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63,290	Per Curiam, Prado, Reavley, Wiener	2008-08-20	false	united-states-v-urbina-perez	Urbina-Perez	United States v. Urbina-Perez	UNITED STATES of America, Plaintiff-Appellee v. Oscar URBINA-PEREZ, Defendant-Appellant	James Lee Turner, Assistant U.S. Attorney, U.S. Attorney’s Office Southern District of Texas, Houston, TX, for Plaintiff-Appellee., Francisco Javier Montemayor, Jr., Laredo, TX, for Defendant-Appellant.	null	null	null	null	null	null	null	null	null	null	0	Unpublished	null	<parties data-order="0" data-type="parties" id="b740-22"> UNITED STATES of America, Plaintiff-Appellee v. Oscar URBINA-PEREZ, Defendant-Appellant. </parties><br><docketnumber data-order="1" data-type="docketnumber" id="b740-24"> No. 05-41658 </docketnumber><p data-order="2" data-type="misc" id="A0I2"> Summary Calendar. </p><br><court data-order="3" data-type="court" id="b740-25"> United States Court of Appeals, Fifth Circuit. </court><br><decisiondate data-order="4" data-type="decisiondate" id="b740-27"> Aug. 20, 2008. </decisiondate><br><attorneys data-order="5" data-type="attorneys" id="b740-28"> James Lee Turner, Assistant U.S. Attorney, U.S. Attorney’s Office Southern District of Texas, Houston, TX, for Plaintiff-Appellee. </attorneys><br><attorneys data-order="6" data-type="attorneys" id="b741-4"> <span citation-index="1" class="star-pagination" label="719"> *719 </span> Francisco Javier Montemayor, Jr., Laredo, TX, for Defendant-Appellant. </attorneys><br><p data-order="7" data-type="judges" id="b741-6"> Before REAVLEY, WIENER, and PRADO, Circuit Judges. </p>	[ "290 F. App'x 718" ]	[ { "author_str": "Per Curiam", "per_curiam": false, "type": "010combined", "page_count": 2, "download_url": "http://www.ca5.uscourts.gov/opinions\\unpub\\05/05-41658.0.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 August 20, 2008\n No. 05-41658\n Summary Calendar Charles R. Fulbruge III\n Clerk\n\nUNITED STATES OF AMERICA\n\n Plaintiff-Appellee\n\nv.\n\nOSCAR URBINA-PEREZ\n\n Defendant-Appellant\n\n\n Appeal from the United States District Court\n for the Southern District of Texas\n USDC No. 5:04-CR-1339-ALL\n\n\nBefore REAVLEY, WIENER, and PRADO, Circuit Judges.\nPER CURIAM:\n Oscar Urbina-Perez appeals the 77-month sentence imposed following his\nguilty plea conviction for attempted illegal reentry of a deported alien in\nviolation of 8 U.S.C. § 1326. Urbina-Perez argues that the district court erred\nin imposing a 16-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii)\nbased on his prior conviction for a crime of violence, a 1995 Arizona conviction\nfor aggravated assault on a peace officer. He contends that the statute of\nconviction, ARIZ. REV. STAT. ANN. § 13-1204(A)(5) and (C), encompasses conduct\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. 05-41658\n\namounting to simple assault, with the sole aggravating factor being the status\nof the victim as a peace officer. He contends that the offense does not qualify as\nan enumerated offense under the Guidelines because the offense falls outside of\nthe generic, contemporary meaning of aggravated assault.\n The Government concedes that in the light of United States v. Fierro-\nReyna, 466 F.3d 324 (5th Cir. 2006), the district court plainly erred in applying\na 16-level enhancement pursuant to § 2L1.2(b)(1)(A)(ii) based on Urbina-Perez’s\nArizona conviction for aggravated assault on a peace officer. Accordingly, we\nvacate Urbina-Perez’s sentence and remand for resentencing.\n SENTENCE VACATED; CASE REMANDED FOR RESENTENCING.\n\n\n\n\n 2\n\f", "ocr": false, "opinion_id": 63290 } ]	Fifth Circuit	Court of Appeals for the Fifth Circuit	F	USA, Federal
465,949	null	1985-11-12	false	roberson-v-department-of-air-force	Roberson	Roberson v. Department of Air Force	null	null	null	null	null	null	null	null	null	null	null	null	0	Published	null	null	[ "785 F.2d 323" ]	[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/785/785.F2d.323.85-2328.html", "author_id": null, "opinion_text": "785 F.2d 323\n Robersonv.Department of Air Force\n 85-2328\n United States Court of Appeals,Federal Circuit.\n 11/12/85\n MSPB\n Affirmed\n ", "ocr": false, "opinion_id": 465949 } ]	Federal Circuit	Court of Appeals for the Federal Circuit	F	USA, Federal
578,682	Eastern, Russell, Widener, Williams	1992-03-03	false	clayton-j-powell-darlene-w-powell-v-commissioner-of-internal-revenue	null	Clayton J. Powell Darlene W. Powell v. Commissioner of Internal Revenue, Clayton J. Powell Darlene W. Powell v. Internal Revenue Service	Clayton J. POWELL; Darlene W. Powell, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent; Clayton J. POWELL; Darlene W. Powell, Plaintiffs-Appellants, v. INTERNAL REVENUE SERVICE, Defendant-Appellee	Clayton J. Powell, Jr., Powell and Powell, P.C., Greenbelt, Md., argued (Darlene Wright Powell, on brief), for plaintiffs-appellants., Gilbert Steven Rothenberg, Tax Div., U.S. Dept, of Justice, Washington, D.C., argued (Shirley D. Peterson, Asst. Atty. Gen., Gary R. Allen, Janet K. Jones, on brief), for defendant-appellee.	null	null	null	null	null	null	null	Argued April 8, 1991.	null	null	15	Published	null	<parties id="b153-7"> Clayton J. POWELL; Darlene W. Powell, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. Clayton J. POWELL; Darlene W. Powell, Plaintiffs-Appellants, v. INTERNAL REVENUE SERVICE, Defendant-Appellee. </parties><br><docketnumber id="b153-16"> Nos. 89-1489, 89-1494. </docketnumber><br><court id="b153-17"> United States Court of Appeals, Fourth Circuit. </court><br><otherdate id="b153-18"> Argued April 8, 1991. </otherdate><br><decisiondate id="b153-19"> Decided March 3, 1992. </decisiondate><br><attorneys id="b154-5"> <span citation-index="1" class="star-pagination" label="54"> *54 </span> Clayton J. Powell, Jr., Powell and Powell, P.C., Greenbelt, Md., argued (Darlene Wright Powell, on brief), for plaintiffs-appellants. </attorneys><br><attorneys id="b154-6"> Gilbert Steven Rothenberg, Tax Div., U.S. Dept, of Justice, Washington, D.C., argued (Shirley D. Peterson, Asst. Atty. Gen., Gary R. Allen, Janet K. Jones, on brief), for defendant-appellee. </attorneys><br><judges id="b154-7"> Before RUSSELL and WIDENER, Circuit Judges, and WILLIAMS, United States District Judge for the Eastern District of Virginia, sitting by designation. </judges>	[ "958 F.2d 53" ]	[ { "author_str": "Widener", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/958/958.F2d.53.89-1494.89-1489.html", "author_id": null, "opinion_text": "958 F.2d 53\n 69 A.F.T.R.2d 92-800, 92-1 USTC P 50,147\n Clayton J. POWELL; Darlene W. Powell, Petitioners,v.COMMISSIONER OF INTERNAL REVENUE, Respondent.Clayton J. POWELL; Darlene W. Powell, Plaintiffs-Appellants,v.INTERNAL REVENUE SERVICE, Defendant-Appellee.\n Nos. 89-1489, 89-1494.\n United States Court of Appeals,Fourth Circuit.\n Argued April 8, 1991.Decided March 3, 1992.\n \n Clayton J. Powell, Jr., Powell and Powell, P.C., Greenbelt, Md., argued (Darlene Wright Powell, on brief), for plaintiffs-appellants.\n Gilbert Steven Rothenberg, Tax Div., U.S. Dept. of Justice, Washington, D.C., argued (Shirley D. Peterson, Asst. Atty. Gen., Gary R. Allen, Janet K. Jones, on brief), for defendant-appellee.\n Before RUSSELL and WIDENER, Circuit Judges, and WILLIAMS, United States District Judge for the Eastern District of Virginia, sitting by designation.\n OPINION\n WIDENER, Circuit Judge:\n \n \n 1\n In these consolidated cases, Clayton J. Powell and Darlene W. Powell appeal from an order of the United States tax court dismissing their petition for lack of jurisdiction and from an order of the United States District Court for the District of Maryland denying their request for injunctive relief. While we remand to dismiss for mootness the case in the district court, we are of opinion that the tax court erred in dismissing the Powells' petition for lack of jurisdiction.\n \n \n 2\n The events leading to the present controversy are traced back to late 1987, when the Powells moved from 10519 Carnation Court, Adelphi, Maryland, to 12051 Hallandale Terrace, Mitchellville, Maryland. The Powells' income tax return for calendar year 1986 contained the Carnation Court address and the Hallandale Terrace address first appeared on their 1987 return. The Internal Revenue Service (IRS) received the Powells' 1987 tax return more than two months early, on February 11, 1988, and posted the enclosed payment to their account.\n \n \n 3\n Eighteen days later, on February 29, 1988, the IRS mailed a notice of deficiency with respect to the Powells' joint tax return for 1984. This notice was sent by certified mail to the Powells' former address at Carnation Court. According to the evidence of the Hyattsville, Maryland Postmaster, the Powells had submitted a change of address order to the Postal Service. Nevertheless, the deficiency notice was, according to the Postmaster, mishandled by the Postal Service, endorsed \"unclaimed,\" and returned to the IRS without being forwarded to the taxpayers. The IRS, in contrast, stated that there was nothing in the Powells' administrative file to indicate that the notice was returned to the IRS.\n \n \n 4\n We especially note that the February 29th notice from the IRS to the Powells was sent by certified mail, and while the Postal Service should have forwarded the notice to the Powells, there is nothing to indicate that the post office made two mistakes and did not return the notice to the IRS. In any event, since we presume, as we must, that public officers have properly discharged their official duties, e.g., United States v. Chemical Foundation, 272 U.S. 1, 14-15, 47 S.Ct. 1, 6, 71 L.Ed. 131 (1926), it is presumed, as the evidence from the Postmaster would indicate, that the notice was returned to the IRS, which then lost or misplaced it, for on argument in the tax court, the attorney for the Government stated that the notice was not in the Powells' administrative file where it should have been.\n \n \n 5\n On December 26, 1988, the IRS mailed a final notice of its intention to levy unless the Powells paid $6,863.60 within ten days. This notice was sent to the Powells' correct address at Hallandale Terrace and was promptly received. On January 11, 1989, the Powells filed a petition in the United States tax court seeking a redetermination of the alleged deficiency. In response, the Commissioner filed a motion to dismiss, arguing that because the Powells' petition had not been filed within ninety days of the mailing of the original deficiency notice, the tax court had no jurisdiction. After conducting an evidentiary hearing on the motion, the tax court granted the respondent's motion to dismiss for lack of jurisdiction on the ground that the Powells' petition was untimely filed. This appeal followed.\n \n \n 6\n Under 26 U.S.C. § 6212(b)(1), a notice of deficiency with respect to income tax is deemed \"sufficient\" if it is mailed to the taxpayer at his \"last known address.