bar association shall be considered a public employer of its employees.\nLaws of 1994, ch. 297, p. 1881.\nThe effect of this new legislation was to remove the discretion which this court had granted the Board of Governors under GR 12(b)(16) by making collective bargaining mandatory.\nFollowing the enactment of the statute, and pursuant to RCW 41.56, the Bar Association employees petitioned the Public Employment Relations Commission (PERC) for a determination as to whether the bar’s employees desired to be represented by a labor organization for the purpose of collective bargaining. After PERC notified the Bar Association that it would investigate and administer the matter, the *906Bar Association filed a petition in this court seeking a writ of prohibition. This court has original jurisdiction in this matter pursuant to Const, art. 4, § 4 and RAP 16.2. The petition for writ of prohibition asks the court to prohibit PERC from assuming jurisdiction over the labor dispute between the bar and its employees and further asks us to declare the 1994 amendment to the statute unconstitutional.\nOne issue is determinative of this case.\nIssue\nIs legislation which directly and unavoidably conflicts with a court rule governing Bar Association powers and responsibilities constitutional?\nDecision\nIssue.\nConclusion. Legislation which directly and unavoidably conflicts with a rule of court governing Bar Association powers and responsibilities is unconstitutional as it violates the separation of powers doctrine; such legislation is therefore void.\nWashington’s constitution, Const, art. 4, § 1 vests the judicial power of the State in a separate branch of government — the judiciary. 3 The importance of the separation of powers doctrine was stated in Washington State Motorcycle Dealers Ass’n v. State, 111 Wn.2d 667, 674-75, 763 P.2d 442 (1988) (quoting 16 Am. Jur. 2d Constitutional Law § 296, at 808, § 309, at 829 (1979))4 as follows:\nThe importance of the case before us is that it deals directly with one of the cardinal and fundamental principles of the American constitutional system, both state and federal: the separation of powers doctrine. \"It has been declared that the division of governmental powers into the executive, legislative, and judicial represents probably the most important principle *907of government declaring and guaranteeing the liberties of the people, and preventing the exercise of autocratic power, and that it is a matter of fundamental necessity, and is essential to the maintenance of a republican form of government.” . . . In this same connection, it is also the law that “American courts are constantly wary not to trench upon the prerogatives of other departments of government or to arrogate to themselves any undue powers, lest they disturb the balance of power; and this principle has contributed greatly to the success of the American system of government and to the strength of the judiciary itself.”\n(Footnotes omitted.) It may be noted parenthetically that in the Motorcycle Dealers case, we unhesitatingly applied the separation of powers doctrine to protect the authority of the legislative branch of our state government against encroachment by the State’s executive branch.\nIn furtherance of this principle of separation of powers, this court has refused to interfere with the executive and legislative branches of government while at the same time insisting that those branches of government not usurp the functions of the judicial branch of government.5\nOne of the basic functions of the judicial branch of government is the regulation of the practice of law.6 The Bar Association is sui generis and many of its functions are directly related to and in aid of the judicial branch of government.7 It is important to keep in mind in this connection that the Bar Association does not receive any appropriation from the Legislature or any other public body. It is funded entirely by mandatory membership licensing fees and various user fees, including continuing legal education (CLE) revenues, bar examination fees, practice section dues and Washington State Bar News advertising revenues.8 This court’s control over Bar Association functions is not limited to admissions *908and discipline of lawyers. The control extends to ancillary administrative functions as well.9\nThe practice of law is so intimately connected with the exercise of judicial power in the administration of justice that the right to define and regulate the practice naturally and logically belongs to the judicial department of the state government. Under the doctrine of separation of powers the courts have inherent power to regulate admission to the practice of law, to oversee the conduct of attorneys as officers of the court, and to control and supervise the practice of law generally, whether in or out of court. It is a prerogative of the judicial department to regulate the practice of law. However, the state has a substantial interest in maintaining a competent bar, and the legislature, under the police power, may act to protect the public interest, but in so doing, it acts in aid of the judiciary and does not supersede or detract from the power of the courts.\n(Footnotes omitted. Italics ours.) 7 Am. Jur. 2d Attorneys at Law § 2, at 55-56 (2d ed. 1980).10\nIndeed, the Legislature itself expressly recognized the ultimate power of the court to regulate the Bar Association when it enacted its 1993 legislation relating to collective bargaining by Bar Association employees.11\nWe have recognized that it is sometimes possible to have an overlap of responsibility in governing the administrative aspects of court-related functions.12 However, a legislative *909enactment may not impair this court’s functioning or encroach upon the power of the judiciary to administer its own affairs. The ultimate power to regulate court-related functions, including the administration of the Bar Association, belongs exclusively to this court.13\nIn the present case, the Legislature has attempted to nullify a general rule adopted by this court by enacting legislation which directly and unavoidably conflicts with that rule. The rule, GR 12(b)(16), grants the Bar Association’s Board of Governors discretion to determine whether to collectively bargain with its employees. The legislation, RCW 41.56.020, takes that discretion away.\nWhere a court rule and a statute conflict, we will attempt to read the two enactments in such a way that they can be harmonized.14 However, where they cannot be harmonized, the court rule will prevail.15 PERC and the union both acknowledged this rule of law during oral argument before this court.\nIt is not possible to harmonize GR 12(b)(16) with RCW 41.56.020, as amended in 1994. The court rule, which gives the Board of Governors discretion to determine whether to collectively bargain with employees, cannot be reconciled with legislation that nullifies that discretion and makes collective bargaining mandatory. The rule therefore prevails.16\nOnce this court has adopted a rule concerning a matter related to the exercise of its inherent power to control the bar, the Legislature may not thereafter reverse or override the court’s rule.\n*910The Legislature’s enactment examined here unconstitutionally encroached upon the powers of this court. The 1994 amendment of RCW 41.56.020 violates the separation of powers doctrine and is void. PERC therefore has no jurisdiction to act with respect to the Bar Association.\nThe petition for a writ of prohibition is granted.\nDurham, C.J., Utter, Guy, and Johnson, JJ., and Brachtenbach, J. Pro Tern., concur.\n\nJudge James A. Andersen is serving as a justice pro tempore of the Supreme Court pursuant to Const, art. 4, § 2(a) (amend. 38).\n\n\n 122 Wn.2d 1119 (1993).\n\n\nFinal Bill Report, 1994 (HB 2641, ch. 207).\n\n\nSeattle v. Ratliff, 100 Wn.2d 212, 215, 667 P.2d 630 (1983); Zylstra v. Piva, 85 Wn.2d 743, 754, 539 P.2d 823 (1975) (Utter, J., concurring).\n\n\nSee also Southcenter Joint Venture v. National Democratic Policy Comm., 113 Wn.2d 413, 425, 780 P.2d 1282 (1989). See generally Carrick v. Locke, 125 Wn.2d 129, 134-36, 882 P.2d 173 (1994); In re Juvenile Director, 87 Wn.2d 232, 238-48, 552 P.2d 163 (1976) (tracing the development of the separation of powers doctrine).\n\n\nZylstra, 85 Wn.2d at 754 (Utter, J., concurring).\n\n\nGraham v. State Bar Ass’n, 86 Wn.2d 624, 631, 548 P.2d 310 (1976).\n\n\nState ex rel. Schwab v. Washington State Bar Ass’n, 80 Wn.2d 266, 272, 493 P.2d 1237 (1972).\n\n\nAgreed statement of facts, at 4. See also Graham v. State Bar Ass’n, 86 Wn.2d 624, 629-30, 548 P.2d 310 (1976).\n\n\nSee, e.g., Graham, v. State Bar Ass’n, 86 Wn.2d at 633 (Legislature may not authorize a state audit of the Bar Association by the executive branch, for it is within the power of the court to make necessary rules and regulations governing the conduct of the bar); Schwab, 80 Wn.2d at 272 (Legislature’s creation of an integrated bar, through enactment of the State Bar Act, RCW 2.48, did not require that the Bar Association be treated as an integral part of the executive branch of government with offices in Olympia).\n\n\nSee also Graham v. State Bar Ass’n, 86 Wn.2d at 633 (the regulation of the practice of law and the power to make rules and regulations governing the bar is vested exclusively in the Supreme Court); Hagan & Van Camp, P.S. v. Kassler Escrow, Inc., 96 Wn.2d 443, 453, 635 P.2d 730 (1981) (regulation of the practice of law is within the sole province of the judiciary); Seattle v. Ratliff, 100 Wn.2d at 215 (the court’s power to regulate the practice of law in this state is not only well established but is inviolate as well); State ex rel. Schwab v. Washington State Bar Ass’n, 80 Wn.2d 266, 269, 493 P.2d 1237 (1972) (the court has sole jurisdiction over the practice of law).\n\n\nLaws of 1993, ch. 76, § 1.\n\n\nSee, e.g., Zylstra v. Piva, supra, wherein we determined that legislation creating a collective bargaining scheme applicable to juvenile court employees *909did not violate the separation of powers doctrine, if limited, and so long as it did not interfere with the court’s ultimate power to administer the courts of this state; Car-rick v. Locke, supra.\n\n\nZylstra, 85 Wn.2d at 749-50. Hagan & Van Camp, 96 Wn.2d at 453 (since the regulation of the practice of law is within the sole province of the judiciary, encroachment by the Legislature may be held by the court to violate the separation of powers doctrine).\n\n\nState v. Ryan, 103 Wn.2d 165, 691 P.2d 197 (1984).\n\n\nIn re Levy, 23 Wn.2d 607, 161 P.2d 651, 162 A.L.R. 805 (1945); In re Chi-Dooh Li, 79 Wn.2d 561, 488 P.2d 259 (1971).\n\n\nIn re Levy, 23 Wn.2d 607, 161 P.2d 651, 162 A.L.R. 805 (1945); In re Chi-Dooh Li, 79 Wn.2d 561, 488 P.2d 259 (1971).\n\n",
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"opinion_text": "\nDollxver, J.\n(dissenting) — The majority correctly states the law of this case: where a legislative action directly conflicts with a court rulé in an area of inherent judicial authority, the legislative action must fall as a violation of separation of powers. The issue of this case, however, is not the accuracy of that rule. Rather, the issue presented is whether such a conflict exists on the facts of the case: does chapter 297 of the Laws of 1994 (the Amendment), amending the Public Employees’ Collective Bargaining Act (PECBA) (RCW 41.56.020), directly conflict with General Rule (GR) 12(b)-(16)? I would hold no such conflict exists.\nI\nGuiding the court’s consideration of an alleged conflict between statutory provision and judicial rule is the principle that \"[a]pparent conflicts between a court rule and a statutory provision should be harmonized, and both given effect if possible.” Nearing v. Golden State Foods Corp., 114 Wn.2d 817, 821, 792 P.2d 500 (1990). Applying this principle, we have consistently avoided striking down such a statute. Instead, the court has construed the statute so that no conflict existed, In re Chi-Dooh Li, 79 Wn.2d 561, 566, 488 P.2d 259 (1971); In re Levy, 23 Wn.2d 607, 617, 161 P.2d 651, 162 A.L.R. 805 (1945), or acquiesced to the conflicting action of the competing branch while retaining ultimate authority to negate future intrusions, State ex rel. Schwab v. Washington State Bar Ass’n, 80 Wn.2d 266, 271, 493 P.2d 1237 (1972).\n*911The majority decides the legislative and judicial acts here cannot be harmonized because GR 12(b)(16) permits collective bargaining at the Bar Association’s \"discretion”, while the Amendment makes it \"mandatory”. I would interpret both the scope of the Bar Association’s \"discretion” and the impact of PECBA’s \"mandatory” collective bargaining differently than the majority has. Because this reasonable interpretation of the conflicting actions permits harmonization, I would so hold.\nThe discretion granted in GR 12(b)(16) simply acknowledges that the Bar Association, not the court, will act as the employer in collective bargaining decisionmaking. This discretion, however, does not grant the Bar Association unfettered freedom over employment practices. The Bar Association is already subject to various state employment statutes administered by executive agencies, including the state workers’ compensation act, RCW 51.12, wage and hour laws, RCW 49.46, the Employment Security Act, RCW 50.04, and the state Law Against Discrimination, RCW 49.60. Likewise, the Bar Association is treated as a public employer for the purposes of state employment programs, such as the Public Employees’ Retirement System, WAC 415-02, and the Washington State Health Care Authority administered health insurance plans, WAC 182-08.\nThe majority unjustifiably fears the term \"mandatory” without investigating the true impact of mandatory collective bargaining: PECBA actually imposes very little. The statute would guide the Bar Association’s employment practices through three points: the initial representation election, RCW 41.56.070; certification of the collective bargaining representative, RCW 41.56.060, .080; and, if necessary, adjudication of unfair labor complaints, RCW 41.56.160, RCW 41.58.020. The Bar Association agreed prior to the initiation of this case to hold an election and to the composition of the bargaining unit for certification. Thus, the Amendment merely designates the Public Employment Relations Commission (PERC) as the supervisor of this process. RCW 41.56.070. The court retains *912authority to review PERC’s nonadjudicatory decisions as applied. See International Ass’n of Fire Fighters, Local 1052 v. Public Empl. Relations Comm’n, 29 Wn. App. 599, 602, 630 P.2d 470, review denied, 96 Wn.2d 1004 (1981).\nIf the Bar Association employees elect a bargaining representative, by no means a certainty 4 years after the original employees expressed interest in unionizing, the certified representative and the Bar Association will negotiate a collective bargaining agreement completely independent of PECBA. The Bar Association retains full discretion over the contours of any agreement; PERC has no authority to compel contract terms, including whether to appoint PERC as grievance arbitrator. Indeed, PECBA would have no other application to the Bar Association’s activities unless an unfair labor dispute arose. Even in that case, PERC’s authority is primarily procedural, confined to factfinding and applying PECBA. RCW 41.58.020. The agency lacks prosecuto-rial or independent investigatory authority, and only a court may enforce a PERC order. RCW 41.56.160(3).\nThus, PECBA would set the rules of collective bargaining and appoint the referee, but would not compel an outcome. It is evident the Bar Association would retain full discretion over the substantive aspects of collective bargaining. The only \"mandatory” effect of PECBA is its requirement to engage in the process, a process to which the Bar Association has agreed.\nH\nNot only are the statute and judicial rule reconcilable, PECBA does not constitute an impermissible intrusion into judicial function by either the legislative or executive branch.