\" The taxpayer then has a period of ninety days from the mailing of this deficiency notice in which to file a petition with the tax court seeking a redetermination of the deficiency. 26 U.S.C. § 6213(a). The central issue raised on this appeal is whether the Commissioner's February 29, 1988 mailing was properly directed to the Powells' last known address and thereby triggered the ninety-day period for the filing of a petition in the tax court.\n \n \n 7\n The taxpayer's last known address has been defined as that which \"in light of all relevant circumstances, the IRS reasonably may consider to be the address of the taxpayer at the time the notice of deficiency is mailed.\" Mulder v. Commissioner, 855 F.2d 208, 211 (5th Cir.1988). This inquiry \"requires an examination of the totality of the circumstances and a balancing of many relevant factual elements, factors which indicate that the inquiry is 'essentially factual.' \" King v. Commissioner, 857 F.2d 676, 679 (9th Cir.1988). Thus, where a full evidentiary hearing is held, as in the present case, findings largely factual, on the last known address issue should be reviewed under a clearly erroneous standard. Ward v. Commissioner, 907 F.2d 517, 521 (5th Cir.1990); King, 857 F.2d at 679; McPartlin v. Commissioner, 653 F.2d 1185, 1189 (7th Cir.1981).\n \n \n 8\n For many years, the courts construed 26 U.S.C. § 6212(b)(1) as allowing the IRS to consider the address shown on the tax return for the year in question as the taxpayer's last known address. See, e.g., Luhring v. Glotzbach, 304 F.2d 556, 559 (4th Cir.1962). While this approach has been abandoned by many courts, it should be noted that even under the traditional approach, the IRS was not entitled to rely upon the address on the questioned return if \"clear and concise\" notice was given by the taxpayer of a change in address. Alta Sierra Vista, Inc. v. Commissioner, 62 T.C. 367, 374 (1974), aff'd, 538 F.2d 334 (9th Cir.1976). The taxpayer may give such clear and concise notice by filing a subsequent return bearing a new address. King, 857 F.2d at 679; Cyclone Drilling, Inc. v. Kelley, 769 F.2d 662, 664 (10th Cir.1985). In such a situation, the address on the taxpayer's most recent return is deemed to be his last known address. See United States v. Zolla, 724 F.2d 808, 810 (9th Cir.), cert. denied, 469 U.S. 830, 105 S.Ct. 116, 83 L.Ed.2d 59 (1984).\n \n \n 9\n The authorities further require that the Commissioner must use reasonable diligence to ascertain the last known address. Ward, 907 F.2d at 521; McPartlin, 653 F.2d at 1189; Mulder, 855 F.2d at 211; Alta Sierra Vista, Inc., 62 T.C. at 374. In the case before us, despite the fact that the taxpayers had proven by the Postmaster that the notice of deficiency was returned to the IRS, the IRS called not a witness to refute the evidence of the Postmaster but merely relied upon the statement of its attorney that the returned notice of deficiency could not be found in the Powells' administrative file. Almost the same thing happened to the IRS file in Mulder: \"Moreover, the IRS file does not contain either the original letter or the executed return receipt.\" 855 F.2d at 211.* The Mulder court held that the return of mailings to the IRS was \"a fact which weighs heavily in the due diligence equation.\" 855 F.2d at 211. And because there had been no return of the notice to the IRS in Mulder and the return receipt had been lost either by the post office or by the IRS, the court held that due diligence had not been used and there had been no sufficient notice of a deficiency served on the taxpayer.\n \n \n 10\n McPartlin was another case in which the IRS mailed a deficiency notice to a previous address, although it had actual notice by way of later communications that the taxpayers had moved. The notice was sent to the previous address by certified mail with return receipt requested. As in Mulder and this case, the key documents in the case were missing from the IRS file. \"Petitioners never received the notice mailed April 13, 1978, nor does the Commissioner's file on petitioners contain a return receipt for the notice.\" McPartlin, 653 F.2d at 1188. The court in McPartlin held the notice was insufficient for two reasons. First, a lack of due diligence on the part of the Commissioner, and, second, a notice of deficiency not received by the taxpayers due to an error of the Postal Service is insufficient. The court noted that the fact that the Commissioner's file contained no return receipt for the notice fostered a conclusion that fault for failure to receive it was either with the Postal Service or the Commissioner and not, in any event, with the taxpayers. The court held that if the Commissioner had failed to receive a return receipt, that \"should have apprised him that delivery to petitioners of the notice of deficiency was never attempted\" and also that \"if, on the other hand, the return receipt was sent to the Commissioner it should have informed him that petitioners no longer resided at ... [their previous address].\" The court held that \"[i]n such circumstances notice is also insufficient.\" 653 F.2d at 1191. The previous and alternate holding was that \"[w]hen evidence indicates that a notice of deficiency has not been received by the taxpayers due to error of the Postal Service the notice shall be found insufficient.\" 653 F.2d at 1191.\n \n \n 11\n In the case before us, the notice was admittedly not delivered to the taxpayers because of an error of the Postal Service. Consistent with McPartlin, we hold that that is sufficient proof on the part of the taxpayers and that the notice was insufficient. Also, consistent with McPartlin and Mulder, we are of opinion and hold that the IRS did not exercise reasonable diligence to ascertain the Powells' last known address. There is no reason to believe that the undelivered notice was not returned to the IRS as the Postmaster said it was. His statement to that effect is uncontradicted. That being true, when the IRS received the returned notice, that was proof that the same had not been delivered to the Powells. The IRS cannot rely on the fact that it lost or misplaced the notice for proof of its case against these taxpayers.\n \n \n 12\n In arriving at our conclusion, we have also considered that the record in this case does not disclose whether the notice was sent to the Powells by certified mail with return receipt or without return receipt. If it was sent with return receipt, the same rule applied by the Court in McPartlin would apply here, and the absence of it would show non-delivery. If it was sent without a request for return receipt, that would be evidence which would tend to show a lack of due diligence and would be additional evidence to support our conclusion.\n \n \n 13\n The Powells are entirely innocent. When they moved, they filed their change of address forms with the Postal Service and the ultimate non-delivery of the notice to them was either the fault of the Postal Service Department or the IRS, or both. The evidence would indicate it was the fault of both, and we so hold. In these circumstances, we hold the notice was insufficient, although the fault of either department in the circumstances present here would support our holding.\n \n \n 14\n The IRS argues against this conclusion by taking the position that the Carnation Court address to which it mailed the deficiency notice was the only address listed for the Powells on the IRS computer file, and, thus, although the IRS had actual notice of the Powells' change of address in its paper files by virtue of a later filed income tax return, it should not be held to this knowledge because the change of address would not yet show up on its computer. In effect, the IRS states that since the Powells' new address would not show up on its computer until June 6, 1988, some four months after it was received by the IRS, that it should not be held to the change of address on February 29, 1988. While there may be some justification for this argument, that computers are an accepted way of doing business, there would seem to be as many or more reasons for not accepting it. For example, the IRS is arguing that the computer is a less efficient way of keeping track of addresses than the old way of simply looking in a file. The IRS urges that we accept what it calls a decision in Ward that it should have a reasonable time to process change of address notifications. While the court in Ward did state that it did \"not disagree\" with that proposition, it did not hold that it applied in that case, for the holding in Ward was that the IRS did have an opportunity to process the change of address so the court did not have to decide the question. In any event, in Ward, the taxpayer had written to the IRS on November 6th, notifying him of his new address. That letter was received by the IRS on November 10th; and on November 18th, the IRS wrote a letter to the taxpayer, thanking him for filing his change of address. Nevertheless, on November 20th the IRS mailed a notice of deficiency to the taxpayer at his old address, which was held by the Ward court to be insufficient. We do not reach the question here of how much time, if any, the IRS should have to put a change of address on a computer. We do suggest, however, that the Ward court would have had to strain a lot to find a sufficient notice when the IRS had acknowledged the change of address in writing. Also, as McPartlin rather forcibly points out, if the IRS had simply kept the Powells' file in order and mailed the notice by certified mail, with return receipt requested, it would have had no trouble in finding the Powells' address.\n \n \n 15\n The tax court did not give any effect to the uncontradicted evidence of the Postmaster that the undelivered notice had been returned to the IRS. The tax court also did not consider the question of the due diligence required of the IRS. For these reasons, its decision that the deficiency notice mailed to the Powells on February 29, 1988 was sufficient within the meaning of section 6212(b)(1) is clearly erroneous. We are of opinion that it was not sufficient, and we so hold for the reasons stated above.\n \n \n 16\n We further find that the Powells' petition for redetermination was timely filed before the tax court. When notice of a deficiency is not sent to a taxpayer's last known address, subsequent actual notice of the deficiency will commence the running of the ninety-day period. McPartlin, 653 F.2d at 1192; Crum v. Commissioner, 635 F.2d 895, 901 (D.C.Cir.1980). In this case, the Powells received actual notice no earlier than December 1988 when they received the final notice of the IRS's intention to levy. Their petition was filed on January 11, 1989, well within the ninety-day period.