\nThe court has asserted a constitutional framework where \"complete separation was never intended and overlapping functions were created deliberately.” In re Juvenile Director, 87 Wn.2d 232, 242, 552 P.2d 163 (1976). Rather, separation of powers must be viewed concurrently with the system of checks and balances, creating a plan of overlapping functions that permits even some direct control by one branch *913over another. Juvenile Director, 87 Wn.2d at 242-43; see also Seattle Sch. Dist. 1 v. State, 90 Wn.2d 476, 506, 585 P.2d 71 (1978); Moran v. State, 88 Wn.2d 867, 873, 568 P.2d 758 (1977). Thus, we have sought to balance the constitutional value of autonomy with the competing value of reciprocity. Juvenile Director, 87 Wn.2d at 248.\nHarmonious cooperation among the three branches is fundamental to our system of government. Only if this cooperation breaks down is it necessary for the judiciary to exercise inherent power to sustain its separate integrity. . . . The question to be asked is not whether two branches of government engage in coinciding activities, but rather whether the activity of one branch threatens the independence or integrity or invades the prerogatives of another. . . .\nZylstra v. Piva, 85 Wn.2d 743, 750, 539 P.2d 823 (1975).\nA review of our previous decisions reveals three determinative factors in a separation of powers challenge to a legislative intrusion into the judicial sphere. First, the court has been willing to go a long distance to avoid declaring a separation of powers violation. The court will, as we should here, attempt to reconcile any apparent conflicts. See Schwab, 80 Wn.2d at 271; Chi-Dooh Li, 79 Wn.2d at 566; Levy, 23 Wn.2d at 617.\nSecond is the centrality of the judicial function: the court is more willing to permit legislative oversight of ancillary administrative functions. See Hagan & Van Camp, P.S. v. Kassler Escrow, Inc., 96 Wn.2d 443, 453, 635 P.2d 730 (1981); In re Bruen, 102 Wash. 472, 479, 172 P. 1152 (1918). Moreover, the court has permitted a broad range of legislative intrusions into matters of inherent judicial authority over the bar, including matters more central to the judicial functions of the bar than employment practices, such as the establishment of a board of bar examiners, Bruen, 102 Wash. at 477, minimum requirements for bar membership, Levy, 23 Wn.2d at 614, and recommendations for procedures for bar regulation, Graham v. State Bar Ass’n, 86 Wn.2d 624, 633, 548 P.2d 310 (1976); Schwab, 80 Wn.2d at 271.\nFinally, the court will avoid invalidating legislation on its face. See Zylstra, 85 Wn.2d at 748-49; Schwab, 80 Wn.2d at *914271; Levy, 23 Wn.2d at 617. To this end, the court has permitted legislative regulation as long as the court retains final authority. See Graham, 86 Wn.2d at 633; Bruen, 102 Wash. at 477. Indeed, the only case holding a legislative action impermissibly usurped judicial authority occurred in In re Bruen, supra, where the court invalidated that portion of the State Bar Act delegating to the board of bar examiners the authority to issue final admission orders. Bruen, 102 Wash. at 479. Under PECBA the court retains both constitutional and statutory authority to protect itself from any undue executive encroachment by PERC. Public Empl. Relations Comm’n v. Kennewick, 99 Wn.2d 832, 840, 664 P.2d 1240 (1983); Zylstra, 85 Wn.2d at 748-49; RCW 41.56.165. As we have previously underscored, the facial constitutionality of PERC jurisdiction does not preclude a subsequent as applied challenge.\n[A] legislatively created bargaining scheme does not and cannot interfere with the ultimate power of the judiciary to administer its own affairs. Until and unless such a scheme interferes with the court’s functioning, no separation-of-powers problem exists. . . .\nZylstra, 85 Wn.2d at 749.\nIll\nBeyond the constitutional arguments, the majority decision departs from this court’s historically strong protection of collective bargaining rights. We have particularly emphasized effective protection of collective bargaining rights includes access to PERC jurisdiction:\nPERC jurisdiction is essential for enforcement of the labor laws, since neither the NLRB nor any other agency has jurisdiction. . . . While some labor law provisions are enforceable, others are essentially administrative tasks, such as supervising union elections and selecting bargaining units. Some administrative agency must have discretion to administer the applicable law.\nPUD 1 v. Public Empl. Relations Comm’n, 110 Wn.2d 114, 119, 750 P.2d 1240 (1988) (quoting Nucleonics Alliance, Local Union 1-369 v. WPPSS, 101 Wn.2d 24, 35-36, 677 P.2d 108 (1984) (Utter, J., dissenting)). Denying Bar Association em*915ployees PECBA protection leaves them in the very position we have denounced in prior cases, where\nemployee-employer disputes [are relegated] to whatever resolution method the employer is willing to agree to or else to a lawsuit, rather than to PERC with its expertise and ability to carry out the Act’s mandate of uniform application of labor relations principles throughout public employment.\nPUD 1, 110 Wn.2d at 120; see also Kennewick, 99 Wn.2d at 842.\nIV\nIt is true the court must \"jealously” guard its sphere of authority to maintain our constitutional structure of separation of powers. See Short v. Demopolis, 103 Wn.2d 52, 65, 691 P.2d 163 (1984). But we must pick our fights well. We should not take such quick offense from this legislative action when reconciliation is possible and results in stronger protection of collective bargaining rights.\nSmith and Madsen, JJ., concur with Dolliver, J.\n",
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Washington Supreme Court
|
Washington Supreme Court
|
S
|
Washington, WA
|
2,604,281 |
Mosk, Panelli
| 1993-01-21 | false |
brown-v-poway-unified-school-district
|
Brown
|
Brown v. Poway Unified School District
|
FRANCIS BROWN, Plaintiff and Appellant, v. POWAY UNIFIED SCHOOL DISTRICT, Defendant and Respondent
|
Counsel, James H. Miller and Douglas A. Stoodt for Plaintiff and Appellant., Stutz, Gallagher & Artiano, Daniel R. Shinoff, Jack M. Sleeth, Jr., Susan L. Mason, Richard C. Thomas and Sidney A. Stutz for Defendant and Respondent., John W. Witt, City Attorney (San Diego), Eugene P. Gordon, Chief Deputy City Attorney, Leslie J. Girard, Deputy City Attorney, Fred J. Hiestand, Liebman, Reiner & McNeil and Joseph R. Zamora as. Amici Curiae on behalf of Defendant and Respondent.
| null | null | null | null | null | null | null | null | null | null | 65 |
Published
| null |
<docketnumber id="b856-3">
[No. S023272.
</docketnumber><decisiondate id="ABK">
Jan. 21, 1993.]
</decisiondate><br><parties id="b856-4">
FRANCIS BROWN, Plaintiff and Appellant, v. POWAY UNIFIED SCHOOL DISTRICT, Defendant and Respondent.
</parties><br><attorneys id="b859-6">
<span citation-index="1" class="star-pagination" label="823">
*823
</span>
Counsel
</attorneys><br><attorneys id="b859-7">
James H. Miller and Douglas A. Stoodt for Plaintiff and Appellant.
</attorneys><br><attorneys id="b859-8">
Stutz, Gallagher & Artiano, Daniel R. Shinoff, Jack M. Sleeth, Jr., Susan L. Mason, Richard C. Thomas and Sidney A. Stutz for Defendant and Respondent.
</attorneys><br><attorneys id="b859-9">
John W. Witt, City Attorney (San Diego), Eugene P. Gordon, Chief Deputy City Attorney, Leslie J. Girard, Deputy City Attorney, Fred J. Hiestand, Liebman, Reiner & McNeil and Joseph R. Zamora as. Amici Curiae on behalf of Defendant and Respondent.
</attorneys>
|
[
"843 P.2d 624",
"4 Cal. 4th 820",
"15 Cal. Rptr. 2d 679"
] |
[
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"opinion_text": "\n4 Cal. 4th 820 (1993)\n843 P.2d 624\n15 Cal. Rptr. 2d 679\nFRANCIS BROWN, Plaintiff and Appellant,\nv.\nPOWAY UNIFIED SCHOOL DISTRICT, Defendant and Respondent.\nDocket No. S023272.\nSupreme Court of California.\nJanuary 21, 1993.\n*823 COUNSEL\nJames H. Miller and Douglas A. Stoodt for Plaintiff and Appellant.\nStutz, Gallagher & Artiano, Daniel R. Shinoff, Jack M. Sleeth, Jr., Susan L. Mason, Richard C. Thomas and Sidney A. Stutz for Defendant and Respondent.\nJohn W. Witt, City Attorney (San Diego), Eugene P. Gordon, Chief Deputy City Attorney, Leslie J. Girard, Deputy City Attorney, Fred J. Hiestand, Liebman, Reiner & McNeil and Joseph R. Zamora as Amici Curiae on behalf of Defendant and Respondent.\nOPINION\nPANELLI, J.\nPlaintiff sued a public entity to recover for personal injuries after he slipped and fell on public property. The Court of Appeal held that the doctrine of res ipsa loquitur precluded summary judgment for the public entity even though there was no evidence to show how the slippery object came to be on the floor or that the public entity had notice of the hazard. We reverse.\n\nBACKGROUND\nPlaintiff Francis Brown sued defendant Poway Unified School District (hereafter District) after he slipped and fell on the District's property. *824 Brown, a self-employed computer repairman, was delivering computers to the District's facilities building at 9:30 a.m. on Monday morning. Brown parked his van near a door and, with the help of a District employee, made five trips down a hallway between the van and the room where the computers were stored. On the last trip back to his van, Brown slipped and fell. The employees who helped Brown to his feet found a fresh slice of lunch meat stuck to the sole of his shoe.\nBrown sued the District. The ensuing discovery generated declarations or deposition testimony from every person known to have entered the hallway between Friday afternoon, when the floor was swept, and Monday morning, when the accident occurred. These persons included the janitor who swept the floor, the employee who helped Brown unload computers and who had also opened the building earlier that morning, and a maintenance clerk. Although only employees of the District possessed keys to the building, nonemployees were often present. Indeed, three nonemployees had been in the hallway the morning of the accident: Brown, himself; a vendor who was in the building to repair tools; and a school bus driver who also worked for a vendor of telecommunications equipment. No one saw lunch meat on the hallway floor prior to the accident.\nOutside the building there was a picnic table where employees sometimes ate their lunches. However, no one had seen anyone eating at the table or in the hallway on the morning the accident occurred.\nBased on the uncontradicted evidence, the District moved for summary judgment under Government Code section 835.[1] This statute sets out the conditions under which \"a public entity is liable for injury caused by a dangerous condition of its property....\" (Ibid.) The statute requires a plaintiff to prove, among other things, that either of two conditions is true: \"(a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or [¶] (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.\" (Ibid.)\nBecause there was no evidence that the District had notice of the allegedly dangerous condition, the superior court correctly ruled that the District could not be liable under subdivision (b). (§ 835, subd. (b).) Brown does not challenge this ruling.\nThe District also moved for summary judgment under subdivision (a), reasoning that there was no evidence to show that an employee of the *825 District had created the allegedly dangerous condition. (See § 835, subd. (a).) In opposition, Brown argued that the doctrine of res ipsa loquitur applied and that, because the doctrine permits the trier of fact to presume negligence, summary judgment was inappropriate. The trial court rejected Brown's argument, granted the motion for summary judgment, and entered judgment for the District.\nThe Court of Appeal reversed. The court held both that the doctrine of res ipsa loquitur applied under the facts of the case and that the resulting presumption of negligence established a prima facie case under section 835, subdivision (a). We granted review to consider these issues.\n\nDISCUSSION\n\nA. Application of the Res Ipsa Loquitur Doctrine.\n\n(1a) The first question before us is whether the Court of Appeal correctly applied the doctrine of res ipsa loquitur to the undisputed evidence. The question has this significance: Brown, in order to recover damages from the District, must prove that \"[a] negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition.\" (§ 835, subd. (a).) Because there is no evidence that the lunch meat came to be on the floor through an employee's negligence, the District is entitled to summary judgment unless the doctrine of res ipsa loquitur would permit a jury to infer that fact.\nThe doctrine of res ipsa loquitur is too familiar to warrant a lengthy explanation. In brief, certain kinds of accidents are so likely to have been caused by the defendant's negligence that one may fairly say \"the thing speaks for itself.\" The Latin equivalent of this phrase, \"res ipsa loquitur,\" was first applied to a barrel of flour that rolled out of the window of the defendant's warehouse onto the plaintiff. (Byrne v. Boadle (1863) 159 Eng.Rep. 299, 300.) As later courts repeated the phrase, it evolved into the name of a rule for determining whether circumstantial evidence of negligence is sufficient. The procedural and evidentiary consequences that follow from the conclusion that an accident \"speaks for itself\" vary from jurisdiction to jurisdiction.\n(2) In California, the doctrine of res ipsa loquitur is defined by statute as \"a presumption affecting the burden of producing evidence.\" (Evid. Code, § 646, subd. (b).) The presumption arises when the evidence satisfies three conditions: \"`(1) the accident must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an *826 agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.'\" (Ybarra v. Spangard (1944) 25 Cal. 2d 486, 489 [154 P.2d 687, 162 A.L.R. 1258], quoting Prosser, Torts, p. 295.) A presumption affecting the burden of producing evidence \"require[s] the trier of fact to assume the existence of the presumed fact\" unless the defendant introduces evidence to the contrary. (Evid. Code, § 604; see also id., § 646, subd. (c).) The presumed fact, in this context, is that \"a proximate cause of the occurrence was some negligent conduct on the part of the defendant....\" (Id., § 646, subd. (c)(1).) If the defendant introduces \"evidence which would support a finding that he was not negligent or that any negligence on his part was not a proximate cause of the occurrence,\" the trier of fact determines whether defendant was negligent without regard to the presumption, simply by weighing the evidence. (Id., § 646, subd. (c); see also id., § 604.)\nExperience teaches that slips and falls are not so likely to be the result of negligence as to justify a presumption to that effect. As Prosser and Keeton explain, \"there are many accidents which, as a matter of common knowledge, occur frequently enough without anyone's fault.... [A]n ordinary slip and fall ... will not in [itself] justify the conclusion that negligence is the most likely explanation; and to such events res ipsa loquitur does not apply.\" (Prosser & Keeton, Torts (5th ed. 1984) § 39, p. 246.) This is true even when the fall is associated with a slippery object, because objects all too often appear on floors without sufficient explanation. For this reason, \"something slippery on the floor affords no res ipsa case against the owner of the premises, unless it is shown to have been there long enough so that he should have discovered and removed it.\" (Id., at pp. 255-256.)\n(1b) This common wisdom is reflected in a legion of cases from many jurisdictions declaring as a general rule that res ipsa loquitur does not apply to slip and fall cases.[2] The analysis in Oldenburg v. Sears, Roebuck & Co., supra, 152 Cal. App. 2d 733, in which the plaintiff slipped on a piece of *827 chalk, is typical: \"The burden is on the plaintiff to prove every essential fact on which she relies [citation]. This burden is not met merely by proof that plaintiff invitee stepped on something while on invitor's premises and thereby was caused to fall and receive injuries, for `[n]o inference of negligence arises based simply upon proof of a fall upon the owner's floor. The doctrine of res ipsa loquitur is not applicable to such cases.' [Citations]\" (Id., at p. 741.)