\n \n \n 17\n The Powells also contend that the three-year statute of limitations found in 26 U.S.C. § 6501(a) bars future action against them concerning their 1984 tax return. The order of the tax court understandably did not reach this question because of its conclusion that it was without jurisdiction to consider the petition. We believe that a determination concerning the application of the statute of limitations to the facts of this case should be made in the first instance by the tax court, and we do not reach that question.\n \n \n 18\n We accordingly reverse the order of the tax court granting the Commissioner's motion to dismiss and remand the case to the tax court for additional proceedings consistent with this opinion.\n \n \n 19\n Finally, the Powells argue that the district court abused its discretion in refusing to grant their request for injunctive relief pursuant to 26 U.S.C. § 6213(a). The record reveals that the district court never considered on its merits the request for injunctive relief; rather, it declined to hear the same. While we might arguably consider such a refusal as a denial of injunctive relief, we think that is not necessary, for in this case, there has literally been neither a granting nor a denial of injunctive relief. In any event, because of the relief we have granted in the appeal from the judgment of the tax court, it is apparent that the suit in the district court requesting an injunction is moot. Accordingly, that case will be remanded for dismissal as moot.\n \n Case No. 89-1489 is\n \n 20\n REVERSED AND REMANDED WITH INSTRUCTIONS.\n \n \n 21\n Case No. 89-1494 is remanded to the district court for dismissal as moot.\n \n \n 22\n REMANDED WITH INSTRUCTIONS.\n \n \n \n *\n We note that if the IRS in the case at hand had acknowledged receiving the undelivered notice back from the Postal Service, it would have been proof positive that the same had not been delivered, and so the mailing would have necessarily been insufficient, absent further inquiry on the part of the IRS, which was never made\n \n \n ", "ocr": false, "opinion_id": 578682 } ]	Fourth Circuit	Court of Appeals for the Fourth Circuit	F	USA, Federal
466,935	null	1986-03-24	false	turner-v-maggio	Turner	Turner v. Maggio	null	null	null	null	null	null	null	null	null	null	null	null	0	Published	null	null	[ "786 F.2d 1161" ]	[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/786/786.F2d.1161.85-4559.html", "author_id": null, "opinion_text": "786 F.2d 1161\n Turnerv.Maggio\n 85-4559\n United States Court of Appeals,Fifth Circuit.\n 3/24/86\n \n 1\n W.D.La.\n \n AFFIRMED\n \n 2\n ---------------\n \n \n \n Fed.R.App.P. 34(a); 5th Cir.R. 34.2.\n \n \n ", "ocr": false, "opinion_id": 466935 } ]	Fifth Circuit	Court of Appeals for the Fifth Circuit	F	USA, Federal
2,711,444	null	2014-01-07	false	wayne-county-employees-retirement-sys-v-charter-co	null	Wayne County Employees Retirement Sys v. Charter County of Wayne	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/20140107_S147296_101_147296_2014-01-07_cj_or.pdf", "author_id": null, "opinion_text": "Order Michigan Supreme Court\n Lansing, Michigan\n\n January 7, 2014 Robert P. Young, Jr.,\n Chief Justice\n\n Michael F. Cavanagh\n Stephen J. Markman\n 147296(99)(100) Mary Beth Kelly\n Brian K. Zahra\n Bridget M. McCormack\n David F. Viviano,\n Justices\n WAYNE COUNTY EMPLOYEES\n RETIREMENT SYSTEM and WAYNE\n COUNTY RETIREMENT COMMISSION,\n Plaintiffs/Counter-\n Defendants-Appellees,\n SC: 147296\n v COA: 308096\n Wayne CC: 10-013013-AW\n CHARTER COUNTY OF WAYNE,\n Defendant/Counter-\n Plaintiff-Appellant,\n\n and\n\n WAYNE COUNTY BOARD OF\n COMMISSIONERS,\n Defendant-Appellant.\n _____________________________________/\n\n On order of the Chief Justice, the motions of plaintiffs/counter-defendants-\n appellees for immediate consideration and to extend the time to file their supplemental\n brief are GRANTED. The brief will be accepted as timely filed if filed on or before\n January 22, 2014.\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 7, 2014\n Clerk\n\f", "ocr": false, "opinion_id": 2711444 } ]	Michigan Supreme Court	Michigan Supreme Court	S	Michigan, MI
2,617,883	Drapeau	1949-09-21	false	barder-v-mcclung	Barder	Barder v. McClung	VERDA E. BARDER, Respondent, v. ELLERY G. McCLUNG Et Al., Defendants; RAYMOND E. PIERCE Et Al., Appellants	Henry C. Bohr for Appellants., Richard M. Thompson for Respondent.	null	null	null	null	null	null	null	null	null	null	20	Published	null	<docketnumber id="b712-4"> [Civ. No. 17135. </docketnumber><court id="AGV"> Second Dist., Div. One. </court><decisiondate id="A5v"> Sept. 21, 1949.] </decisiondate><br><parties id="b712-5"> VERDA E. BARDER, Respondent, v. ELLERY G. McCLUNG et al., Defendants; RAYMOND E. PIERCE et al., Appellants. </parties><br><attorneys id="b713-8"> <span citation-index="1" class="star-pagination" label="693"> *693 </span> Henry C. Bohr for Appellants. </attorneys><br><attorneys id="b713-9"> Richard M. Thompson for Respondent. </attorneys>	[ "93 Cal. App. 2d 692" ]	[ { "author_str": "Drapeau", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 6387, "opinion_text": "\n93 Cal. App. 2d 692 (1949)\nVERDA E. BARDER, Respondent,\nv.\nELLERY G. McCLUNG et al., Defendants; RAYMOND E. PIERCE et al., Appellants.\nCiv. No. 17135. \nCalifornia Court of Appeals. Second Dist., Div. One. \nSept. 21, 1949.\n Henry C. Rohr for Appellants.\n Richard M. Thompson for Respondent.\n DRAPEAU, J.\n The instant action for damages is based upon the alleged fraud of defendants in a sale to plaintiff of residence property in Los Angeles consisting of a five-room dwelling and a detached garage containing a dwelling unit of one room, kitchen and bath. When the buildings were originally constructed in 1941, separate building permits were issued upon application of defendants' contractor, the permit for the garage building carrying the notation: \"Double Garage--with living quarters--Den and Bath--No kitchen.\" Also \"Zone & yards O.K. Byron 6-20-41.\"\n In 1943, without obtaining a permit therefor, defendants extended the garage unit about 2 1/2 feet and added a kitchen. According to defendants' story the labor incident to this change was performed on a daily wage plus materials basis by a man sent to them by the original contractor, Ed Smith. Defendants were unable to remember this man's name or the amount of money they paid him for the work.\n In July of 1946, defendants sold the property to plaintiff for $13,150, and in August of 1947, plaintiff was notified by the city zoning administrator that the garage unit was being maintained in violation of the city zoning ordinances. Thereafter, on September 15, 1947, plaintiff was granted a variance on a temporary basis permitting the use and maintenance of a second detached dwelling unit on an R-2 zoned lot for a period of five years, upon the conditions (1) that all kitchen facilities be removed at the end of the period on September 30, 1952, and (2) that she file and record an agreement to that effect \"in the office of the County Recorder of Los Angeles County prior to the issuance of any building permits or electrical power permits, such agreement to run with the land 694 and be binding upon all future owners, heirs, or assigns in interest.\"\n In her complaint, plaintiff alleged that defendants knew both at the time of construction and at time of sale that the buildings did not conform to the zoning ordinances, and in order to induce her to purchase the property, defendants represented to her and her husband that it was improved with two dwelling units, and that they could occupy one of them as their own residence and lease the other unit for income purposes; that such representations were false and fraudulent and made with the intention that plaintiff and her husband should rely thereon, which they did to their damage in the sum of $4,650.\n The trial court gave judgment to plaintiff for $1,250 and found, among other things, that: In the year 1943, defendants substantially altered the garage building and fitted it with a kitchen \"in violation of then existing zoning regulations and building restrictions\" knowing that such altering and fitting were in violation of existing zoning regulations and building restrictions, both at the time the work was done and at the time of sale to plaintiff. That plaintiff was wholly unfamiliar with the violation, but relying upon fraudulent statements made to her by defendants was induced to purchase the property for $13,150, when it was not worth in excess of $11,900.\n Defendants appeal from the judgment on the ground that the evidence is insufficient to sustain it because of lack of proof of the applicable zoning ordinance, or that defendants had knowledge thereof. In this connection, defendants urge that \"Plaintiff's burden was first to prove what Defendants were charged with knowing, and then to prove that Defendants actually had such knowledge when they sold the property to Plaintiff.\"\n Plaintiff offered in evidence the comprehensive zoning plan of the city of Los Angeles, effective as of June 1, 1946, which provides that its terms \"in so far as they are substantially the same as existing ordinances relating to the same subject matter, shall be construed as restatements and continuations and not as new enactments\"; and that its purpose \"is to consolidate and coordinate all existing zoning regulations and provisions into one comprehensive zoning plan. ...\"\n [1] While the exact terms of the zoning regulation applicable to the instant property in 1943 were not presented in evidence, the comprehensive zoning plan and the ruling of the city zoning administrator, made after a hearing before him 695 on August 25, 1947, support an inference that the property was in an R-2 zone in 1943, and that the addition of a kitchen to the detached garage unit constituted a violation of a then existing zoning regulation.\n [2] The following evidence tends to prove that defendants, at the time they sold the property to the plaintiff, knew they were using and maintaining a building in violation of zoning regulations:\n The 1941 permit to construct a double garage, with living quarters, den and bath, \"No kitchen.\"\n The testimony of Mrs. Bertha Griffin that when defendant Hannah Mae Pierce was showing her the garage apartment in September of 1941, the witness asked: \"Why don't you make a kitchen out of this room? And she said that the FHA wouldn't let them, that they did not have a permit to have a kitchen there.\"\n The testimony of Mrs. Marjorie Barden, daughter-in-law of plaintiff, that she first met defendants on July 22, 1946; that about a year later while she was living in the garage unit, an electrical company refused to wire the place for an electric range; that she took up the matter with defendants, at which time Mrs. Pierce told her: \"You have no business getting an electric range anyway. You should use the gas that was already back there. ... Well, if you wouldn't have stirred all this up, they wouldn't have found it ... I mean, we wouldn't have had any trouble over it ... Nothing would have occurred if you wouldn't have insisted on having an electric stove. ... Well, why on earth don't you just use the gas stove.