\nWhile we need not go so far as to say that res ipsa loquitur can never apply to a slip and fall, the evidence in this case fittingly illustrates why such an occurrence ordinarily does not \"speak for itself.\" The lunch meat that apparently caused the accident went undetected until Brown fell; afterward, it was found stuck to the sole of his shoe. To be sure, the lunch meat might have been dropped by an employee, but it might also have been dropped by a visitor, tracked in from the outside or from Brown's own van, transported by an animal, or fallen from an object carried down the hall, even from one of the computers that Brown was delivering. Some of these explanations do not presuppose negligence, and none is inherently more probable than the others. In short, there is no basis whatever for a finding that either of the doctrine's first two conditions existed, i.e., (1) that the accident was of a kind which ordinarily does not occur in the absence of someone's negligence, or (2) that it was caused by an agency or instrumentality within the defendant's exclusive control.\nFrom this perspective, the case is practically identical with Gold v. Arizona Realty etc. Co., supra, 12 Cal. App. 2d 676, in which the plaintiff slipped on a foreign substance in the defendant's apartment building. The court held that res ipsa loquitur did not apply because \"[t]he mere fact that plaintiff tripped and fell downstairs does not of itself create a situation in which the doctrine can be invoked. [Citation.] It was not shown that the `substance' which caused plaintiff's fall had been on the stairway any length of time or that it had been left there by an agent of defendant. [Citation.] To determine how the `substance' became attached to plaintiff's shoe one must enter the field of conjecture. It may have been picked up from the street as *828 she entered the apartment house or it may have dropped on the stairway by someone not in defendant's employ.\" (Id., at p. 677.)\nIn the case before us, one would also have to enter the field of conjecture to determine how lunch meat came to be underneath Brown's foot. That is what the Court of Appeal appears to have done. To support its conclusion that Brown's accident was of a type that would not ordinarily occur in the absence of negligence, the court reasoned that \"[s]omeone must have dropped the lunch meat on the hallway floor.\" Perhaps so, perhaps not. The evidence is silent. But even if one conjectures that it was dropped, one must pile conjecture upon conjecture to decide that an employee was responsible. The Court of Appeal also asserted that \"[c]ommon experience indicates Brown probably would not have slipped on lunch meat in the hallway in the absence of someone's negligence.\" However, this assertion both contradicts the nearly universal experience reflected in judicial opinions (see the cases cited in fn. 2, ante) and overlooks equally probable explanations of the accident.\nConjecture also appears to underlie the Court of Appeal's conclusion that the lunch meat was under the District's exclusive control. Even granting the premise that the concept of exclusive control is somewhat flexible, and that \"the plaintiff need not exclude all other persons who might possibly have been responsible\" (Zentz v. Coca Cola Bottling Co. (1952) 39 Cal. 2d 436, 443-444 [247 P.2d 344]), the evidence in this case still does not support the necessary conclusion that \"it is more probable than not that the injury was the result of the defendant's negligence.\" (Id., at p. 443, first italics added.)\nAccordingly, the Court of Appeal erred in holding that the evidence was sufficient to raise a presumption of negligence under the doctrine of res ipsa loquitur. Because there is no evidence to show that an employee of the District created the allegedly dangerous condition (§ 835, subd. (a)), the superior court's order granting the District's motion for summary judgment was correct.[3]\n\nB. Interpretation of Section 835.\n\nAs we have discussed, the Court of Appeal erred in holding that the facts of this case satisfied the requirements of the res ipsa loquitur doctrine. This was not, however, the only error in the decision below. (3a) It was also *829 incorrect to hold that plaintiff Brown could use res ipsa loquitur to establish a prima facie case against the District under section 835. This additional error independently requires the judgment to be reversed.\nBrown's suit against the District is not an ordinary negligence case; it is an action under section 835. This is because a public entity is not liable for injuries except as provided by statute (§ 815) and because section 835 sets out the exclusive conditions under which a public entity is liable for injuries caused by a dangerous condition of public property. (4) \"[T]he intent of the [Tort Claims Act] is not to expand the rights of plaintiffs in suits against governmental entities, but to confine potential governmental liability to rigidly delineated circumstances: immunity is waived only if the various requirements of the act are satisfied.\" (Williams v. Horvath (1976) 16 Cal. 3d 834, 838 [129 Cal. Rptr. 453, 548 P.2d 1125].)\nSection 835 declares that, \"[e]xcept as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: [¶] (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or [¶] (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.\"\nBecause there was no evidence that the District had notice of the allegedly dangerous condition, the superior court correctly ruled that the District could not be liable under section 835, subdivision (b). Brown does not challenge this ruling. Instead, he argues that an employee of the district \"created the dangerous condition\" within the meaning of subdivision (a). Based on the assumption that the doctrine of res ipsa loquitur applies, Brown argues that the resulting presumption of negligence satisfies the requirements of liability under subdivision (a).\nIn opposition, the District argues that the res ipsa loquitur presumption does not satisfy the conditions for holding a public entity liable under subdivision (a). According to the District, the Legislature did not intend to subject public entities to liability for all types of employee negligence. Instead, the Legislature limited the liability of public entities to cases in which a public employee \"created\" the dangerous condition. (§ 835, subd. (a).) According to the District, the Legislature did not require that a public *830 entity have notice of a dangerous condition \"created\" by a public employee only because, in such cases, it is fair to presume that the entity has notice. Thus, the statutory term \"created\" must be understood to require the type of involvement by a public employee that would justify a presumption of notice. Because res ipsa loquitur can apply even without such involvement by a public employee, the doctrine does not, according to the District, satisfy the conditions of liability under subdivision (a).\nBrown reads another provision of the Tort Claims Act, namely section 830.5, as an express legislative declaration that the doctrine of res ipsa loquitur can be used to establish a public entity's liability. (5a) Section 830.5 provides that, \"[e]xcept where the doctrine of res ipsa loquitur is applicable, the happening of the accident which results in the injury is not in and of itself evidence that public property was in a dangerous condition.\" (§ 830.5, subd. (a).) The District, however, reads the statute more narrowly to mean that res ipsa loquitur can be used to show that \"public property was in a dangerous condition\" (ibid.; cf. § 830, subd. (a) [definition of \"dangerous condition\"]) but not to satisfy the other elements of liability.\nBecause the statute is ambiguous, we consult the legislative history. (Kennedy Wholesale, Inc. v. State Bd. of Equalization (1991) 53 Cal. 3d 245, 250 [279 Cal. Rptr. 325, 806 P.2d 1360].) The history begins in 1961, when this court held that the doctrine of sovereign immunity would no longer protect public entities from civil liability for their torts. (Muskopf v. Corning Hospital Dist. (1961) 55 Cal. 2d 211 [11 Cal. Rptr. 89, 359 P.2d 457].) The Legislature responded by suspending the decision's effect (Stats. 1961, ch. 1404, pp. 3209-3210) and by directing the California Law Revision Commission (hereafter Commission) to conduct a study of whether the doctrine of sovereign immunity should be abolished or revised. Following extensive research, the Commission published a recommendation (Recommendation Relating to Sovereign Immunity, No. 1, Tort Liability of Public Entities and Public Employees, 4 Cal. Law Revision Com. Rep. (Jan. 1963) p. 801), which became the Tort Claims Act (Stats. 1963, ch. 1681, p. 3266).\nSection 830.5, the only provision of the Tort Claims Act that mentions res ipsa loquitur, was added to the proposed act by the Senate. (1 Sen. J. (1963 Reg. Sess.) p. 518 [Sen. Bill No. 42, Amend. No. 19].) The Senate explained the amendment's purpose with this comment: \"Subdivision (a) of [section 830.5] makes applicable to public entities the same rule that applies in actions against private persons. It overrules cases that indicate that the happening of the accident is evidence that public property was in a dangerous condition. However, the section does not prevent the use of the doctrine *831 of res ipsa loquitur in appropriate cases.\" (Sen. com. comment to § 830.5, reprinted at 32 West's Ann. Gov. Code (1980) at p. 281.)\nThus, the Senate amendment dealing with res ipsa loquitur was expressly intended to abrogate a rule to the effect that \"the happening of the accident is evidence that public property was in a dangerous condition.\" (Sen. committee com. to § 830.5, reprinted in 32 West's Ann. Gov. Code, supra, at p. 281.) The rule had occasionally led to the imposition of liability on public entities for relatively trivial defects in, and unforeseeable uses of, public property. (See, e.g., Johnson v. Palo Alto (1962) 199 Cal. App. 2d 148, 150-151 [18 Cal. Rptr. 484] [a difference in height of one-half inch between sidewalk edges caused plaintiff to fall]; Gentekos v. City & County of S.F. (1958) 163 Cal. App. 2d 691, 695, 697 [329 P.2d 943] [similar facts]; Balkwill v. Stockton (1942) 50 Cal. App. 2d 661, 664, 668 [123 P.2d 596] [holes in sidewalk]; Hook v. Sacramento (1931) 118 Cal. App. 547, 551-552 [5 P.2d 643] [similar facts]; Bauman v. San Francisco (1940) 42 Cal. App. 2d 144, 149, 154 [108 P.2d 989] [plaintiff injured by baseball in playground intended for small children]; see also Van Alstyne, Cal. Government Tort Liability Practice (Cont.Ed.Bar 1980) appen., p. 633 [further references to Van Alstyne are to this work].) The Commission had already proposed to eliminate liability for trivial defects and unforeseeable uses by excluding them from the definition of \"dangerous condition.\"[4] This proposal, which the Legislature also adopted, eventually became section 830, subdivision (a). The Senate amendment concerning res ipsa loquitur (§ 830.5) merely reinforced the point.\nSection 830.5 thus eliminates any inference of dangerousness that arises from the mere \"happening of the accident.\" (§ 830.5, subd. (a).) On the other hand, the Legislature may have intended to permit an inference of dangerousness \"where the doctrine of res ipsa loquitur is applicable....\" (Ibid.; see also Sen. committee com. to § 830.5, reprinted in 32 West's Ann. Gov. Code, supra, at p. 281.) It might be possible to reconcile this limited use of res ipsa loquitur with the Legislature's intent to narrow liability: Use of the doctrine to infer dangerousness would not ordinarily create liability for trivial defects or unforeseeable uses because res ipsa loquitur applies only when the accident was \"of a kind which ordinarily does not occur in the absence of someone's negligence....\" (Ybarra v. Spangard, supra, 25 Cal.2d at p. 489, internal quotations omitted.)\n*832 Professor Van Alstyne[5] offers a similar interpretation of section 830.5: \"The requirement that the condition must have created a reasonably foreseeable risk of the kind of injury that did occur (see [§ 835] ...) seems to be within the logic of the res ipsa rationale, ... and the doctrine probably would supply this element in most situations. It appears to be consistent with the basis for res ipsa loquitur that the injury is of a kind that would not have occurred except through the negligent construction or maintenance of the instrumentality by the party having exclusive control of it.\" (Van Alstyne, supra, § 3.80, p. 307.)\nThus, it appears that the doctrine of res ipsa loquitur can be used to establish some of the statutory conditions for liability. Although we need not address the issue in this case (see fn. 4, ante), perhaps the doctrine might be used \"in appropriate cases\" to show that the public entity's property was in a dangerous condition. (See Sen. committee com. to § 830.5, reprinted in 32 West's Ann. Gov. Code, supra, at p. 281; cf. § 830, subd. (a).) Moreover, it is consistent with the logic of res ipsa loquitur to permit its use to show that a particular act or omission was negligent. However, to return to Professor Van Alstyne's analysis, \"[i]t is doubtful ... [whether the res ipsa loquitur] doctrine would also support an inference, without additional evidence, that the public entity either created the condition or had notice of it in sufficient time to protect against the injury. [§ 835.] ... These liability requirements appear to be beyond the legislative intent regarding applicability of the res ipsa doctrine....\" (Van Alstyne, supra, § 3.80, pp. 307-308, italics added.)\nThe parties dispute whether Professor Van Alstyne's conclusion accurately reflects legislative intent. However, whether or not one accepts the professor's conclusion one may at least accept his premise without much controversy: The res ipsa loquitur presumption can be used to establish those conditions of liability that the presumption logically tends to establish.\nThe res ipsa loquitur presumption, under California law, is that \"a proximate cause of the occurrence was some negligent conduct on the part of the defendant....\" (Evid. Code, § 646, subd. (c)(1).) Thus, if the Legislature had intended to hold a public entity liable for all types of negligent conduct by public employees, we would have little hesitation in holding that res ipsa loquitur satisfied the statutory conditions of liability. However, it appears that the Legislature intended to impose liability on public entities only in a *833 narrow set of cases. This narrowing of liability is accomplished by the requirement that an employee of the public entity have \"created\" the dangerous condition. (§ 835, subd. (a).)\nThe intent of section 835 is set out in the legislative committee comment, which repeats the relevant comments of the Commission. The comment explains that section 835 \"is similar to the Public Liability Act of 1923, under which cities, counties and school districts [were] liable for injuries proximately caused by the dangerous conditions of their property. [¶] Although there is no provision similar to subdivision (a) in [the former act], the courts have held that entities are liable under that act for dangerous conditions created by the negligence or wrongful acts of their employees. Pritchard v. Sully-Miller Contracting Co. [(1960)] 178 Cal. App. 2d 246....\" (Sen. committee com. to § 835, reprinted at 32 West's Ann. Gov. Code, supra, p. 301, italics added; see also Recommendation Relating to Sovereign Immunity, supra, 4 Cal. Law Revision Com. Rep. at p. 854 [verbatim].)\nThe judicial decisions to which the comment refers addressed what was, at the time, perceived to be an unfair loophole in the Public Liability Act of 1923. (Former § 53051, added by Stats. 1949, ch. 81, § 1, p. 285; repealed by Stats. 1963, ch. 1681, § 18, p. 3286.) Under the former act, a public entity was liable for injuries caused by a dangerous condition of its property only when the \"legislative body, board, or person authorized to remedy the condition\" had \"knowledge or notice\" and, \"[f]or a reasonable time after acquiring knowledge or receiving notice, failed to remedy the condition....\" (Former § 53051, Stats. 1949, ch. 81, § 1, p. 285.) Over time, a rule evolved to the effect that the statutory notice requirements did not apply to dangerous conditions that had been deliberately created by public employees because, in such circumstances, knowledge was presumed.\nThe opinion cited in the comment (Pritchard v. Sully-Miller Contracting Co. (1960) 178 Cal. App. 2d 246 [2 Cal. Rptr. 830] (Pritchard)) recognizes this exception to the former statute's notice requirement. The plaintiff in Pritchard, who had been injured in an automobile accident, alleged that the accident was caused by the manner in which a city employee had timed traffic signals. The trial court instructed the jury that the plaintiff did not need to show, as the former statute seemed to require, that the \"legislative body, board, or person authorized to remedy the condition\" had received notice. (Former § 53051, Stats. 1949, ch. 81, § 1, p. 285; see Pritchard, supra, 178 Cal. App.2d at pp. 256-257.) The jury found for the plaintiff, and the Court of Appeal upheld the verdict, reasoning that \"the fact that the city itself deliberately created the dangerous condition dispensed with the necessity of the notice contemplated by section 53051....\" (Pritchard, supra, 178 Cal. App.2d at p. 254.)\n*834 Pritchard accurately followed Fackrell v. City of San Diego (1945) 26 Cal. 2d 196 [157 P.2d 625, 158 A.L.R. 773] (Fackrell), in which we held that a city was presumed to know of the dangerous condition presented by a poorly designed sidewalk improvement. We explained that where an improvement \"has been planned by city officers and constructed in accordance with such plan, and [where] by carrying out the plan a dangerous and defective condition has been created, no further proof is needed to charge the city with notice of that condition.\" (Id., at p. 203.)\nIn short, Fackrell and Pritchard applied the \"well established\" rule that a public agency was presumed to have notice of a dangerous condition of property that was the \"natural and probable consequence\" of the entity's own work. (Fackrell, supra, 26 Cal.2d at pp. 203, 206; cf. Pritchard, supra, 178 Cal. App.2d at p. 254.)[6] (6), (5b) The language of the Tort Claims Act, which the Legislature explained by reference to Pritchard, was expressly intended to codify this rule. This is clear from the legislative committee comment: \"Although there is no provision similar to [section 835,] subdivision (a) in the Public Liability Act of 1923, the courts have held that entities are liable under that act for dangerous conditions created by the negligent or wrongful acts of their employees. Pritchard v. Sully-Miller Contracting Co., [supra]....\" (Sen. committee com. to § 835, supra, reprinted at 32 West's Ann. Gov. Code, § 835, p. 301.)\nThe Legislature's reference to Pritchard, supra, 178 Cal. App. 2d 246, can only mean that it intended to adopt the rule of that case, i.e., that a public entity is liable for a dangerous condition created by an employee under circumstances in which the employee's involvement makes it fair to presume that the entity had notice of the condition. Indeed, the Commission in its recommendation had already explained the same concept in different words: \"The dangerous conditions statute should provide specifically that a governmental entity is liable for dangerous conditions of property created by the negligent or wrongful act of an employee acting within the scope of his employment even if no showing is made that the entity had any other notice of the existence of the condition or an opportunity to make repairs or take precautions against injury. The courts have construed the existing Public Liability Act as making public entities liable for negligently created defects.\" (Recommendation Relating to Sovereign Immunity, supra, 4 Cal. Law Revision Com. Rep. at p. 824, italics added.)\n*835 Professor Van Alstyne's analysis reinforces this interpretation of section 835, subdivision (a): \"The creation by the public entity of a physical facility or condition that is `dangerous' dispenses with the necessity of notice, for the entity presumably knows already that it has affirmatively created the condition, and thus has notice that it is dangerous.\" (Van Alstyne, supra, § 3.17b, p. 208, italics added.)\nWhile there is, thus, ample evidence that section 835, subdivision (a), was intended to incorporate the Pritchard rule, there is no evidence whatever that the Legislature intended to extend the liability of public entities to cases in which there was no involvement by a public employee and, thus, no basis for presuming that the entity had notice of the dangerous condition.\nThe Court of Appeal, which reached a different conclusion, reasoned that \"the notice requirements of [section 835, subdivision] (b) have no application\" to cases of employee negligence under subdivision (a). It is true that the notice requirements of subdivision (b) do not apply to cases brought under subdivision (a). However, it does not follow that the Legislature intended to impose liability on a public entity for a dangerous condition absent a showing that a public employee was involved in its creation.\nAgain, the legislative history is instructive. The former Public Liability Act imposed liability for a dangerous condition of public property only when the governing board or person \"authorized to remedy the condition\" had \"knowledge or notice.\" (Former § 53051, Stats. 1949, ch. 81, § 1, p. 285; see Recommendation Relating to Sovereign Immunity, supra, 4 Cal. Law Revision Com. Rep. at p. 825.) The Commission recommended that this requirement be abolished. However, the reason for abolishing the requirement was not to hold public entities liable for unknown dangers but to apply the rules that govern the imputation of knowledge from employees to employers in ordinary civil cases.\nThis is evident from the Commission's explanation of the proposed section 835: \"The requirement that the dangerous condition of public property be known to the governing board or a person authorized to remedy the defect should be repealed. The ordinary rules for imputing the knowledge of an employee to an employer should be applicable to public entities just as they are applicable to private owners and occupiers of land. Under these rules, the knowledge of an employee concerning a dangerous condition is imputed to the employer if under all the circumstances it would have been unreasonable for the employee not to have informed his employer. The knowledge of employees will not be imputed to the entity in other circumstances.\" (Recommendation Relating to Sovereign Immunity, supra, 4 Cal. Law Revision Com. Rep. at p. 825.)\n*836 Subdivisions (a) and (b) of section 835 obviously address two different types of cases. However, what distinguishes the two types of cases is not simply whether the public entity has notice of the dangerous condition. Instead, what distinguishes the two cases in practice is who created the dangerous condition. Because an entity must act through its employees, virtually all suits brought on account of dangerous conditions created by the entity will be brought under subdivision (a). In contrast, subdivision (b) can also support suits based on dangerous conditions not created by the entity or its employees.\nA public entity can be liable for a dangerous condition not of its own making if the entity had \"actual or constructive notice ... a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.\" (§ 835, subd. (b).) To be sure, there is no corresponding requirement that the public entity have \"notice\" of dangerous conditions created by the entity itself or its employees. However, there is no such requirement only because \"[t]he creation by the public entity of a physical facility or condition that is `dangerous' dispenses with the necessity of notice, for the entity presumably knows already that it has affirmatively created the condition, and thus has notice that it is dangerous.\" (Van Alstyne, supra, § 3.17b, p. 208, italics added; cf. Sen. committee com. to § 835, supra, reprinted at 32 West's Ann. Gov. Code, § 835, at p. 301.)\n(3b) With this background, it is apparent that the res ipsa loquitur presumption does not satisfy the requirements for holding a public entity liable under section 835, subdivision (a). Res ipsa loquitur requires the plaintiff to show only (1) that the accident was of a kind which ordinarily does not occur in the absence of negligence, (2) that the instrumentality of harm was within the defendant's exclusive control, and (3) that the plaintiff did not voluntarily contribute to his or her own injuries. (Ybarra v. Spangard, supra, 25 Cal.2d at p. 489.) Subdivision (a), in contrast, requires the plaintiff to show that an employee of the public entity \"created\" the dangerous condition; in view of the legislative history, which we have already discussed, the term \"created\" must be defined as the sort of involvement by an employee that would justify a presumption of notice on the entity's part.\nIt is, thus, evident that the elements of res ipsa loquitur do not match the elements of liability under the Government Code. To illustrate, the plaintiff in a case based on a dangerous condition of property can satisfy the elements of res ipsa loquitur without showing that the defendant or its employee created the condition. We have, for example, held that it was proper to instruct on res ipsa loquitur in a case where liability was based on an apartment owner's failure to discover that an exterior stairway had become *837 dangerous through natural deterioration. (Di Mare v. Cresci (1962) 58 Cal. 2d 292 [23 Cal. Rptr. 772, 373 P.2d 860].) When a public entity is the defendant, however, the Legislature has expressly declared that such cases create liability only if the \"public entity had actual or constructive notice of the dangerous condition under [s]ection 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.\" (§ 835, subd. (b).) Moreover, under section 835.2 the public entity may defend by showing that a cost-effective inspection system would not have discovered the dangerous condition. (§ 835.2, subd. (b)(1).) These carefully crafted limits on the liability of public entities would be nullities if a plaintiff could establish a prima facie case of liability under section 835, subdivision (a), simply by proving the elements of res ipsa loquitur.\nOne searches the reported decisions in vain for an opinion applying section 835, subdivision (a), to facts like those of the case before us. Instead, one finds cases in which public employees actively created dangerous conditions under circumstances that would clearly justify a presumption of notice on the part of a public employer. To illustrate, in Warden v. City of Los Angeles (1975) 13 Cal. 3d 297, 300 [118 Cal. Rptr. 487, 530 P.2d 175], municipal employees placed a sewer pipe just below the surface of a navigable watercourse without adequate warnings. In Hilts v. County of Solano (1968) 265 Cal. App. 2d 161, 164-166, 172 [71 Cal. Rptr. 275], county employees constructed a dangerous highway intersection by grading the intersecting roadways at different elevations, by planting trees that obstructed vision, and by placing misleading signs and center lines. And in Davis v. Cordova Recreation & Park Dist. (1972) 24 Cal. App. 3d 789, 792-793 [101 Cal. Rptr. 358], municipal employees dug a deep \"fish hole\" in the middle of a pond located on a children's playground.\nIn cases such as these, a public employee's involvement in creating the dangerous condition provides a basis for presuming that the public entity has notice of the condition.[7] This is because a public entity is presumed to have knowledge of a dangerous condition that is the \"natural and probable consequence\" of its work. (Fackrell, supra, 26 Cal.2d at p. 206.) Thus, the facts of such cases satisfy the assumption that underlies the Legislature's waiver of sovereign immunity for dangerous conditions created by public employees: \"the entity presumably knows already that it has affirmatively created the condition, and thus has notice that it is dangerous.\" (Van Alstyne, supra, § 3.17b, p. 208.)\n*838 In contrast, to hold that the res ipsa loquitur presumption, alone, established a prima facie case under section 835, subdivision (a), would permit a jury in this case to find the District liable even though there was no evidence that an employee of the District was involved in creating the allegedly dangerous condition. In such a case, the assumptions that underlie the Legislature's waiver of sovereign immunity for dangerous conditions created by public employees do not apply. Thus, to accept Brown's view of the statute would appear to extend liability further than the Legislature intended.\nAccordingly, we conclude that the res ipsa loquitur presumption does not by itself establish a prima facie case of liability against a public entity under section 835, subdivision (a). The Court of Appeal's holding to the contrary was erroneous.\n\nDISPOSITION\nThe judgment of the Court of Appeal is reversed.\nLucas, C.J., Kennard, J., Arabian, J., Baxter, J., and George, J., concurred.\nMOSK, J.\nI dissent.\nI am concerned with the damage the majority are inflicting on the venerable doctrine of res ipsa loquitur. True, they inject a few qualifying words here and there, but the bottom line is that \"the thing speaks for itself\" may hereafter be heard as a mere whisper.\nIt must be kept in mind that the Court of Appeal did not decide the merits of the complaint, it held only that the issue was one of fact and could not be decided on summary judgment. In this the Court of Appeal was correct; its decision should not be reversed.\nI cite, in particular, the following excerpts from the thoughtful Court of Appeal opinion of Justice Froehlich, concurred in by Justices Wiener and Huffman:[1]\n\"[T]he `doctrine of res ipsa loquitur is applicable where the accident is of such a nature that it can be said, in the light of past experience, that it *839 probably was the result of negligence by someone and that the defendant is probably the one responsible.'\" (Newing v. Cheatham (1975) 15 Cal. 3d 351, 359 [124 Cal. Rptr. 193, 540 P.2d 33], quoting Di Mare v. Cresci (1962) 58 Cal. 2d 292, 298-299 [23 Cal. Rptr. 772, 373 P.2d 860].) Three conditions are necessary to apply the doctrine:\n\"`(1) the accident must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.'\" (Ybarra v. Spangard (1944) 25 Cal. 2d 486, 489 [154 P.2d 687, 162 A.L.R. 1258].)\nThe evidence need not show that the accident must have happened because of someone's negligence, but that in the light of past experience the accident probably was caused by the negligence of someone. (Di Mare v. Cresci, supra, 58 Cal.2d at pp. 298-299.)\nWe turn to the first condition whether the accident is one which would not ordinarily occur in the absence of someone's negligence. In deciding if this condition is satisfied, courts generally consider common knowledge and experience, the testimony of expert witnesses and the circumstances relevant to the particular accident in the case. (Zentz v. Coca Cola Bottling Co [sic] (1952) 39 Cal. 2d 436, 446 [247 P.2d 344].)[2] Common experience indicates Brown probably would not have slipped on lunch meat in the hallway in the absence of someone's negligence. Someone must have dropped the lunch meat on the hallway floor.\nThe second condition, exclusivity of control, is a flexible concept. (Zentz, supra, 39 Cal.2d at pp. 443-444.) \"[R]es ipsa loquitur applies where the accident is of such a nature that it can be said, in the light of past experience, that it probably was the result of negligence by someone and that the defendant is probably the person who is responsible.