\"\n Mr. Pierce was called under section 2055, Code of Civil Procedure, and testified that when he erected the buildings in 1941 he was not told that he could not have a kitchen; that all they wanted was \"a little den off the back of the garage\"; that in 1943 he helped to dig the trench for gas pipes \"for the little apartment on the back of the garage,\" for the kitchen in the rear; that he had no permit, having left \"those matters\" to the contractor Ed Smith; that the work was done by Mr. Smith's friend, whose name the witness did not know, and who was paid $400 for his work; that the witness did not know from the permit issued in 1941 that he could not put a kitchen in the garage unit.\n Mr. Pierce testifying for the defense stated that before the property was sold to plaintiff, he was not aware of any purported 696 violation of any zoning plan; that when he added the kitchen in 1943, contractor Smith was \"supposed\" to handle the matter of a permit. On cross-examination, this witness testified that he understood he had to have permission to install a kitchen from the F. H. A. which held the loan on the property; that he never signed any papers of any kind for a permit of any type.\n Mrs. Pierce stated that in 1943, she talked to Mr. Smith regarding the alterations to the garage and that \"He told us that we would have to get permission from the FHA as we hadn't completed paying off our mortgage from them, so we were both working and he said he would see about it for us.\" When asked if she knew that the rear dwelling may have been completed in violation of the city of Los Angeles zoning ordinance, she replied: \"No, sir.\" She also testified that she paid the man who did the work each week in cash and took receipts therefor. However, she was unable to locate these receipts and was unable to remember the man's name.\n Mrs. Beatrice Smith testified that her husband, Ed Smith, died on June 6, 1945; that she assisted him in his business of contracting during his lifetime, and \"filled out all of the permits and went up to the City Hall and procured them\"; that after 1941, neither she nor her husband had constructed any further buildings for defendants, and that her husband had not sent any carpenter to defendants' residence to do any work in 1942 or 1943.\n The question of knowledge on the part of defendants was one of fact. The forgoing resume discloses sufficient evidence in support of the trial court's finding that defendants altered the garage building and fitted it with a kitchen, knowing that such alteration was in violation of then existing building restrictions and zoning regulations.\n While defendants assert that they never told plaintiff and plaintiff never asked them whether the rear house could be maintained as a separate apartment, they admit that they listed the property with a real estate agent as \"a five room stucco and two room apartment.\" Moreover, the property was open to inspection; plaintiff was invited to look at it, and in conversations with plaintiff, defendants referred to the unit in the rear of the garage as having \"an inner door bed in the living room and a kitchen and a bath.\"\n [3] Defendants argue that since plaintiff purchased the property in reliance upon her own examination of the premises, she was not misled by them. Apropos of this, the following 697 appears in Bagdasarian v. Gragnon, 31 Cal. 2d 744, 748 [192 P.2d 935]: \"An independent investigation or an examination of property does not preclude reliance on representations where the falsity of the statement is not apparent from an inspection, or the person making the representations has a superior knowledge, or the party relying thereon is not competent to judge the facts without expert assistance. (Hobart v. Hobart Estate Co., 26 Cal. 2d 412, 434-435 [159 P.2d 958]; Shearer v. Cooper, 21 Cal. 2d 695, 702, 704 [134 P.2d 764].)\"\n Again in Rothstein v. Janss Investment Corp., 45 Cal. App. 2d 64, 68 [113 P.2d 465], it is said: \"But personal inspection is no defense when and where the conditions are not visible and are known only to the seller, and 'where material facts are accessible to the vendor only and he knows them not to be within the reach of the diligent attention and observation of the vendee, the vendor is bound to disclose such facts to the vendee.' (Clauser v. Taylor, 44 Cal. App. 2d 453 [112 P.2d 661]) ...\"\n [4] Neither can it be said that plaintiff was bound by constructive notice of the zoning ordinance, because as stated in Seeger v. Odell, 18 Cal. 2d 409, 415 [115 P.2d 977, 136 A.L.R. 1291]: \"The purpose of the recording acts is to afford protection not to those who make fraudulent misrepresentations, but to bona fide purchasers for value.\"\n [5] In the circumstances presented, it was the duty of defendants to disclose to plaintiff that the rear apartment was maintained and used in violation of existing zoning ordinances. Instead, they remained silent, to their profit. Fraud may be either actual or constructive. The suppression of that which is true, by one having knowledge or belief of the fact, is actual fraud. (Civ. Code, 1572; Snyder v. Security First Nat. Bank, 31 Cal. App. 2d 660, 664 [88 P.2d 760].) \"Deceit may be negative as well as affirmative; it may consist in suppression of that which it is one's duty to declare, as well as in the declaration of that which is false.\" (12 Cal.Jur. 770.)\n The judgment is affirmed.\n White, P. J., and Doran, J., concurred.\n", "ocr": false, "opinion_id": 2617883 } ]	California Court of Appeal	California Court of Appeal	SA	California, CA
369,460	null	1979-08-10	false	henderson-v-jago	Jago	Henderson v. Jago	null	null	null	null	null	null	null	null	null	null	null	null	0	Published	null	null	[ "605 F.2d 556" ]	[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/605/605.F2d.556.79-3228.html", "author_id": null, "opinion_text": "605 F.2d 556\n Hendersonv.Jago\n No. 79-3228\n United States Court of Appeals, Sixth Circuit\n 8/10/79\n N.D.Ohio\n AFFIRMED\n ", "ocr": false, "opinion_id": 369460 } ]	Sixth Circuit	Court of Appeals for the Sixth Circuit	F	USA, Federal
1,390,725	Benham	1990-02-28	false	gillespie-v-gillespie	Gillespie	Gillespie v. Gillespie	Gillespie v. Gillespie	Gregory M. Perry, for appellant., Walter B. Harvey, for appellee.	null	null	null	null	null	null	null	null	null	null	15	Published	null	<docketnumber id="b886-4"> S90A0182. </docketnumber><parties id="AfPK"> GILLESPIE v. GILLESPIE. </parties><br><citation id="b886-5"> (388 SE2d 688) </citation><decisiondate id="A67"> Decided February 28, 1990. </decisiondate><attorneys id="AZ5E"> <em> Gregory M. Perry, </em> for appellant. </attorneys>	[ "388 S.E.2d 688", "259 Ga. 838" ]	[ { "author_str": "Benham", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 4067, "opinion_text": "\n259 Ga. 838 (1990)\n388 S.E.2d 688\nGILLESPIE\nv.\nGILLESPIE.\nS90A0182.\nSupreme Court of Georgia.\nDecided February 28, 1990.\nGregory M. Perry, for appellant.\n*839 Walter B. Harvey, for appellee.\nBENHAM, Justice.\nWe granted the application for discretionary appeal in this case to consider whether the trial court erred in awarding a one-half interest in certain real estate to the wife. The judgment entered by the trial court did not specify whether the award to appellee of an interest in the real estate was alimony or an equitable division of property. Appellant contends here, as he did at the hearing on his motion for new trial, that the award was erroneous if it was an award of alimony because the petition did not contain a prayer for alimony, and was erroneous if it was an equitable division of the property because the land in question was his separate property. At the hearing on the motion for new trial, appellant's counsel argued that appellant's testimony would show that the property was his; appellee's counsel stated that appellee had testified at the final hearing that she had paid appellant for a one-half interest in the property. The trial court noted that it could not remember the evidence, but that it would not have awarded alimony in this case and that it was aware that property which was separate property of one spouse could not be equitably divided.\n\"The burden is on the party alleging error to show it affirmatively by the record. [Cits.]\" Shepherd v. Shepherd, 225 Ga. 455 (3) (169 SE2d 314) (1969). It is clear from the foregoing statement of the case that the error appellant urges requires a consideration of the evidence. Unfortunately for appellant, there is no transcript of the final hearing.\nWithout a transcript of the evidence presented, we will in keeping with very old authority in this state presume in favor of public officers, in the absence of all proof to the contrary, that they discharged their duty in compliance with the law. Doe v. Peeples, 1 Ga. 1 (1846). [Cit.] [Mallory v. Mallory, 240 Ga. 63, 64 (239 SE2d 384) (1977).]\nWe presume, therefore, that the evidence supported a finding that the real estate at issue was marital property and that the trial court awarded appellee a one-half interest as an equitable division of property.\nJudgment affirmed. All the Justices concur.\n", "ocr": false, "opinion_id": 1390725 } ]	Supreme Court of Georgia	Supreme Court of Georgia	S	Georgia, GA