\" (Id. at p. 446.) *840 \"Although ... the doctrine will not ordinarily apply if it is equally probable that the negligence was that of someone other than the defendant, the plaintiff need not exclude all other persons who might possibly have been responsible where the defendant's negligence appears to be the more probable explanation of the accident.\" (Id. at pp. 443-444.)\nThe third requirement of res ipsa loquitur is that the accident must not be due to action by the plaintiff. Although Brown obviously \"participated\" in the accident by stepping on the lunch meat, such conduct does not automatically constitute him a voluntary contributor to the negligence. This third requisite for res ipsa loquitur is not congruent with the concept of contributory negligence, but looks instead to find conduct so participatory in damage causation as to preclude the inference that the defendant's negligence caused the accident. (McFarland v. Booker, supra, 250 Cal. App. 2d 402, 412.) \"The plaintiff need not show that he was entirely inactive at the time of the accident in order to satisfy this requirement, so long as the evidence is such as to eliminate his conduct as a factor contributing to the occurrence.\" (Newing v. Cheatham, supra, 15 Cal.3d at p. 363.) He may rely on the res ipsa loquitur doctrine even if he participated in the events leading to the accident, as long as his action was not the primary cause. (Hercules etc. Co. v. Automatic etc. Corp. (1957) 151 Cal. App. 2d 387, 396 [311 P.2d 907].) The requirement that the defendant be in exclusive control of the instrumentality which caused the injury means only that the plaintiff's use of the instrumentality must not have been the primary cause of the accident. (Emerick v. Raleigh Hills Hospital (1982) 133 Cal. App. 3d 575, 585-586 [184 Cal. Rptr. 92]; 57B Am.Jur.2d, Negligence, § 1213, p. 127.) []\nWhere there is a question of fact as to any of the conditions required for application of the res ipsa loquitur doctrine, the issues are properly determined by a finder of fact. (Newing v. Cheatham, supra, 15 Cal.3d at p. 359; Keena Scales (1964) 61 Cal. 2d 779, 783 [40 Cal. Rptr. 65, 394 P.2d 809]; Hansen v. Matich Corporation (1965) 234 Cal. App. 2d 129, 133 [44 Cal. Rptr. 149].) Here, each of the three elements necessary to application of the doctrine was established at least to a degree sufficient to create a factual question for trial determination. Thus, the granting of summary judgment was improper. []\nThe district nevertheless presses its argument that the concept of res ipsa loquitur is somehow inappropriate in an action against a public entity. As the district contends, the logical steps of circumstantial evidence utilized by res ipsa loquitur to infer negligence do not seem appropriate for production of an inference of notice. (See Van Alstyne, [Cal. Government Tort Liability *841 Practice (Cont.Ed.Bar 1980) Dangerous Condition of Public Property] § 3.80, p. 308: \"... the carefully prescribed statutory standards for determining when actual or constructive notice exists ... do not appear to leave room for application of the doctrine [of res ipsa loquitur].\") (See also Van Dorn v. City & County of S.F. (1951) 103 Cal. App. 2d 714, 716 [230 P.2d 393], in which the court stated, without citation of authority, that \"res ipsa does not apply\" to proof of notice to the city of the defective condition.) There seems no reason, however, why res ipsa loquitur cannot be used to raise an inference of simple negligence as set forth in alternative subdivision (a) of Government Code section 835.\nWe note that Government Code section 830.5 states: \"[T]he happening of the accident which results in the injury is not in and of itself evidence that public property was in a dangerous condition.\" However, this statutory statement of a legal truism is preceded by the caveat \"Except where the doctrine of res ipsa loquitur is applicable.\" The Senate Legislative Committee's Comment to this legislation, which was adopted in 1963, states: \"... the section does not prevent the use of the doctrine of res ipsa loquitur in appropriate cases.\" (See Sen. committee com., 32 West's Ann. Gov. Code (1980 ed.) § 830.5, p. 281.) []\nTo summarize: There is no reason why Brown could not rely upon the doctrine of res ipsa loquitur to establish a prima facie case of negligence on the part of the school district. Brown was required only to establish those traditional requisites for the doctrine in terms of evidence from which a finder of fact could conclude the requisites established. We believe Brown did this. The meat was on the floor of the hallway, and appeared fresh when removed from the heel of Brown's boot. Access to the hallway was through a door usually locked by keys controlled by district employees. Vendors or visitors could enter only after an employee had unlocked the door. An employees' lounge and a picnic table were provided at the building. Brown stated he had seen people eating lunch in the area. He further stated he did not bring the meat into the hallway. An inference can be made it was unlikely that Brown, at the building for the purpose of delivering computers, or Balles, there to pick up saw blades, would have had any reason to carry lunch meat into the hallway. This was not an area frequented by students or people other than district employees. A jury could have found it more probable than not that a district employee was responsible. Here, the evidence presents a question of fact as to whether the conditions required for application of the doctrine of res ipsa loquitur are present. In that this is an *842 issue properly decided by a finder of fact, we should hold the court erred in granting summary judgment. (Cf. Moreno v. Sayre (1984) 162 Cal. App. 3d 116, 125 [208 Cal. Rptr. 444].)\nNOTES\n[1] All further references to statutes are to the Government Code except as noted or as the context may require.\n[2] Cases from this state include, for example, Oldenburg v. Sears, Roebuck & Co. (1957) 152 Cal. App. 2d 733, 741 [314 P.2d 33]; Vaughn v. Montgomery Ward & Co. (1950) 95 Cal. App. 2d 553, 556 [213 P.2d 417]; Gold v. Arizona Realty etc. Co. (1936) 12 Cal. App. 2d 676, 677 [55 P.2d 1254]; Finch v. Willmott (1930) 107 Cal. App. 662, 666 [290 P. 660]; and Marple v. Manspeaker (1928) 88 Cal. App. 682, 685 [263 P. 1022]. Cf. Dennis v. Carolina Pines Bowling Center (1967) 248 Cal. App. 2d 369, 372 [56 Cal. Rptr. 453]; Owen v. Beauchamp (1944) 66 Cal. App. 2d 750, 754 [152 P.2d 756].\n\nFor similar cases from other jurisdictions see, for example, Ex parte Travis (Ala. 1982) 414 So. 2d 956, 958; Foster v. Kwik Chek Super Markets, Inc. (1969) 284 Ala. 348 [224 So. 2d 895, 897]; Great Atlantic & Pacific Tea Co. v. Bennett (1958) 267 Ala. 538 [103 So. 2d 177, 178]; Rhodes v. El Rancho Markets (1969) 9 Ariz. App. 576 [454 P.2d 1016, 1020]; Safeway Stores, Inc. v. Willmon (1986) 289 Ark. 14 [708 S.W.2d 623, 624]; Ogden Estate v. Decatur County Hosp. (Ind. App. 1987) 509 N.E.2d 901, 904; Douglas v. Great Atlantic & Pac. Tea Co. (Miss. 1981) 405 So. 2d 107, 111; Daniels v. Morgan & Lindsay, Inc. (Miss. 1967) 198 So. 2d 579, 584; F.W. Woolworth Co. v. Stokes (Miss. 1966) 191 So. 2d 411, 415; Sears, Roebuck & Company v. Tisdale (Miss. 1966) 185 So. 2d 916, 917; Hallett v. Furr's, Inc. (1963) 71 N.M. 377 [378 P.2d 613, 617]; Mahoney v. J.C. Penney Co. (1962) 71 N.M. 244 [377 P.2d 663, 669]; Kitts v. Shop Rite Foods, Inc. (1958) 64 N.M. 24 [323 P.2d 282, 284]; Haynes v. Horton (1964) 261 N.C. 615 [135 S.E.2d 582, 583]; Prame v. Ames Department Stores, Inc. (1991) 176 A.D.2d 1215 [577 N.Y.S.2d 188]; Murrell v. Handley (1957) 245 N.C. 559 [96 S.E.2d 717, 720]; Barnes v. Hotel O. Henry Corp. (1949) 229 N.C. 730 [51 S.E.2d 180, 181]; Tweed v. First Nat. Bldg. Corp. (1950) 203 Okla. 31 [218 P.2d 356, 358]; German v. Kienow's Food Stores (1967) 246 Ore. 334 [425 P.2d 523, 525]; Franklin v. Safeway Stores, Inc. (Tex.Civ.App. 1973) 504 S.W.2d 514, 517.\n[3] For the first time in this court, Brown argues that there is sufficient evidence to support a finding of negligence even without the benefit of res ipsa loquitur. We do not ordinarily consider issues that were not raised below (Cal. Rules of Court, rule 29(b)(1); see Marshall v. Bankers Life & Casualty Co. (1992) 2 Cal. 4th 1045, 1059 [10 Cal. Rptr. 2d 72, 832 P.2d 573]) and see no compelling reason to depart from the ordinary rule in this case.\n[4] \"`Dangerous condition' means a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.\" (§ 830, subd. (a).)\n\nThe lower courts did not decide whether lunch meat on the floor can amount to a \"dangerous condition\" under section 830. Nor do we.\n[5] Professor Van Alstyne was the Commission's research consultant on the subject of sovereign immunity. The study he prepared for the Commission is published as A Study Relating to Sovereign Immunity (Jan. 1963) 5 California Law Revision Commission Report page 1.\n[6] See also Watson v. City of Alameda (1933) 219 Cal. 331, 334 [26 P.2d 286] (city employees marked a crosswalk with slippery paint); Bigelow v. City of Ontario (1940) 37 Cal. App. 2d 198, 204 [99 P.2d 298] (city employees created a dangerous roadway); Sandstoe v. Atchison, T. & S.F. Ry. Co. (1938) 28 Cal. App. 2d 215, 219 [82 P.2d 216] (city employees painted a misleading center line on a road); Wise v. City of Los Angeles (1935) 9 Cal. App. 2d 364, 367 [49 P.2d 1122] (city employee dug and left a hole in street).\n[7] This is not to say that liability under section 835, subdivision (a), can never be based on a negligent omission. For example, if an employee whose job it is to inspect or to repair a facility neglects that duty, such an employee may well be sufficiently involved in creating a dangerous condition to give rise to liability under section 835, subdivision (a).\n[1] Brackets together, in this manner [], without enclosing material, are used to indicate deletions from the opinion of the Court of Appeal; brackets enclosing material (other than editor's added parallel citations) are, unless otherwise indicated, used to denote insertions or additions. All footnotes in the Court Appeal opinion have been deleted with the exception of footnote 2.\n[2] Courts have found this condition satisfied in a variety of factual situations. (See, e.g., Zentz, supra, 39 Cal.2d at p. 447 [exploding bottle of carbonated beverage]; Raber v. Tumin (1951) 36 Cal. 2d 654, 659 [226 P.2d 574] [falling ladder]; Baker v. B.F. Goodrich Co. (1953) 115 Cal. App. 2d 221, 223 [252 P.2d 24] [bursting automobile tire]; Owens v. White Memorial Hospital (1956) 138 Cal. App. 2d 634, 639 [292 P.2d 288] [rail of hospital bed fell on plaintiff]; McFarland v. Booker (1967) 250 Cal. App. 2d 402, 412 [58 Cal. Rptr. 417] [rear-end collision]; Pappas v. Carson (1975) 50 Cal. App. 3d 261, 269 [123 Cal. Rptr. 343] [fire from overloading electrical circuits or from defective wiring].)\n\n",
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"opinion_text": "\nMOSK, J.\nI dissent.\nI am concerned with the damage the majority are inflicting on the venerable doctrine of res ipsa loquitur. True, they inject a few qualifying words here and there, but the bottom line is that “the thing speaks for itself’ may hereafter be heard as a mere whisper.\nIt must be kept in mind that the Court of Appeal did not decide the merits of the complaint, it held only that the issue was one of fact and could not be decided on summary judgment. In this the Court of Appeal was correct; its decision should not be reversed.\nI cite, in particular, the following excerpts from the thoughtful Court of Appeal opinion of Justice Froehlich, concurred in by Justices Wiener and Huffman:1\n“[T]he ‘doctrine of res ipsa loquitur is applicable where the accident is of such a nature that it can be said, in the light of past experience, that it *839probably was the result of negligence by someone and that the defendant is probably the one responsible.’ ” (Newing v. Cheatham (1975) 15 Cal.3d 351, 359 [124 Cal.Rptr. 193, 540 P.2d 33], quoting Di Mare v. Cresci (1962) 58 Cal.2d 292, 298-299 [23 Cal.Rptr. 772, 373 P.2d 860].) Three conditions are necessary to apply the doctrine:\n“ ‘(1) the accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.’ ” (Ybarra v. Spangard (1944) 25 Cal.2d 486, 489 [154 P.2d 687, 162 A.L.R. 1258].)\nThe evidence need not show that the accident must have happened because of someone’s negligence, but that in the light of past experience the accident probably was caused by the negligence of someone. (Di Mare v. Cresci, supra, 58 Cal.2d at pp. 298-299.)\nWe turn to the first condition—whether the accident is one which would not ordinarily occur in the absence of someone’s negligence. In deciding if this condition is satisfied, courts generally consider common knowledge and experience, the testimony of expert witnesses and the circumstances relevant to the particular accident in the case. (Zentz v. Coca Cola Bottling Co [sic] (1952) 39 Cal.2d 436, 446 [247 P.2d 344].) 2 Common experience indicates Brown probably would not have slipped on lunch meat in the hallway in the absence of someone’s negligence. Someone must have dropped the lunch meat on the hallway floor.\nThe second condition, exclusivity of control, is a flexible concept. (Zentz, supra, 39 Cal.2d at pp. 443-444.) “[R]es ipsa loquitur applies where the accident is of such a nature that it can be said, in the light of past experience, that it probably was the result of negligence by someone and that the defendant is probably the person who is responsible.” (Id. at p. 446.) *840“Although... the doctrine will not ordinarily apply if it is equally probable that the negligence was that of someone other than the defendant, the plaintiff need not exclude all other persons who might possibly have been responsible where the defendant’s negligence appears to be the more probable explanation of the accident.” (Id. at pp. 443-444.)\nThe third requirement of res ipsa loquitur is that the accident must not be due to action by the plaintiff. Although Brown obviously “participated” in the accident by stepping on the lunch meat, such conduct does not automatically constitute him a voluntary contributor to the negligence. This third requisite for res ipsa loquitur is not congruent with the concept of contributory negligence, but looks instead to find conduct so participatory in damage causation as to preclude the inference that the defendant’s negligence caused the accident. (McFarland v. Booker, supra, 250 Cal.App.2d 402, 412.) “The plaintiff need not show that he was entirely inactive at the time of the accident in order to satisfy this requirement, so long as the evidence is such as to eliminate his conduct as a factor contributing to the occurrence.” (Newing v. Cheatham, supra, 15 Cal.3d at p. 363.) He may rely on the res ipsa loquitur doctrine even if he participated in the events leading to the accident, as long as his action was not the primary cause. (Hercules etc. Co. v. Automatic etc. Corp. (1957) 151 Cal.App.2d 387, 396 [311 P.2d 907].) The requirement that the defendant be in exclusive control of the instrumentality which caused the injury means only that the plaintiffs use of the instrumentality must not have been the primary cause of the accident. (Emerick v. Raleigh Hills Hospital (1982) 133 Cal.App.3d 575, 585-586 [184 Cal.Rptr. 92]; 57B Am.Jur.2d, Negligence, § 1213, p. 127.) []\nWhere there is a question of fact as to any of the conditions required for application of the res ipsa loquitur doctrine, the issues are properly determined by a finder of fact. (Newing v. Cheatham, supra, 15 Cal.3d at p. 359; Keena Scales (1964) 61 Cal.2d 779, 783 [40 Cal.Rptr. 65, 394 P.2d 809]; Hansen v. Matich Corporation (1965) 234 Cal.App.2d 129, 133 [44 Cal.Rptr. 149].) Here, each of the three elements necessary to application of the doctrine was established at least to a degree sufficient to create a factual question for trial determination. Thus, the granting of summary judgment was improper. []\nThe district nevertheless presses its argument that the concept of res ipsa loquitur is somehow inappropriate in an action against a public entity. As the district contends, the logical steps of circumstantial evidence utilized by res ipsa loquitur to infer negligence do not seem appropriate for production of an inference of notice. (See Van Alstyne, [Cal. Government Tort Liability *841Practice (Cont.Ed.Bar 1980) Dangerous Condition of Public Property] § 3.80, p. 308: “. . . the carefully prescribed statutory standards for determining when actual or constructive notice exists ... do not appear to leave room for application of the doctrine [of res ipsa loquitur].”) (See also Van Dorn v. City & County of S. F. (1951) 103 Cal.App.2d 714, 716 [230 P.2d 393], in which the court stated, without citation of authority, that “res ipsa does not apply” to proof of notice to the city of the defective condition.) There seems no reason, however, why res ipsa loquitur cannot be used to raise an inference of simple negligence as set forth in alternative subdivision (a) of Government Code section 835.