776,097	null	2002-01-09	false	ramon-gavilan-cuate-v-chuck-yetter-jail-administrator-washington-county	null	null	Ramon Gavilan-Cuate v. Chuck Yetter, Jail Administrator, Washington County Jail Curtis Aljets, District Director, Immigration and Naturalization Service	null	null	null	null	null	null	null	null	null	null	null	10	Published	null	null	[ "276 F.3d 418" ]	[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F3/276/276.F3d.418.00-2599.html", "author_id": null, "opinion_text": "276 F.3d 418 (8th Cir. 2002)\n RAMON GAVILAN-CUATE, APPELLEE,v.CHUCK YETTER, JAIL ADMINISTRATOR, WASHINGTON COUNTY JAIL; CURTIS ALJETS, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE, APPELLANTS.\n No. 00-2599 MN\n UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT\n Submitted: October 17, 2001January 9, 2002\n \n On Appeal from the United States District Court for the District of Minnesota.\n Paul D. Kovac, Washington, DC, for appellant.\n Patrick J. Page, argued, St. Paul, MN, for appellee.\n Before Bowman, Richard S. Arnold, and Hansen, Circuit Judges.\n \n Richard S. Arnold, Circuit Judge\n \n 1\n The United States appeals from an order of the District Court for the District of Minnesota granting Ramon Gavilan-Cuate's petition for a writ of habeas corpus to determine whether his conviction of conspiracy to transport and harbor illegal aliens is an \"aggravated felony\" as defined by the Immigration and Nationality Act. 8 U.S.C. §§ 1101(a)(43)(N), 1324 (a)(1)(A)(ii) and (iii). The government argues that this Court should reverse the District Court's decision to grant the petition because this issue was presented and decided by this Court when it dismissed Gavilan-Cuate's direct appeal in 1999. We agree with the government's argument and reverse the decision of the District Court.\n \n I.\n \n 2\n In April 1998, Gavilan-Cuate pleaded guilty to conspiracy to transport and harbor illegal aliens, in violation of 8 U.S.C. §§ 1324 (a)(1)(A)(ii) and (iii). Following his conviction, the Immigration and Naturalization Service served Gavilan-Cuate with a Notice to Appear before an immigration judge, stating that he was subject to removal from the United States as an alien convicted of an \"aggravated felony.\" See 8 U.S.C. §§ 1227(a)(2)(A)(iii) and 1101(a)(43)(N) (defining an aggravated felony as \"an offense described in paragraph (1)(A) or (2) of section 1324(a) of this title (relating to alien smuggling)\"). The immigration judge found Gavilan-Cuate \"removable as charged and ordered him removed to Mexico.\" Brief for Appellant 9. Gavilan-Cuate appealed to the Board of Immigration Appeals (BIA). Before the BIA, Gavilan-Cuate's sole argument was that his crime of conviction did not constitute an aggravated felony. The basis for his argument was that he was involved only in transporting and harboring aliens once they were within the United States, rather than actually smuggling aliens across the border. The BIA dismissed his appeal and determined that Gavilan-Cuate was convicted of an aggravated felony, making him subject to removal.1\n \n \n 3\n In November 1999, Gavilan-Cuate filed a petition with this Court asking us to review the Final Order of Removal issued by the BIA. The government responded by arguing that this Court should dismiss Gavilan-Cuate's appeal because we lacked jurisdiction to review final orders of removal against aliens convicted of aggravated felonies. However, the government conceded that this Court did have the jurisdiction to determine \"the preliminary jurisdictional fact of whether petitioner's crime for which he was convicted and upon which he was ordered removed constitute[d] an aggravated felony.\" Appendix for Appellant 305. See Hall v. INS, 167 F.3d 852, 855 (4th Cir. 1999) (stating that a court may determine \"whether the petitioner is an alien, and whether he has been convicted of one of the enumerated offenses\"). We determined that Gavilan-Cuate had been convicted of an aggravated felony and was removable. Therefore, we dismissed Gavilan-Cuate's appeal because we lacked jurisdiction to review final orders of removal against aliens convicted of certain criminal offenses, including aggravated felonies. See 8 U.S.C. § 1252(a)(2)(C).2\n \n \n 4\n The instant appeal arises from Gavilan-Cuate's petition for habeas corpus in the District Court to answer the same question raised in our Court, whether Gavilan- Cuate's conviction for conspiracy to transport and harbor illegal aliens was an aggravated felony. The District Court granted the petition and determined that Gavilan-Cuate's conviction was not an aggravated felony. Gavilan-Cuate v. Yetter, 94 F. Supp. 2d 1039 (D. Minn. 2000). The government appeals this ruling. Because we dismissed Gavilan-Cuate's direct appeal on the basis that he had committed an aggravated felony and was subject to removal, we reverse the District Court's decision.\n \n II.\n \n 5\n In this case, our prior decision is conclusive. Though a jurisdictional determination is not usually binding on future proceedings, it is binding as to issues that are addressed by the Court in determining the jurisdictional question. In 1999, Gavilan-Cuate appealed the finding that his crime of conviction was an aggravated felony as described in 8 U.S.C. § 1101(a)(43)(N) to this Court. Though the government argued that we lacked jurisdiction to hear Gavilan-Cuate's appeal, we did have jurisdiction to determine preliminary jurisdictional facts, such as whether Gavilan-Cuate's crime constituted an aggravated felony making him removable. We dismissed Gavilan-Cuate's appeal because we lacked jurisdiction to review final orders of removal against aliens convicted of aggravated felonies. Because our dismissal was premised on the fact that Gavilan-Cuate was convicted of an aggravated felony, that decision is binding on this proceeding.\n \n \n 6\n Accordingly, the District Court's decision is reversed, and the cause remanded with directions to dismiss the petition.\n \n \n \n NOTES:\n \n \n 1\n The BIA relied on Matter of Ruiz-Romero, Int. Dec. 3376 (BIA 1999) (finding that a conviction of transporting an illegal alien within the United States is an aggravated felony under 8 U.S.C. § 1101(a)(43)(N)). Appendix of Appellant 221.\n \n \n 2\n This statute states, \"[n]otwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section 1182(a)(2) or 1227(a)(2)(A)(iii), (B), (C), or (D) of this title, or any offense covered by section 1227(a)(2)(A)(ii) of this title....\" See 8 U.S.C. § 1252(a)(2)(C). Gavilan- Cuate v. INS, No. 99-4045 (8th Cir. January 24, 2000) (order dismissing appeal).\n \n \n ", "ocr": false, "opinion_id": 776097 } ]	Eighth Circuit	Court of Appeals for the Eighth Circuit	F	USA, Federal
96,811	Holmes	1908-03-09	false	united-states-v-thayer	Thayer	United States v. Thayer	United States v. Thayer	The Attorney General and Mr. Assistant Attorney General Cooley for plaintiff in error:, Mr. J: M. McCormick, with whom Mr. F. M. Etheridge was on the brief, for defendant in error:'	null	null	<p>A man may sometimes be punished in person where he has brought consequences to pass, although he was not there in person. In re Palliser, 136 U. S. 257.</p> <p>A solicitation of funds for campaign purposes made by letter in violation of § 12 of the Civil Service Act of January 16, 1883, c. 27, 22 Stat. 403, is not complete until the letter is delivered to the person from whom the contribution is solicited, and if the letter is received by one within a building or room described in § 12 of the act the solicitation is in that place and the sender of the letter commits the .prohibited offense in the prohibited place.</p>	null	ERROR TO THE DISTRICT COURT OP THE UNITED STATES FOR THE NORTHERN DISTRICT OF TEXAS. The facts are stated in the opinion. The act of mailing the letter soliciting a contribution for political purposes, was, under the circumstances of this case, one which Congress intended to prohibit, and the court -will place such reasonable construction on the statute of Congress as tends to give effect to that intention. United States v. Lacker, 134 U. S. 624, 628; Johnson v. United States, 196 U.S. 1. The act of mailing the letter is also within the letter of the statute. There is nothing in § 12 making the physical presence of the person soliciting within the Federal building an essential element of the offense. The act of soliciting was completed when the letter was received and read by the person to whom it was addressed and to whose mind the demand for money therein contained was addressed. Wharton, Conflict of Laws, §§825', 826; 'Hobart’s Rep. (1st Am. ed.) p. 152; Clutterbuck v. Chaffers, 1 Starkie, 471; The King v. Bnrdett, 4 B. & A. 95; The King v. Johnston, 7 East, 65, 68; In re Palliser, 136 U. S. 257, ahd cases cited; Horner v. United States, 143 U. S. 207, 214; Burton v. United States, 202 U. S. 344; People v. Rathbun, 21 Wend. 509, 529; Simpson v. State, 92 Georgia, 41, 43; People v. Adams, 3 Denio, 190, 207; State v. Grady, 34 Connecticut,' 118j 130. The general effect of these numerous decisions is that the offense is committed at the place where the unlawful act takes effect. If, as seems clear, Congress intended to prohibit the demand of political assessments in Federal buildings, it is a matter of no consequence whether the defendant in making his demands for contributions to the Republican campaign fund was actually in the building or not. He willfully and knowingly set in motion an agency which resulted in a demand on' a Government officer in a Government building, and on Well-settled principles it must be held that he committed the offense on. forbidden ground. The legislative history of the act of Congress in question . herein, shows that it was not the intention to prohibit the writing by a private citizen of a letter soliciting a political contribution, which is by him enveloped, stamped, addressed and deposited in the United States mail with an intent that the addressee shall read the same in a public building. Cong. Rec., vol. 14, 650, 866. The intent of Congress in enacting § 12 is the law. And before a violation thereof can arise, there must be acts contravening this intent, which are so clearly forbidden by it as to charge notice to the citizen that they are unlawful. The section under discussion creates a crime theretofore unknown to the law. Laws which create crime ought to be so explicit that all men subject to their penalties may know what acts it is thei^ duty to avoid. United States v. Sharp, Pet; C. C. 118; United States v. Brewer, 139 U. S. 288. See-also United States v. Wiltberger, 5 Wheat. 76; United States v. Morris, 14 Pet. 464; American Fur. Co. v. United States, 2 Pet. 358, 367; United States v. Winn, 3 Sumner, 209, 211. The words of § 12, taken in connection with the other sections bf the law and the statutes in pari materia are not so precise and clear as to compel the construction contended for by the Government which would lead to an absurd consequence. Commonwealth v. Kimball, 24 Pick. 371. If the physical, presence of the defendant, or his agent or servant in the building at the time the letters containing the solicitations respectively were read, was necessary, then the Government’s case falls for the reason that the postal em-ployés are in law deemed the agents of the addressee, and not of the sender of a letter. Commonwealth v. Wood, 142 Massachusetts, 462, and see also Regina v. Jones, 4 Cox C. C. 198.	null	<p>154 Fed. Rep. 508, reversed.</p>	Argued February 25, 1908.	