\nWe note that Government Code section 830.5 states: “[T]he happening of the accident which results in the injury is not in and of itself evidence that public property was in a dangerous condition.” However, this statutory statement of a legal truism is preceded by the caveat “Except where the doctrine of res ipsa loquitur is applicable.” The Senate Legislative Committee’s Comment to this legislation, which was adopted in 1963, states: . . the section does not prevent the use of the doctrine of res ipsa loquitur in appropriate cases.” (See Sen. committee com., 32 West’s Ann. Gov. Code (1980 ed.) § 830.5, p. 281.) []\nTo summarize: There is no reason why Brown could not rely upon the doctrine of res ipsa loquitur to establish a prima facie case of negligence on the part of the school district. Brown was required only to establish those traditional requisites for the doctrine—in terms of evidence from which a finder of fact could conclude the requisites established. We believe Brown did this. The meat was on the floor of the hallway, and appeared fresh when removed from the heel of Brown’s boot. Access to the hallway was through a door usually locked by keys controlled by district employees. Vendors or visitors could enter only after an employee had unlocked the door. An employees’ lounge and a picnic table were provided at the building. Brown stated he had seen people eating lunch in the area. He further stated he did not bring the meat into the hallway. An inference can be made it was unlikely that Brown, at the building for the purpose of delivering computers, or Bailes, there to pick up saw blades, would have had any reason to carry lunch meat into the hallway. This was not an area frequented by students or people other than district employees. A jury could have found it more probable than not that a district employee was responsible. Here, the evidence presents a question of fact as to whether the conditions required for application of the doctrine of res ipsa loquitur are present. In that this is an *842issue properly decided by a finder of fact, we should hold the court erred in granting summary judgment. (Cf. Moreno v. Sayre (1984) 162 Cal.App.3d 116, 125 [208 Cal.Rptr. 444].)\n\nBrackets together, in this manner [], without enclosing material, are used to indicate deletions from the opinion of the Court of Appeal; brackets enclosing material (other than editor’s added parallel citations) are, unless otherwise indicated, used to denote insertions or *839additions. All footnotes in the Court Appeal opinion have been deleted with the exception of footnote 2.\n\n\nCourts have found this condition satisfied in a variety of factual situations. (See, e.g., Zentz, supra, 39 Cal.2d at p. 447 [exploding bottle of carbonated beverage]; Raber v. Tumin (1951) 36 Cal.2d 654, 659 [226 P.2d 574] [falling ladder]; Baker v. B. F. Goodrich Co. (1953) 115 Cal.App.2d 221, 223 [252 P.2d 24] [bursting automobile tire]; Owens v. White Memorial Hospital (1956) 138 Cal.App.2d 634, 639 [292 P.2d 288] [rail of hospital bed fell on plaintiff]; McFarland v. Booker (1967) 250 Cal.App.2d 402, 412 [58 Cal.Rptr. 417] [rear-end collision]; Pappas v. Carson (1975) 50 Cal.App.3d 261, 269 [123 Cal.Rptr. 343] [fire from overloading electrical circuits or from defective wiring].)\n\n",
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"opinion_text": "\nOpinion\nPANELLI, J.\nPlaintiff sued a public entity to recover for personal injuries after he slipped and fell on public property. The Court of Appeal held that the doctrine of res ipsa loquitur precluded summary judgment for the public entity even though there was no evidence to show how the slippery object came to be on the floor or that the public entity had notice of the hazard. We reverse.\nBackground\nPlaintiff Francis Brown sued defendant Poway Unified School District (hereafter District) after he slipped and fell on the District’s property. *824Brown, a self-employed computer repairman, was delivering computers to the District’s facilities building at 9:30 a.m. on Monday morning. Brown parked his van near a door and, with the help of a District employee, made five trips down a hallway between the van and the room where the computers were stored. On the last trip back to his van, Brown slipped and fell. The employees who helped Brown to his feet found a fresh slice of lunch meat stuck to the sole of his shoe.\nBrown sued the District. The ensuing discovery generated declarations or deposition testimony from every person known to have entered the hallway between Friday afternoon, when the floor was swept, and Monday morning, when the accident occurred. These persons included the janitor who swept the floor, the employee who helped Brown unload computers and who had also opened the building earlier that morning, and a maintenance clerk. Although only employees of the District possessed keys to the building, nonemployees were often present. Indeed, three nonemployees had been in the hallway the morning of the accident: Brown, himself; a vendor who was in the building to repair tools; and a school bus driver who also worked for a vendor of telecommunications equipment. No one saw lunch meat on the hallway floor prior to the accident.\nOutside the building there was a picnic table where employees sometimes ate their lunches. However, no one had seen anyone eating at the table or in the hallway on the morning the accident occurred.\nBased on the uncontradicted evidence, the District moved for summary judgment under Government Code section 835.1 This statute sets out the conditions under which “a public entity is liable for injury caused by a dangerous condition of its property . . . .” (Ibid.) The statute requires a plaintiff to prove, among other things, that either of two conditions is true: “(a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or [ft] (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” (Ibid.)\nBecause there was no evidence that the District had notice of the allegedly dangerous condition, the superior court correctly ruled that the District could not be liable under subdivision (b). (§ 835, subd. (b).) Brown does not challenge this ruling.\nThe District also moved for summary judgment under subdivision (a), reasoning that there was no evidence to show that an employee of the *825District had created the allegedly dangerous condition. (See § 835, subd. (a).) In opposition, Brown argued that the doctrine of res ipsa loquitur applied and that, because the doctrine permits the trier of fact to presume negligence, summary judgment was inappropriate. The trial court rejected Brown’s argument, granted the motion for summary judgment, and entered judgment for the District.\nThe Court of Appeal reversed. The court held both that the doctrine of res ipsa loquitur applied under the facts of the case and that the resulting presumption of negligence established a prima facie case under section 835, subdivision (a). We granted review to consider these issues.\nDiscussion\nA. Application of the Res Ipsa Loquitur Doctrine.\nThe first question before us is whether the Court of Appeal correctly applied the doctrine of res ipsa loquitur to the undisputed evidence. The question has this significance: Brown, in order to recover damages from the District, must prove that “[a] negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition.” (§ 835, subd. (a).) Because there is no evidence that the lunch meat came to be on the floor through an employee’s negligence, the District is entitled to summary judgment unless the doctrine of res ipsa loquitur would permit a jury to infer that fact.\nThe doctrine of res ipsa loquitur is too familiar to warrant a lengthy explanation. In brief, certain kinds of accidents are so likely to have been caused by the defendant’s negligence that one may fairly say “the thing speaks for itself.” The Latin equivalent of this phrase, “res ipsa loquitur,” was first applied to a barrel of flour that rolled out of the window of the defendant’s warehouse onto the plaintiff. (Byrne v. Boadle (1863) 159 Eng.Rep. 299, 300.) As later courts repeated the phrase, it evolved into the name of a rule for determining whether circumstantial evidence of negligence is sufficient. The procedural and evidentiary consequences that follow from the conclusion that an accident “speaks for itself’ vary from jurisdiction to jurisdiction.\nIn California, the doctrine of res ipsa loquitur is defined by statute as “a presumption affecting the burden of producing evidence.” (Evid. Code, § 646, subd. (b).) The presumption arises when the evidence satisfies three conditions: “ ‘(1) the accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an *826agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.’ ” (Ybarra v. Spangard (1944) 25 Cal.2d 486, 489 [154 P.2d 687, 162 A.L.R. 1258], quoting Prosser, Torts, p. 295.) A presumption affecting the burden of producing evidence “require[s] the trier of fact to assume the existence of the presumed fact” unless the defendant introduces evidence to the contrary. (Evid. Code, § 604; see also id., § 646, subd. (c).) The presumed fact, in this context, is that “a proximate cause of the occurrence was some negligent conduct on the part of the defendant. . . .” (Id., § 646, subd. (c)(1).) If the defendant introduces “evidence which would support a finding that he was not negligent or that any negligence on his part was not a proximate cause of the occurrence,” the trier of fact determines whether defendant was negligent without regard to the presumption, simply by weighing the evidence. (Id., § 646, subd. (c); see also id., § 604.)\nExperience teaches that slips and falls are not so likely to be the result of negligence as to justify a presumption to that effect. As Prosser and Keeton explain, “there are many accidents which, as a matter of common knowledge, occur frequently enough without anyone’s fault. . . . [A]n ordinary slip and fall . . . will not in [itself] justify the conclusion that negligence is the most likely explanation; and to such events res ipsa loquitur does not apply.” (Prosser & Keeton, Torts (5th ed. 1984) § 39, p. 246.) This is true even when the fall is associated with a slippery object, because objects all too often appear on floors without sufficient explanation. For this reason, “something slippery on the floor affords no res ipsa case against the owner of the premises, unless it is shown to have been there long enough so that he should have discovered and removed it.” (Id., at pp. 255-256.)\nThis common wisdom is reflected in a legion of cases from many jurisdictions declaring as a general rule that res ipsa loquitur does not apply to slip and fall cases.2 The analysis in Oldenburg v. Sears, Roebuck & Co., supra, 152 Cal.App.2d 733, in which the plaintiff slipped on a piece of *827chalk, is typical: “The burden is on the plaintiff to prove every essential fact on which she relies [citation]. This burden is not met merely by proof that plaintiff invitee stepped on something while on invitor’s premises and thereby was caused to fall and receive injuries, for ‘[n]o inference of negligence arises based simply upon proof of a fall upon the owner’s floor. The doctrine of res ipsa loquitur is not applicable to such cases.’ [Citations]” (Id, at p. 741.)\nWhile we need not go so far as to say that res ipsa loquitur can never apply to a slip and fall, the evidence in this case fittingly illustrates why such an occurrence ordinarily does not “speak for itself.” The lunch meat that apparently caused the accident went undetected until Brown fell; afterward, it was found stuck to the sole of his shoe. To be sure, the lunch meat might have been dropped by an employee, but it might also have been dropped by a visitor, tracked in from the outside or from Brown’s own van, transported by an animal, or fallen from an object carried down the hall, even from one of the computers that Brown was delivering. Some of these explanations do not presuppose negligence, and none is inherently more probable than the others. In short, there is no basis whatever for a finding that either of the doctrine’s first two conditions existed, i.e., (1) that the accident was of a kind which ordinarily does not occur in the absence of someone’s negligence, or (2) that it was caused by an agency or instrumentality within the defendant’s exclusive control.\nFrom this perspective, the case is practically identical with Gold v. Arizona Realty etc. Co., supra, 12 Cal.App.2d 676, in which the plaintiff slipped on a foreign substance in the defendant’s apartment building. The court held that res ipsa loquitur did not apply because “[t]he mere fact that plaintiff tripped and fell downstairs does not of itself create a situation in which the doctrine can be invoked. [Citation.] It was not shown that the ‘substance’ which caused plaintiffs fall had been on the stairway any length of time or that it had been left there by an agent of defendant. [Citation.] To determine how the ‘substance’ became attached to plaintiff’s shoe one must enter the field of conjecture. It may have been picked up from the street as *828she entered the apartment house or it may have dropped on the stairway by someone not in defendant’s employ.” (Id., at p. 677.)\nIn the case before us, one would also have to enter the field of conjecture to determine how lunch meat came to be underneath Brown’s foot. That is what the Court of Appeal appears to have done. To support its conclusion that Brown’s accident was of a type that would not ordinarily occur in the absence of negligence, the court reasoned that “[sjomeone must have dropped the lunch meat on the hallway floor.” Perhaps so, perhaps not. The evidence is silent. But even if one conjectures that it was dropped, one must pile conjecture upon conjecture to decide that an employee was responsible. The Court of Appeal also asserted that “[cjommon experience indicates Brown probably would not have slipped on lunch meat in the hallway in the absence of someone’s negligence.” However, this assertion both contradicts the nearly universal experience reflected in judicial opinions (see the cases cited in fn. 2, ante) and overlooks equally probable explanations of the accident.\nConjecture also appears to underlie the Court of Appeal’s conclusion that the lunch meat was under the District’s exclusive control. Even granting the premise that the concept of exclusive control is somewhat flexible, and that “the plaintiff need not exclude all other persons who might possibly have been responsible” (Zentz v. Coca Cola Bottling Co. (1952) 39 Cal.2d 436, 443-444 [247 P.2d 344]), the evidence in this case still does not support the' necessary conclusion that “it is more probable than not that the injury was the result of the defendant’s negligence.” (Id., at p. 443, first italics added.)\nAccordingly, the Court of Appeal erred in holding that the evidence was sufficient to raise a presumption of negligence under the doctrine of res ipsa loquitur. Because there is no evidence to show that an employee of the District created the allegedly dangerous condition (§ 835, subd. (a)), the superior court’s order granting the District’s motion for summary judgment was correct.3\nB. Interpretation of Section 835.\nAs we have discussed, the Court of Appeal erred in holding that the facts of this case satisfied the requirements of the res ipsa loquitur doctrine. This was not, however, the only error in the decision below. It was also *829incorrect to hold that plaintiff Brown could use res ipsa loquitur to establish a prima facie case against the District under section 835. This additional error independently requires the judgment to be reversed.\nBrown’s suit against the District is not an ordinary negligence case; it is an action under section 835. This is because a public entity is not liable for injuries except as provided by statute (§ 815) and because section 835 sets out the exclusive conditions under which a public entity is liable for injuries caused by a dangerous condition of public property. “[T]he intent of the [Tort Claims Act] is not to expand the rights of plaintiffs in suits against governmental entities, but to confine potential governmental liability to rigidly delineated circumstances: immunity is waived only if the various requirements of the act are satisfied.” (Williams v. Horvath (1976) 16 Cal.3d 834, 838 [129 Cal.Rptr. 453, 548 P.2d 1125].)\nSection 835 declares that, “[e]xcept as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: [f] (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or [f] (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”\nBecause there was no evidence that the District had notice of the allegedly dangerous condition, the superior court correctly ruled that the District could not be liable under section 835, subdivision (b). Brown does not challenge this ruling. Instead, he argues that an employee of the district “created the dangerous condition” within the meaning of subdivision (a). Based on the assumption that the doctrine of res ipsa loquitur applies, Brown argues that the resulting presumption of negligence satisfies the requirements of liability under subdivision (a).\nIn opposition, the District argues that the res ipsa loquitur presumption does not satisfy the conditions for holding a public entity liable under subdivision (a). According to the District, the Legislature did not intend to subject public entities to liability for all types of employee negligence. Instead, the Legislature limited the liability of public entities to cases in which a public employee “created” the dangerous condition. (§ 835, subd. (a).) According to the District, the Legislature did not require that a public *830entity have notice of a dangerous condition “created” by a public employee only because, in such cases, it is fair to presume that the entity has notice. Thus, the statutory term “created” must be understood to require the type of involvement by a public employee that would justify a presumption of notice. Because res ipsa loquitur can apply even without such involvement by a public employee, the doctrine does not, according to the District, satisfy the conditions of liability under subdivision (a).\nBrown reads another provision of the Tort Claims Act, namely section 830.5, as an express legislative declaration that the doctrine of res ipsa loquitur can be used to establish a public entity’s liability. Section 830.5 provides that, “[ejxcept where the doctrine of res ipsa loquitur is applicable, the happening of the accident which results in the injury is not in and of itself evidence that public property was in a dangerous condition.” (§ 830.5, subd. (a).) The District, however, reads the statute more narrowly to mean that res ipsa loquitur can be used to show that “public property was in a dangerous condition” (ibid.', cf. § 830, subd. (a) [definition of “dangerous condition”]) but not to satisfy the other elements of liability.\nBecause the statute is ambiguous, we consult the legislative history. (Kennedy Wholesale, Inc. v. State Bd. of Equalization (1991) 53 Cal.3d 245, 250 [279 Cal.Rptr. 325, 806 P.2d 1360].) The history begins in 1961, when this court held that the doctrine of sovereign immunity would no longer protect public entities from civil liability for their torts. (Muskopf v. Coming Hospital Dist. (1961) 55 Cal.2d 211 [11 Cal.Rptr. 89, 359 P.2d 457].) The Legislature responded by suspending the decision’s effect (Stats. 1961, ch. 1404, pp. 3209-3210) and by directing the California Law Revision Commission (hereafter Commission) to conduct a study of whether the doctrine of sovereign immunity should be abolished or revised. Following extensive research, the Commission published a recommendation (Recommendation Relating to Sovereign Immunity, No. 1, Tort Liability of Public Entities and Public Employees, 4 Cal. Law Revision Com. Rep. (Jan. 1963) p. 801), which became the Tort Claims Act (Stats. 1963, ch. 1681, p. 3266).\nSection 830.5, the only provision of the Tort Claims Act that mentions res ipsa loquitur, was added to the proposed act by the Senate. (1 Sen. J. (1963 Reg. Sess.) p. 518 [Sen. Bill No. 42, Amend. No. 19].) The Senate explained the amendment’s purpose with this comment: “Subdivision (a) of [section 830.5] makes applicable to public entities the same rule that applies in actions against private persons. It overrules cases that indicate that the happening of the accident is evidence that public property was in a dangerous condition. However, the section does not prevent the use of the doctrine *831of res ipsa loquitur in appropriate cases.” (Sen. com. comment to § 830.5, reprinted at 32 West’s Ann. Gov. Code (1980) at p. 281.)\nThus, the Senate amendment dealing with res ipsa loquitur was expressly intended to abrogate a rule to the effect that “the happening of the accident is evidence that public property was in a dangerous condition.” (Sen. committee com. to § 830.5, reprinted in 32 West’s Ann. Gov. Code, supra, at p. 281.) The rule had occasionally led to the imposition of liability on public entities for relatively trivial defects in, and unforeseeable uses of, public property. (See, e.g., Johnson v. Palo Alto (1962) 199 Cal.App.2d 148, 150-151 [18 Cal.Rptr. 484] [a difference in height of one-half inch between sidewalk edges caused plaintiff to fall]; Gentekos v. City & County of S. F. (1958) 163 Cal.App.2d 691, 695, 697 [329 P.2d 943] [similar facts]; Balkwill v. Stockton (1942) 50 Cal.App.2d 661, 664, 668 [123 P.2d 596] [holes in sidewalk]; Hook v. Sacramento (1931) 118 Cal.App. 547, 551-552 [5 P.2d 643] [similar facts]; Bauman v. San Francisco (1940) 42 Cal.App.2d 144, 149, 154 [108 P.2d 989] [plaintiff injured by baseball in playground intended for small children]; see also Van Alstyne, Cal. Government Tort Liability Practice (Cont.Ed.Bar 1980) appen., p. 633 [further references to Van Alstyne are to this work].) The Commission had already proposed to eliminate liability for trivial defects and unforeseeable uses by excluding them from the definition of “dangerous condition.”4 This proposal, which the Legislature also adopted, eventually became section 830, subdivision (a). The Senate amendment concerning res ipsa loquitur (§ 830.5) merely reinforced the point.\nSection 830.5 thus eliminates any inference of dangerousness that arises from the mere “happening of the accident.” (§ 830.5, subd. (a).) On the other hand, the Legislature may have intended to permit an inference of dangerousness “where the doctrine of res ipsa loquitur is applicable . . . .” (Ibid.; see also Sen. committee com. to § 830.5, reprinted in 32 West’s Ann. Gov. Code, supra, at p. 281.) It might be possible to reconcile this limited use of res ipsa loquitur with the Legislature’s intent to narrow liability: Use of the doctrine to infer dangerousness would not ordinarily create liability for trivial defects or unforeseeable uses because res ipsa loquitur applies only when the accident was “of a kind which ordinarily does not occur in the absence of someone’s negligence . . . .” (Ybarra v. Spangard, supra, 25 Cal.2d at p. 489, internal quotations omitted.)\n*832Professor Van Alstyne5 offers a similar interpretation of section 830.5: “The requirement that the condition must have created a reasonably foreseeable risk of the kind of injury that did occur (see [§ 835] . . .) seems to be within the logic of the res ipsa rationale, . . . and the doctrine probably would supply this element in most situations. It appears to be consistent with the basis for res ipsa loquitur—that the injury is of a kind that would not have occurred except through the negligent construction or maintenance of the instrumentality by the party having exclusive control of it.” (Van Alstyne, supra, § 3.80, p. 307.)\nThus, it appears that the doctrine of res ipsa loquitur can be used to establish some of the statutory conditions for liability. Although we need not address the issue in this case (see fn. 4, ante), perhaps the doctrine might be used “in appropriate cases” to show that the public entity’s property was in a dangerous condition. (See Sen. committee com. to § 830.5, reprinted in 32 West’s Ann. Gov. Code, supra, at p. 281; cf. § 830, subd. (a).) Moreover, it is consistent with the logic of res ipsa loquitur to permit its use to show that a particular act or omission was negligent. However, to return to Professor Van Alstyne’s analysis, “[i]t is doubtful. . . [whether the res ipsa loquitur] doctrine would also support an inference, without additional evidence, that the public entity either created the condition or had notice of it in sufficient time to protect against the injury. [§ 835.] . . . These liability requirements appear to be beyond the legislative intent regarding applicability of the res ipsa doctrine . . . .” (Van Alstyne, supra, § 3.80, pp. 307-308, italics added.)\nThe parties dispute whether Professor Van Alstyne’s conclusion accurately reflects legislative intent. However, whether or not one accepts the professor’s conclusion one may at least accept his premise without much controversy: The res ipsa loquitur presumption can be used to establish those conditions of liability that the presumption logically tends to establish.\nThe res ipsa loquitur presumption, under California law, is that “a proximate cause of the occurrence was some negligent conduct on the part of the defendant. . . .” (Evid. Code, § 646, subd. (c)(1).) Thus, if the Legislature had intended to hold a public entity liable for all types of negligent conduct by public employees, we would have little hesitation in holding that res ipsa loquitur satisfied the statutory conditions of liability. However, it appears that the Legislature intended to impose liability on public entities only in a *833narrow set of cases. This narrowing of liability is accomplished by the requirement that an employee of the public entity, have “created” the dangerous condition. (§ 835, subd. (a).)\nThe intent of section 835 is set out in the legislative committee comment, which repeats the relevant comments of the Commission. The comment explains that section 835 “is similar to the Public Liability Act of 1923, under which cities, counties and school districts [were] liable for injuries proximately caused by the dangerous conditions of their property. [¶] Although there is no provision similar to subdivision (a) in [the former act], the courts have held that entities are liable under that act for dangerous conditions created by the negligence or wrongful acts of their employees. Pritchard v. Sully-Miller Contracting Co. [(1960)] 178 Cal.App.2d 246 .. . .” (Sen. committee com. to § 835, reprinted at 32 West’s Ann. Gov. Code, supra, p. 301, italics added; see also Recommendation Relating to Sovereign Immunity, supra, 4 Cal. Law Revision Com. Rep. at p. 854 [verbatim].)\nThe judicial decisions to which the comment refers addressed what was, at the time, perceived to be an unfair loophole in the Public Liability Act of 1923. (Former § 53051, added by Stats. 1949, ch. 81, § 1, p. 285; repealed by Stats. 1963, ch. 1681, § 18, p. 3286.) Under the former act, a public entity was liable for injuries caused by a dangerous condition of its property only when the “legislative body, board, or person authorized to remedy the condition” had “knowledge or notice” and, “[flor a reasonable time after acquiring knowledge or receiving notice, failed to remedy the condition . . . .” (Former § 53051, Stats. 1949, ch. 81, § 1, p. 285.) Over time, a rule evolved to the effect that the statutory notice requirements did not apply to dangerous conditions that had been deliberately created by public employees because, in such circumstances, knowledge was presumed.\nThe opinion cited in the comment (Pritchard v. Sully-Miller Contracting Co. (1960) 178 Cal.App.2d 246 [2 Cal.Rptr. 830] (Pritchard)) recognizes this exception to the former statute’s notice requirement. The plaintiff in Pritchard, who had been injured in an automobile accident, alleged that the accident was caused by the manner in which a city employee had timed traffic signals. The trial court instructed the jury that the plaintiff did not need to show, as the former statute seemed to require, that the “legislative body, board, or person authorized to remedy the condition” had received notice. (Former § 53051, Stats. 1949, ch. 81, § 1, p. 285; see Pritchard, supra, 178 Cal.App.2d at pp. 256-257.) The jury found for the plaintiff, and the Court of Appeal upheld the verdict, reasoning that ‘the fact that the city itself deliberately created the dangerous condition dispensed with the necessity of the notice contemplated by section 53051 . . . .” (Pritchard, supra, 178 Cal.App.2d at p. 254.)\n*834Pritchard accurately followed Fackrell v. City of San Diego (1945) 26 Cal.2d 196 [157 P.2d 625, 158 A.L.R. 773] (Fackrell), in which we held that a city was presumed to know of the dangerous condition presented by a poorly designed sidewalk improvement. We explained that where an improvement “has been planned by city officers and constructed in accordance with such plan, and [where] by carrying out the plan a dangerous and defective condition has been created, no further proof is needed to charge the city with notice of that condition.” (Id., at p. 203.)\nIn short, Fackrell and Pritchard applied the “well established” rule that a public agency was presumed to have notice of a dangerous condition of property that was the “natural and probable consequence” of the entity’s own work. (Fackrell, supra, 26 Cal.2d at pp. 203, 206; cf. Pritchard, supra, 178 Cal.App.2d at p. 254.)6\n The language of the Tort Claims Act, which the Legislature explained by reference to Pritchard, was expressly intended to codify this rule. This is clear from the legislative committee comment: “Although there is no provision similar to [section 835,] subdivision (a) in the Public Liability Act of 1923, the courts have held that entities are liable under that act for dangerous conditions created by the negligent or wrongful acts of their employees. Pritchard v. Sully-Miller Contracting Co., [supra]. . . .” (Sen. committee com. to § 835, supra, reprinted at 32 West’s Ann. Gov. Code, § 835, p. 301.)\nThe Legislature’s reference to Pritchard, supra, 178 Cal.App.2d 246, can only mean that it intended to adopt the rule of that case, i.e., that a public entity is liable for a dangerous condition created by an employee under circumstances in which the employee’s involvement makes it fair to presume that the entity had notice of the condition. Indeed, the Commission in its recommendation had already explained the same concept in different words: “The dangerous conditions statute should provide specifically that a governmental entity is liable for dangerous conditions of property created by the negligent or wrongful act of an employee acting within the scope of his employment even if no showing is made that the entity had any other notice of the existence of the condition or an opportunity to make repairs or take precautions against injury. The courts have construed the existing Public Liability Act as making public entities liable for negligently created defects.” (Recommendation Relating to Sovereign Immunity, supra, 4 Cal. Law Revision Com. Rep. at p. 824, italics added.)