null	null	25	Published	null	<parties id="b65-5"> UNITED STATES <em> v. </em> THAYER. </parties><br><summary id="b65-6"> ERROR TO THE DISTRICT COURT OP THE UNITED STATES FOR THE NORTHERN DISTRICT OF TEXAS. </summary><br><docketnumber id="b65-7"> No. 390. </docketnumber><otherdate id="AxB"> Argued February 25, 1908. </otherdate><decisiondate id="AJc"> Decided March 9, 1908. </decisiondate><br><syllabus id="b65-8"> A man may sometimes be punished in person where he has brought consequences to pass, although he was not there in person. <em> In re Palliser, </em> 136 U. S. 257. </syllabus><br><syllabus id="b65-9"> A solicitation of funds for campaign purposes made by letter in violation of § 12 of the Civil Service Act of January 16, 1883, c. 27, 22 Stat. 403, is not complete until the letter is delivered to the person from whom the contribution is solicited, and if the letter is received by one within a building or room described in § 12 of the act the solicitation is in that place and the sender of the letter commits the .prohibited offense in the prohibited place. </syllabus><br><history id="b65-10"> 154 Fed. Rep. 508, reversed. </history><br><summary id="b65-11"> The facts are stated in the opinion. </summary><br><attorneys id="b65-12"> <em> The Attorney General </em> and <em> Mr. Assistant Attorney General Cooley </em> for plaintiff in error: </attorneys><br><summary id="b65-13"> The act of mailing the letter soliciting a contribution for <span citation-index="1" class="star-pagination" label="40"> 40 </span> political purposes, was, under the circumstances of this case, one which Congress intended to prohibit, and the court -will place such reasonable construction on the statute of Congress as tends to give effect to that intention. <em> United States </em> v. <em> Lacker, </em> 134 U. S. 624, 628; <em> Johnson </em> v. <em> United States, </em> 196 U.S. 1. </summary><br><summary id="b66-4"> The act of mailing the letter is also within the letter of the statute. There is nothing in § 12 making the physical presence of the person soliciting within the Federal building an essential element of the offense. The act of soliciting was completed when the letter was received and read by the person to whom it was addressed and to whose mind the demand for money therein contained was addressed. Wharton, Conflict of Laws, §§825', 826; 'Hobart’s Rep. (1st Am. ed.) p. 152; <em> Clutterbuck </em> v. <em> Chaffers, </em> 1 Starkie, 471; <em> The King </em> v. <em> Bnrdett, </em> 4 B. & A. 95; <em> The King </em> v. <em> Johnston, 7 </em> East, 65, 68; <em> In re Palliser, </em> 136 U. S. 257, ahd cases cited; <em> Horner </em> v. <em> United States, </em> 143 U. S. 207, 214; <em> Burton </em> v. <em> United States, </em> 202 U. S. 344; <em> People </em> v. <em> Rathbun, </em> 21 Wend. 509, 529; <em> Simpson </em> v. <em> State, </em> 92 Georgia, 41, 43; <em> People </em> v. <em> Adams, </em> 3 Denio, 190, 207; <em> State </em> v. <em> Grady, </em> 34 Connecticut,' 118j 130. </summary><br><summary id="b66-5"> The general effect of these numerous decisions is that the offense is committed at the place where the unlawful act takes effect. If, as seems clear, Congress intended to prohibit the demand of political assessments in Federal buildings, it is a matter of no consequence whether the defendant in making his demands for contributions to the Republican campaign fund was actually in the building or not. He willfully and knowingly set in motion an agency which resulted in a demand on' a Government officer in a Government building, and on Well-settled principles it must be held that he committed the offense on. forbidden ground. </summary><br><attorneys id="b66-6"> <em> Mr. J: M. McCormick, </em> with whom <em> Mr. F. M. Etheridge </em> was on the brief, for defendant in error:' </attorneys><br><summary id="b66-7"> The legislative history of the act of Congress in question . <span citation-index="1" class="star-pagination" label="41"> 41 </span> herein, shows that it was not the intention to prohibit the writing by a private citizen of a letter soliciting a political contribution, which is by him enveloped, stamped, addressed and deposited in the United States mail with an intent that the addressee shall read the same in a public building. Cong. Rec., vol. 14, 650, 866. </summary><br><summary id="b67-5"> The intent of Congress in enacting § 12 is the law. And before a violation thereof can arise, there must be acts contravening this intent, which are so clearly forbidden by it as to charge notice to the citizen that they are unlawful. The section under discussion creates a crime theretofore unknown to the law. Laws which create crime ought to be so explicit that all men subject to their penalties may know what acts it is thei^ duty to avoid. <em> United States </em> v. <em> Sharp, </em> Pet; C. C. 118; <em> United States </em> v. <em> Brewer, </em> 139 U. S. 288. See-also <em> United States </em> v. <em> Wiltberger, </em> 5 Wheat. 76; <em> United States </em> v. <em> Morris, </em> 14 Pet. 464; <em> American Fur. Co. </em> v. <em> United States, </em> 2 Pet. 358, 367; <em> United States </em> v. <em> Winn, </em> 3 Sumner, 209, 211. </summary><br><summary id="b67-6"> The words of § 12, taken in connection with the other sections bf the law and the statutes <em> in pari materia </em> are not so precise and clear as to compel the construction contended for by the Government which would lead to an absurd consequence. <em> Commonwealth </em> v. <em> Kimball, </em> 24 Pick. 371. </summary><br><summary id="b67-7"> If the physical, presence of the defendant, or his agent or servant in the building at the time the letters containing the solicitations respectively were read, was necessary, then the Government’s case falls for the reason that the postal em-ployés are in law deemed the agents of the addressee, and not of the sender of a letter. <em> Commonwealth </em> v. <em> Wood, </em> 142 Massachusetts, 462, and see also <em> Regina </em> v. <em> Jones, </em> 4 Cox C. C. 198. </summary>	[ "209 U.S. 39", "28 S. Ct. 426", "52 L. Ed. 673", "1908 U.S. LEXIS 1741" ]	[ { "author_str": "Holmes", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 1501, "opinion_text": "\n209 U.S. 39 (1908)\nUNITED STATES\nv.\nTHAYER.\nNo. 390.\nSupreme Court of United States.\nArgued February 25, 1908.\nDecided March 9, 1908.\nERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF TEXAS.\nThe Attorney General and Mr. Assistant Attorney General Cooley for plaintiff in error.\nMr. J.M. McCormick, with whom Mr. F.M. Etheridge was on the brief, for defendant in error.\n41 MR. JUSTICE HOLMES delivered the opinion of the court.\nThis is an indictment for soliciting a contribution of money for political purposes from an employe of the United States in a post office building of the United States occupied by the 42 employe in the discharge of his duties. By the Civil Service Act of January 16, 1883, c. 27, § 12, 22 Stat. 403, 407, \"No person shall, in any room or building occupied in the discharge of official duties by any officer or employe of the United States mentioned in this act, or in any navy-yard, fort, or arsenal, solicit in any manner whatever, or receive any contribution of money or any other thing of any value for any political purpose whatever.\" By § 15 a penalty is imposed of fine, imprisonment, or both. The indictment is in eleven counts, and charges the sending of letters to employes, which were intended to be received and read by them in the building and were so received and read by them in fact. It is admitted that the defendant was not in the building. There was a demurrer, which was sustained by the District Court on the ground that the case was not within the act. 154 Fed. Rep. 508. The only question argued or intended to be raised is whether the defendant's physical presence in the building was necessary to create the offense.\nOf course it is possible to solicit by letter as well as in person. It is equally clear that the person who writes the letter and intentionally puts it in the way of delivery solicits, whether the delivery is accomplished by agents of the writer, by agents of the person addressed, or by independent middlemen, if it takes place in the intended way. It appears to us no more open to doubt that the statute prohibits solicitation by written as well as by spoken words. It forbids all persons to solicit \"in any manner whatever.\" The purpose is wider than that of a notice prohibiting book peddling in a building. It is not, even primarily, to save employes from interruption or annoyance in their business. It is to check a political abuse, which is not different in kind, whether practiced by letter or by word of mouth. The limits of the act, presumably, were due to what was considered the reasonable and possibly the constitutional freedom of citizens, whether officeholders or not, when in private life, and it may be conjectured that it was upon this ground that an amendment of broader scope was 43 rejected. If the writer of the letter in person had handed it to the man addressed, in the building without a word, and the latter had read it then and there, we suppose that no one would deny that the writer fell within the statute. We can see no distinction between personally delivering the letter and sending it by a servant of the writer. If the solicitation is in the building the statute does not require personal presence, so that the question is narrowed to whether the solicitation alleged took place in the building or outside.\nThe solicitation was made at some time, somewhere. The time determines the place. It was not complete when the letter was dropped into the post. If the letter had miscarried or had been burned, the defendant would not have accomplished a solicitation. The court below was misled by cases in which, upon an indictment for obtaining money by false pretenses, the crime was held to have been committed at the place where drafts were put into the post by the defrauded person. Commonwealth v. Wood, 142 Massachusetts, 459, 462; Regina v. Jones, 4 Cox C.C. 198. But these stand on the analogy of the acceptance by mail of an offer and throw no light. A relation already existed between the parties, and it is because of that relation that posting the letter made the transaction complete. See Brauer v. Shaw, 168 Massachusetts, 198, 200. Here a relation was to be established, just as there is at the first stage of a contract when an offer is to be made. Whether or not, as Mr. Langdell thinks, nothing less than bringing the offer to the actual consciousness of the person addressed would do, Contr. § 151, certainly putting a letter into a post office is neither an offer nor a solicitation. \"An offer is nothing until it is communicated to the party to whom it is made.\" Thomson v. James, 18 Ct. of Sess. Cas. (2d Series), 1, 10, 15. Therefore, we repeat, until after the letter had entered the building the offense was not complete, but, when it had been read, the case was not affected by the nature of the intended means by which it was put into the hands of the person addressed. Neither can the case be affected by speculations 44 as to what the position would have been if the receiver had put the letter in his pocket and had read it later at home. Offenses usually depend for their completion upon events that are not wholly within the offender's control and that may turn out in different ways.