\n*835Professor Van Alstyne’s analysis reinforces this interpretation of section 835, subdivision (a): “The creation by the public entity of a physical facility or condition that is ‘dangerous’ dispenses with the necessity of notice, for the entity presumably knows already that it has affirmatively created the condition, and thus has notice that it is dangerous.” (Van Alstyne, supra, § 3.17b, p. 208, italics added.)\nWhile there is, thus, ample evidence that section 835, subdivision (a), was intended to incorporate the Pritchard rule, there is no evidence whatever that the Legislature intended to extend the liability of public entities to cases in which there was no involvement by a public employee and, thus, no basis for presuming that the entity had notice of the dangerous condition.\nThe Court of Appeal, which reached a different conclusion, reasoned that “the notice requirements of [section 835, subdivision] (b) have no application” to cases of employee negligence under subdivision (a). It is true that the notice requirements of subdivision (b) do not apply to cases brought under subdivision (a). However, it does not follow that the Legislature intended to impose liability on a public entity for a dangerous condition absent a showing that a public employee was involved in its creation.\nAgain, the legislative history is instructive. The former Public Liability Act imposed liability for a dangerous condition of public property only when the governing board or person “authorized to remedy the condition” had “knowledge or notice.” (Former § 53051, Stats. 1949, ch. 81, § 1, p. 285; see Recommendation Relating to Sovereign Immunity, supra, 4 Cal. Law Revision Com. Rep. at p. 825.) The Commission recommended that this requirement be abolished. However, the reason for abolishing the requirement was not to hold public entities liable for unknown dangers but to apply the rules that govern the imputation of knowledge from employees to employers in ordinary civil cases.\nThis is evident from the Commission’s explanation of the proposed section 835: “The requirement that the dangerous condition of public property be known to the governing board or a person authorized to remedy the defect should be repealed. The ordinary rules for imputing the knowledge of an employee to an employer should be applicable to public entities just as they are applicable to private owners and occupiers of land. Under these rules, the knowledge of an employee concerning a dangerous condition is imputed to the employer if under all the circumstances it would have been unreasonable for the employee not to have informed his employer. The knowledge of employees will not be imputed to the entity in other circumstances.” (Recommendation Relating to Sovereign Immunity, supra, 4 Cal. Law Revision Com. Rep. at p. 825.)\n*836Subdivisions (a) and (b) of section 835 obviously address two different types of cases. However, what distinguishes the two types of cases is not simply whether the public entity has notice of the dangerous condition. Instead, what distinguishes the two cases in practice is who created the dangerous condition. Because an entity must act through its employees, virtually all suits brought on account of dangerous conditions created by the entity will be brought under subdivision (a). In contrast, subdivision (b) can also support suits based on dangerous conditions not created by the entity or its employees.\nA public entity can be liable for a dangerous condition not of its own making if the entity had “actual or constructive notice ... a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” (§ 835, subd. (b).) To be sure, there is no corresponding requirement that the public entity have “notice” of dangerous conditions created by the entity itself or its employees. However, there is no such requirement only because “[t]he creation by the public entity of a physical facility or condition that is ‘dangerous’ dispenses with the necessity of notice, for the entity presumably knows already that it has affirmatively created the condition, and thus has notice that it is dangerous.” (Van Alstyne, supra, § 3.17b, p. 208, italics added; cf. Sen. committee com. to § 835, supra, reprinted at 32 West’s Ann. Gov. Code, § 835, at p. 301.)\nWith this background, it is apparent that the res ipsa loquitur presumption does not satisfy the requirements for holding a public entity liable under section 835, subdivision (a). Res ipsa loquitur requires the plaintiff to show only (1) that the accident was of a kind which ordinarily does not occur in the absence of negligence, (2) that the instrumentality of harm was within the defendant’s exclusive control, and (3) that the plaintiff did not voluntarily contribute to his or her own injuries. (Ybarra v. Spangard, supra, 25 Cal.2d at p. 489.) Subdivision (a), in contrast, requires the plaintiff to show that an employee of the public entity “created” the dangerous condition; in view of the legislative history, which we have already discussed, the term “created” must be defined as the sort of involvement by an employee that would justify a presumption of notice on the entity’s part.\nIt is, thus, evident that the elements of res ipsa loquitur do not match the elements of liability under the Government Code. To illustrate, the plaintiff in a case based on a dangerous condition of property can satisfy the elements of res ipsa loquitur without showing that the defendant or its employee created the condition. We have, for example, held that it was proper to instruct on res ipsa loquitur in a case where liability was based on an apartment owner’s failure to discover that an exterior stairway had become *837dangerous through natural deterioration. (Di Mare v. Cresci (1962) 58 Cal.2d 292 [23 Cal.Rptr. 772, 373 P.2d 860].) When a public entity is the defendant, however, the Legislature has expressly declared that such cases create liability only if the “public entity had actual or constructive notice of the dangerous condition under [s]ection 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” (§ 835, subd. (b).) Moreover, under section 835.2 the public entity may defend by showing that a cost-effective inspection system would not have discovered the dangerous condition. (§ 835.2, subd. (b)(1).) These carefully crafted limits on the liability of public entities would be nullities if a plaintiff could establish a prima facie case of liability under section 835, subdivision (a), simply by proving the elements of res ipsa loquitur.\nOne searches the reported decisions in vain for an opinion applying section 835, subdivision (a), to facts like those of the case before us. Instead, one finds cases in which public employees actively created dangerous conditions under circumstances that would clearly justify a presumption of notice on the part of a public employer. To illustrate, in Warden v. City of Los Angeles (1975) 13 Cal.3d 297, 300 [118 Cal.Rptr. 487, 530 P.2d 175], municipal employees placed a sewer pipe just below the surface of a navigable watercourse without adequate warnings. In Hilts v. County of Solano (1968) 265 Cal.App.2d 161, 164-166, 172 [71 Cal.Rptr. 275], county employees constructed a dangerous highway intersection by grading the intersecting roadways at different elevations, by planting trees that obstructed vision, and by placing misleading signs and center lines. And in Davis v. Cordova Recreation & Park Dist. (1972) 24 Cal.App.3d 789, 792-793 [101 Cal.Rptr. 358], municipal employees dug a deep “fish hole” in the middle of a pond located on a children’s playground.\nIn cases such as these, a public employee’s involvement in creating the dangerous condition provides a basis for presuming that the public entity has notice of the condition.7 This is because a public entity is presumed to have knowledge of a dangerous condition that is the “natural and probable consequence” of its work. (Fackrell, supra, 26 Cal.2d at p. 206.) Thus, the facts of such cases satisfy the assumption that underlies the Legislature’s waiver of sovereign immunity for dangerous conditions created by public employees: “the entity presumably knows already that it has affirmatively created the condition, and thus has notice that it is dangerous.” (Van Alstyne, supra, § 3.17b, p. 208.)\n*838In contrast, to hold that the res ipsa loquitur presumption, alone, established a prima facie case under section 835, subdivision (a), would permit a jury in this case to find the District liable even though there was no evidence that an employee of the District was involved in creating the allegedly dangerous condition. In such a case, the assumptions that underlie the Legislature’s waiver of sovereign immunity for dangerous conditions created by public employees do not apply. Thus, to accept Brown’s view of the statute would appear to extend liability further than the Legislature intended.\nAccordingly, we conclude that the res ipsa loquitur presumption does not by itself establish a prima facie case of liability against a public entity under section 835, subdivision (a). The Court of Appeal’s holding to the contrary was erroneous.\nDisposition\nThe judgment of the Court of Appeal is reversed.\nLucas, C. J., Kennard, J., Arabian, J., Baxter, J., and George, J., concurred.\n\nAll further references to statutes are to the Government Code except as noted or as the context may require.\n\n\nCases from this state include, for example, Oldenburg v. Sears, Roebuck & Co. (1957) 152 Cal.App.2d 733, 741 [314 P.2d 33]; Vaughn v. Montgomery Ward & Co. (1950) 95 Cal.App.2d 553, 556 [213 P.2d 417]; Gold v. Arizona Realty etc. Co. (1936) 12 Cal.App.2d 676, 677 [55 P.2d 1254]; Finch v. Willmott (1930) 107 Cal.App. 662, 666 [290 P. 660]; and Marple v. Manspeaker (1928) 88 Cal.App. 682, 685 [263 P. 1022], Cf. Dennis v. Carolina Pines Bowling Center (1967) 248 Cal.App.2d 369, 372 [56 Cal.Rptr. 453]; Owen v. Beau-champ (1944) 66 Cal.App.2d 750, 754 [152 P.2d 756].\nFor similar cases from other jurisdictions see, for example, Ex parte Travis (Ala. 1982) 414 So.2d 956, 958; Foster v. Kwik Chek Super Markets, Inc. (1969) 284 Ala. 348 [224 So.2d 895, 897]; Great Atlantic & Pacific Tea Co. v. Bennett (1958) 267 Ala. 538 [103 So.2d 177, 178]; Rhodes v. El Rancho Markets (1969) 9 Ariz.App. 576 [454 P.2d 1016, 1020]; Safeway Stores, Inc. v. Willmon (1986) 289 Ark. 14 [708 S.W.2d 623, 624]; Ogden Estate v. Decatur County Hosp. (Ind.App. 1987) 509 N.E.2d 901, 904; Douglas v. Great Atlantic & Pac. Tea Co. *827(Miss. 1981) 405 So.2d 107, 111; Daniels v. Morgan & Lindsay, Inc. (Miss. 1967) 198 So.2d 579, 584; F.W. Woolworth Co. v. Stokes (Miss. 1966) 191 So.2d 411, 415; Sears, Roebuck & Company v. Tisdale (Miss. 1966) 185 So.2d 916, 917; Hallett v. Furr’s, Inc. (1963) 71 N.M. 377 [378 P.2d 613, 617]; Mahoney v. J.C. Penney Co. (1962) 71 N.M. 244 [377 P.2d 663, 669]; Kitts v. Shop Rite Foods, Inc. (1958) 64 N.M. 24 [323 P.2d 282, 284]; Haynes v. Horton (1964) 261 N.C. 615 [135 S.E.2d 582, 583]; Prame v. Ames Department Stores, Inc. (1991) 176 A.D.2d 1215 [577 N.Y.S.2d 188]; Murrell v. Handley (1957) 245 N.C. 559 [96 S.E.2d 717, 720]; Barnes v. Hotel O. Henry Corp. (1949) 229 N.C. 730 [51 S.E.2d 180, 181]; Tweed v. First Nat. Bldg. Corp. (1950) 203 Okla. 31 [218 P.2d 356, 358]; German v. Kienow’s Food Stores (1967) 246 Ore. 334 [425 P.2d 523, 525]; Franklin v. Safeway Stores, Inc. (Tex.Civ.App. 1973) 504 S.W.2d 514, 517.\n\n\nFor the first time in this court, Brown argues that there is sufficient evidence to support a finding of negligence even without the benefit of res ipsa loquitur. We do not ordinarily consider issues that were not raised below (Cal. Rules of Court, rule 29(b)(1); see Marshall v. Bankers Life & Casualty Co. (1992) 2 Cal.4th 1045, 1059 [10 Cal.Rptr.2d 72, 832 P.2d 573]) and see no compelling reason to depart from the ordinary rule in this case.\n\n\n“ ‘Dangerous condition’ means a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” (§ 830, subd. (a).)\nThe lower courts did not decide whether lunch meat on the floor can amount to a “dangerous condition” under section 830. Nor do we.\n\n\nProfessor Van Alstyne was the Commission’s research consultant on the subject of sovereign immunity. The study he prepared for the Commission is published as A Study Relating to Sovereign Immunity (Jan. 1963) 5 California Law Revision Commission Report page 1.\n\n\nSee also Watson v. City of Alameda (1933) 219 Cal. 331, 334 [26 P.2d 286] (city employees marked a crosswalk with slippery paint); Bigelow v. City of Ontario (1940) 37 Cal.App.2d 198, 204 [99 P.2d 298] (city employees created a dangerous roadway); Sandstoe v. Atchison, T. & S. F. Ry. Co. (1938) 28 Cal.App.2d 215, 219 [82 P.2d 216] (city employees painted a misleading center line on a road); Wise v. City of Los Angeles (1935) 9 Cal.App.2d 364, 367 [49 P.2d 1122] (city employee dug and left a hole in street).\n\n\nThis is not to say that liability under section 835, subdivision (a), can never be based on a negligent omission. For example, if an employee whose job it is to inspect or to repair a facility neglects that duty, such an employee may well be sufficiently involved in creating a dangerous condition to give rise to liability under section 835, subdivision (a).\n\n",
"ocr": false,
"opinion_id": 9789746
}
] |
California Supreme Court
|
California Supreme Court
|
S
|
California, CA
|
743,951 | null | 1997-06-25 | false |
birch-v-united-states
|
Birch
|
Birch v. United States
| null | null | null | null | null | null | null | null | null | null | null | null | 0 |
Published
| null | null |
[
"119 F.3d 9"
] |
[
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": "http://bulk.resource.org/courts.gov/c/F3/119/119.F3d.9.95-3053.html",
"author_id": null,
"opinion_text": "119 F.3d 9\n Birchv.U.S.*\n NO. 95-3053\n United States Court of Appeals,Eleventh Circuit.\n June 25, 1997\n Appeal From: N.D.Fla. ,No.9250112MCARV\n \n 1\n Affirmed.\n \n \n \n *\n Fed.R.App.P. 34(a); 11th Cir.R. 34-3\n \n \n ",
"ocr": false,
"opinion_id": 743951
}
] |
Eleventh Circuit
|
Court of Appeals for the Eleventh Circuit
|
F
|
USA, Federal
|
848,068 | null | 2005-10-31 | false |
people-v-gresehover
|
GRESEHOVER
|
People v. GRESEHOVER
| null | null | null | null | null | null | null | null | null | null | null | null | 0 |
Published
| null | null |
[
"705 N.W.2d 121"
] |
[
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": 1,
"download_url": "http://publicdocs.courts.mi.gov:81/SCT/PUBLIC/ORDERS/20051031_S128506_39_128506_2005-10-31_or.pdf",
"author_id": null,
"opinion_text": "\n705 N.W.2d 121 (2005)\n474 Mich. 895-911\nPEOPLE\nv.\nGRESEHOVER.\nNo. 128506.\nSupreme Court of Michigan.\nOctober 31, 2005.\nLeave to Appeal Denied.\nSC: 128506, COA: 251457.\nOn order of the Court, the application for leave to appeal the February 24, 2005 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.\n",
"ocr": false,
"opinion_id": 848068
}
] |
Michigan Supreme Court
|
Michigan Supreme Court
|
S
|
Michigan, MI
|
465,496 | null | 1986-02-13 | false |
hammond-v-cir
|
Hammond
|
Hammond v. C.I.R
| null | null | null | null | null | null | null | null | null | null | null | null | 0 |
Published
| null | null |
[
"785 F.2d 304"
] |
[
{
"author_str": null,
"per_curiam": false,
"type": "010combined",
"page_count": null,
"download_url": "http://bulk.resource.org/courts.gov/c/F2/785/785.F2d.304.85-1891.html",
"author_id": null,
"opinion_text": "785 F.2d 304\n Hammondv.C.I.R.\n 85-1891\n United States Court of Appeals,Fourth Circuit.\n 2/13/86\n \n 1\n U.S.T.C.\n \n AFFIRMED\n ",
"ocr": false,
"opinion_id": 465496
}
] |
Fourth Circuit
|
Court of Appeals for the Fourth Circuit
|
F
|
USA, Federal
|
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