\nNo difficulty is raised by the coupling of solicitation and receipt in the statute. If receipt required personal presence, it still would be obvious that \"solicit in any manner whatever\" was a broader term. But the cases that have been relied upon to establish that the solicitation did not happen in the building, although inadequate for that, do sufficiently show that the money might be received there without the personal presence of the defendant. If, in answer to the defendant's letter, the parties addressed had posted money to him in the building where they were employed, the money undoubtedly would have been received there. To sum up, the defendant solicited money for campaign purposes, he did not solicit until his letter actually was received in the building, he did solicit when it was received and read there, and the solicitation was in the place where the letter was received. We observe that this is the opinion expressed by the Civil Service Commission in a note upon this section, and the principle of our decision is similar to that recognized in several cases in this court. In re Palliser, 136 U.S. 257, 266; Horner v. United States, 143 U.S. 207, 214; Burton v. United States, 202 U.S. 344, 387, et seq. We do not cite them more at length, as the only dispute possible is on the meaning of the particular words that Congress has used.\nWe may add that this case does not raise the questions presented by an act done in one jurisdiction and producing effects in another which threatens the actor with punishment if it can catch him. Decisions in that class of cases, however, illustrate the indisputable general proposition that a man sometimes may be punished where he has brought consequences to pass, although he was not there in person. They are cited in In re Palliser, supra. Here the defendant was *45 within and subject to the jurisdiction of the United States to the extent of its constitutional power, and the power is not in dispute. Ex parte Curtis, 106 U.S. 371; United States v. Newton, 9 Mackey (D.C.), 226.\nJudgment reversed.\n", "ocr": false, "opinion_id": 96811 } ]	Supreme Court	Supreme Court of the United States	F	USA, Federal
391,877	null	1981-08-03	false	united-states-of-america-v-glenn-h-johnson-william-t-gholson	null	null	United States of America v. Glenn H. Johnson, William T. Gholson, Intervenor-Appellant. United States of America v. Suniland Furniture Co., William T. Gholson, Intervenor-Appellant. United States of America v. Bank of the Southwest National Association, William T. Gholson, Intervenor-Appellant	null	null	null	null	null	null	null	null	null	null	null	3	Published	null	null	[ "652 F.2d 475" ]	[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/652/652.F2d.475.80-1824.80-1822.html", "author_id": null, "opinion_text": "652 F.2d 475\n 81-2 USTC P 9605\n UNITED STATES of America, et al., Plaintiffs-Appellees,v.Glenn H. JOHNSON, Defendant,William T. Gholson, Intervenor-Appellant.UNITED STATES of America, et al., Plaintiffs-Appellees,v.SUNILAND FURNITURE CO., et al., Defendants,William T. Gholson, Intervenor-Appellant.UNITED STATES of America, et al., Plaintiffs-Appellees,v.BANK OF the SOUTHWEST NATIONAL ASSOCIATION, et al., Defendants,William T. Gholson, Intervenor-Appellant.\n Nos. 80-1822 to 80-1824\n \n Summary Calendar.\n United States Court of Appeals,Fifth Circuit.\n Unit A\n Aug. 3, 1981.\n Woody & Rosen, Clyde W. Woody, Andrew G. Shebay, Houston, Tex., for Gholson in all cases.\n Robert Darden, Asst. U.S. Atty., Houston, Tex., M. Carr Ferguson, Asst. Atty. Gen., Michael L. Paup, Chief, Appellate Section, Tax Div., Dept. of Justice, Washington, D.C., for plaintiffs-appellees in all cases.\n Appeals from the United States District Court for the Southern District of Texas.\n Before AINSWORTH, GARZA and SAM D. JOHNSON, Circuit Judges.\n PER CURIAM:\n \n \n 1\n This appeal involves the enforcement of a number of I.R.S. summonses issued to the above named defendants pursuant to 26 U.S.C. § 7602. The summonses were issued to ascertain the correctness of intervenor-appellant William T. Gholson's tax returns for 1975, 1976 and 1977. After an evidentiary hearing, the district court found that the summonses had been validly issued and entered an order enforcing them.\n \n \n 2\n The appellant Gholson challenges the decision in three respects. First, the appellant contends that the unavailability of the I.R.S. agent who issued the summonses was improper. Second, the appellant contends that he was not granted sufficient discovery to enable him to prove that the I.R.S. had made a decision to refer the investigation to the Department of Justice. Third, the appellant contends that he was not allowed sufficient latitude during the hearing to determine whether the I.R.S. was acting in good faith in issuing the summonses. The government also raises a challenge of its own, contending that these appeals are moot and should be dismissed.\n \n \n 3\n Although the appellant requests this court to establish some sort of discovery guidelines for district courts to follow in enforcement hearings, prior case law controls our decision today. We have held that the method and scope of discovery allowed in summons enforcement proceedings are committed in large part to the discretion of the district court. United States v. Harris, 628 F.2d 875, 884 (5th Cir. 1980).\n \n \n 4\n 26 U.S.C. § 7602 grants the government wide ranging investigatory authority to examine any relevant materials and to summon persons to appear to testify concerning any relevant matter regarding the collection of taxes. The issuance of a § 7602 summons does not require probable cause, United States v. Harris, 628 F.2d at 879, but it does require the existence of good faith. United States v. Wyatt, 637 F.2d 293, 301 (5th Cir. 1981); United States v. First National Bank in Dallas, 635 F.2d 391, 396 (5th Cir. 1981). Good faith requires that the summons be issued for a purpose authorized by statute and prior to the I.R.S.'s recommendation to the Department of Justice for criminal prosecution. United States v. First National Bank of Atlanta, 628 F.2d 871, 874 (5th Cir. 1980). It has been held that a summons is not issued in good faith if the single purpose of the I.R.S. is to gather evidence for a criminal prosecution. Id.\n \n \n 5\n The appellant's first objection is that the nonattendance of the agent who issued the summonses prevented Gholson from discovering if there was such an improper purpose. We reject this argument for two reasons. First, although the issuing agent was unavailable at the time of the hearing, his superior and his replacement on the case were both present at the hearing. Second, even a finding of improper motive by the agent in issuing the summonses would not be dispositive of the merits of the case. United States v. Davis, 636 F.2d 1028, 1036 (5th Cir. 1981); United States v. Harris, 628 F.2d at 882. Prior to any recommendation of criminal prosecution, an issuing agent's individual motivation is insulated by layers of review within the I.R.S. itself. United States v. LaSalle National Bank, 437 U.S. 298, 315, 98 S.Ct. 2357, 2366, 57 L.Ed.2d 221, 235 (1978). We, thus, find no error in the appellant's first challenge.\n \n \n 6\n The appellant also contends in his second and third objections that he was not allowed sufficient discovery and inquiry both at the pre-hearing and hearing levels. As already mentioned, in order to show that the summonses were issued solely for a criminal purpose, it must be shown that the I.R.S. as an institution, and not merely an agent, had such an intention. United States v. LaSalle National Bank, 437 U.S. at 316, 98 S.Ct. at 2367, 57 L.Ed.2d at 235; United States v. First National Bank of Atlanta, 628 F.2d at 874; United States v. Harris, 628 F.2d at 882. This finding is one of fact to be determined by the district court and will be upheld if supported by substantial evidence and if it is not clearly erroneous. United States v. Davis, 636 F.2d at 1036; United States v. First National Bank of Atlanta, 628 F.2d at 874. This requirement to prove a sole criminal purpose on the part of the I.R.S. places an extremely heavy burden upon the taxpayer. United States v. Harris, 628 F.2d at 883. The courts have held that there is nothing improper if the I.R.S. conducts a civil and criminal investigation simultaneously. Donaldson v. United States, 400 U.S. 517, 535, 91 S.Ct. 534, 544, 27 L.Ed.2d 580, 592 (1971); United States v. First National Bank of Atlanta, 628 F.2d at 874. As long as the I.R.S. maintains an ongoing civil investigation and has not yet recommended criminal prosecution to the Department of Justice, the issuance of the summonses is not improper.\n \n \n 7\n Again, these are issues which are left to the discretion of the district judge. In the present case, the district court conducted a sufficient hearing and found that the summonses had been issued in good faith and enforced them accordingly. Finding ample support in the record for this finding and discerning no error in its actions, we affirm the decision of the district court.\n \n \n 8\n The government's suggestion of mootness is premature. A case involving an I.R.S. summons is rendered moot when all requested documents have been produced and all requested witnesses have testified. United States v. First State Bank of Clute, 626 F.2d 1227, 1227 (5th Cir. 1980); United States v. Hankins, 565 F.2d 1344, 1350 (5th Cir. 1978). In the present case, the I.R.S. has not sufficiently shown this court that it has received all the documents requested, and we are, therefore, unable to declare this appeal moot.\n \n \n 9\n AFFIRMED.\n \n ", "ocr": false, "opinion_id": 391877 } ]	Fifth Circuit	Court of Appeals for the Fifth Circuit	F	USA, Federal
580,319	null	1992-03-11	false	34-fed-r-evid-serv-1206-prodliabrep-cch-p-13088-gary-turpin	null	null	34 Fed. R. Evid. Serv. 1206, prod.liab.rep. (Cch) P 13,088 Gary Turpin, Betty Turpin, Individually and as Parent and Natural Guardian of Brandy Turpin, a Minor v. Merrell Dow Pharmaceuticals, Inc.	null	null	null	null	null	null	null	null	null	null	null	97	Published	null	null	[ "959 F.2d 1349" ]	[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/959/959.F2d.1349.90-5690.html", "author_id": null, "opinion_text": "959 F.2d 1349\n 34 Fed. R. Evid. Serv. 1206, Prod.Liab.Rep. (CCH) P 13,088Gary TURPIN, Plaintiff-Appellant,Betty Turpin, Individually and as Parent and NaturalGuardian of Brandy Turpin, a Minor, Plaintiff,v.MERRELL DOW PHARMACEUTICALS, INC., Defendant-Appellee.\n No. 90-5690.\n United States Court of Appeals,Sixth Circuit.\n Argued Feb. 14, 1992.Decided March 11, 1992.\n \n Peter Perlman (briefed), Lexington, Ky., and Barry J. Nace (argued and briefed), Paulson, Nace, Norwind & Sellinger, Washington, D.C., for plaintiff-appellant.\n Frank W. Woodside, III (argued and briefed), Stephen M. Rosenberger (briefed), Dinsmore & Shohl, Cincinnati, Ohio, for defendant-appellee.\n Before: MERRITT, Chief Judge; KENNEDY and JONES, Circuit Judges.\n MERRITT, Chief Judge.\n \n \n 1\n For a judicial system founded on the premise that justice and consistency are related ideas, the inconsistent results reached by courts and juries nationwide on the question of causation in Bendectin birth defect cases are of serious concern. In this Bendectin causation case, Judge Eugene Siler concluded that the evidence adduced on summary judgment was insufficient to allow a rational jury to find that Bendectin, a drug given to pregnant women to counteract the nausea of \"morning sickness,\" caused the minor plaintiff's birth defects. 736 F.Supp. 737.\n \n \n 2\n The general issue for review here is whether the trial judge erred by withdrawing the case from the jury and by granting summary judgment for the defendant pharmaceutical company. The more specific issues are, first, whether a court should judge for itself the validity of the reasoning process by which various competing qualified experts have reached their conclusions or should instead leave that question for the jury; and second, whether the evidence in this case, if so reviewed, is sufficient to withstand the defendant's motion for summary judgment.\n \n \n 3\n We agree with Judge Siler that, although judges should respect scientific opinion and recognize their own limited scientific knowledge, nevertheless courts have a duty to inspect the reasoning of qualified scientific experts to determine whether a case should go to the jury. Based on the record before us, we also agree with Judge Siler that whether Bendectin caused the minor plaintiff's birth defects is not known and is not capable of being proved to the requisite degree of legal probability based on the scientific evidence currently available. Taken in the light most favorable to the plaintiffs, the scientific evidence that provides the foundation for the expert opinion on causation in this case is not sufficient to allow a jury to find that it is more probable than not that Bendectin caused the minor plaintiff's injury. Therefore the case should not go to a jury.\n \n \n 4\n We will first summarize the Bendectin causation issue and the case law that has developed during the past twelve years. We will then analyze the evidence in greater detail and show why it does not meet the legal test of causation.\n \n I. Overview\n \n 5\n The nausea of morning sickness affects many pregnant women and, although the causes are not completely understood, in extreme cases may cause permanent injury to the sufferer's unborn child. Merrell Dow manufactured and marketed Bendectin as an anti-nauseant prescription for morning sickness from 1956 until 1983 when it took the drug off the market despite continued approval from the Food and Drug Administration. Estimates indicate that Bendectin was prescribed from 1957 until 1982 to over 30 million women worldwide and to more than 17.5 million women in the United States. These women commonly took Bendectin during the first trimester of pregnancy.\n \n \n 6\n Approximately seven weeks after becoming pregnant, Betty Turpin ingested Bendectin to combat morning sickness. The initial development of the fetus's fingers and toes occurs some four to eight weeks after conception. Seven months after Ms. Turpin first took the drug, her child, Brandy Turpin, the infant plaintiff in this case, was born with \"limb reduction defects\": severely deformed hands and feet, specifically fused joints and shortened or missing fingers and toes. Ms. Turpin took no other drugs during the course of her pregnancy, nor can her child's deformities be traced to any known genetic disorders.\n \n \n 7\n Causation here is a matter of trying to measure probabilities. It requires a complex series of inferences drawn from scientific experiment and observation and statistical comparisons. For example, the plaintiffs rely primarily on animal experiments from which an inference is drawn that since chemical compounds in Bendectin, if administered at certain levels, cause birth defects in animals, they may cause similar defects in humans. The plaintiffs draw a further inference that Bendectin caused the birth defects in this particular case. These inferences are necessary because physicians who treated Brandy Turpin and other similarly situated children cannot diagnose the cause of these anomalies.\n \n \n 8\n The defendant, too, reasons from the results of scientific studies to a particularized conclusion with respect to these plaintiffs. Merrell Dow relies primarily on statistical studies that purport to show that the incidence of certain birth defects is no higher with women who used Bendectin than with those who did not or, in the alternative, that where statistical associations indicating a possible causal relationship exist, they would not lead a reasonable expert to infer that Bendectin causes birth defects.\n \n \n 9\n The causation proof in Bendectin birth defect cases is offered by expert witnesses who speak in terms of population groups and statistical samples rather than specific individuals. The expert witnesses on each side are often the same, from case to case, and even when different the scientific conclusions and theories are based on the same or similar statistical studies and scientific experiments. The cases are variations on a theme, somewhat like an orchestra which travels to different music halls, substituting musicians from time to time but playing essentially the same repertoire.\n \n \n 10\n A brief survey of the reported Bendectin cases illustrates the inconsistency of courts that have dealt with the scientific problem of causation. We find only one reported case finally upholding a finding of causation. In Oxendine v. Merrell Dow Pharmaceuticals, Inc., 506 A.2d 1100 (D.C.App.1986), aff'd in part on appeal after remand, 563 A.2d 330 (D.C.App.1989), cert. denied, 493 U.S. 1074, 110 S.Ct. 1121, 107 L.Ed.2d 1028 (1990), the appellate court reversed the trial court's grant of a judgment n.o.v. and motion for new trial to the defendant and reinstated the jury's $750,000 verdict for the plaintiffs. On the other hand, in four other reported cases, juries returned verdicts for the defense which were allowed to stand. Wilson v. Merrell Dow Pharmaceuticals, 893 F.2d 1149 (10th Cir.1990) (affirming judgment for the defendant and noting also that the plaintiffs' motion for judgment n.o.v. was correctly denied by the district judge); Will v. Richardson-Merrell, Inc., 647 F.Supp. 544 (S.D.Ga.1986) (denying plaintiffs' motion for judgment n.o.v.); In re Richardson-Merrell, Inc. \"Bendectin\" Products Liability Litigation, 624 F.Supp. 1212 (S.D.Ohio 1985), aff'd, 857 F.2d 290 (6th Cir.1988) (denying plaintiffs' motion for judgment n.o.v. in an order addressing 818 of 844 consolidated multidistrict cases in the largest of all Bendectin cases); and Cosgrove v. Merrell Dow Pharmaceuticals, Inc., 117 Idaho 470, 788 P.2d 1293 (1990) (affirming jury's finding that Bendectin was not the proximate cause of child's injuries).\n \n \n 11\n Four federal circuits have held that plaintiffs failed as a matter of law to establish causation of birth defects. The Fifth Circuit, without ruling specifically on the admissibility of the plaintiffs' expert testimony, reversed a jury verdict for the plaintiffs and granted judgment n.o.v. to the defendant because adequate proof of causation was lacking. Brock v. Merrell Dow Pharmaceuticals, Inc., 874 F.2d 307, reh'g. denied, 884 F.2d 166 (5th Cir.1989), cert. denied, 494 U.S. 1046, 110 S.Ct. 1511, 108 L.Ed.2d 646 (1990), limited by Christopherson v. Allied-Signal Corp., 902 F.2d 362, 367 (5th Cir.1990), rev'd on reh'g on other grounds, 939 F.2d 1106 (5th Cir.1991) (en banc). Another circuit, the Ninth, affirmed a grant of summary judgment for the defendant after holding that the plaintiffs' reanalyses of Merrell Dow's epidemiological studies were unreliable for lack of peer review. Daubert v. Merrell Dow Pharmaceuticals, Inc., 951 F.2d 1128 (9th Cir.1991). Two other circuits reached the same result by ruling inadmissible the plaintiffs' expert testimony on grounds that it was not the type \"reasonably relied upon\" by qualified experts in the specific fields of study. Richardson v. Richardson-Merrell, Inc., 857 F.2d 823 (D.C.Cir.1988), cert. denied, 493 U.S. 882, 110 S.Ct. 218, 107 L.Ed.2d 171 (1989) (reversing jury verdict for the plaintiff; in the face of the defendant's epidemiological evidence, an insufficient foundation existed for the plaintiffs' animal and chemical studies); Lynch v. Merrell-Nat'l Labs., 830 F.2d 1190 (1st Cir.1987) (holding that the plaintiff's in vivo and in vitro studies were inadmissible; therefore, insufficient evidence existed to avoid summary judgment for the defendant); see also Ealy v. Richardson-Merrell, Inc., 897 F.2d 1159 (D.C.Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 370, 112 L.Ed.2d 332 (1990) (reversing jury verdict for the plaintiff for $20 million in compensatory damages and punitive damages of $75 million, and granting judgment n.o.v. to the defendant after concluding that the plaintiff's evidence was inadmissible under Richardson ), and Ambrosini v. Richardson-Merrell, Inc., No. 86-278 (D.D.C. June 30, 1989) (relying on Richardson in granting judgment for the defendants).\n \n \n 12\n Four District Court cases nationwide have granted summary judgment to the defendant for various reasons. Lee v. Richardson-Merrell, Inc., 772 F.Supp. 1027 (W.D.Tenn.1991) (relying on Richardson, Brock, and Judge Siler's opinion in this case); Cadarian v. Merrell Dow Pharmaceuticals, Inc., 745 F.Supp. 409 (E.D.Mich.1989) (holding that an inadequate foundation existed for expert's opinion); Hull v. Merrell Dow Pharmaceuticals, Inc., 700 F.Supp. 28 (S.D.Fla.1988) (finding that the body of scientific literature established Bendectin's safety and that the infant plaintiff's mother took the drug too late in her pregnancy to affect the fetus); and Monahan v. Merrell-Nat'l Labs., No. 83-3108-WD, 1987 WL 90269 (D.Mass. Dec. 18, 1987) (finding that summary judgment for the defendant was required under the First Circuit's earlier holding in Lynch ).\n \n \n 13\n In contrast, other courts have either denied or reversed on appeal grants of summary judgment for the defendant in eight cases. In DeLuca v. Merrell Dow Pharmaceuticals, Inc., 911 F.2d 941 (3rd Cir.1990), the Third Circuit reversed the trial court's grant of summary judgment to Merrell Dow and remanded for the District Court to analyze the reasonableness of an expert witness's epidemiological opinion of causation under Federal Rule of Evidence 702. See also Longmore v. Merrell-Dow Pharmaceuticals, Inc., 737 F.Supp. 1117 (D.Idaho 1990) (expressly declining to adopt Richardson, Lynch, and Brock approaches); In re Bendectin Products Liability Litigation, 732 F.Supp. 744 (E.D.Mich.1990) (holding that collateral estoppel did not bar the plaintiffs on the issue of causation and that, in the face of experts' disagreements on necessity of epidemiological proof, the court could not reject other types of evidence); and DePyper v. Navarro, No. 116390 (Mich.Ct.App. May 9, 1991) (holding that the trial court erred under state law by not inquiring whether experts in field generally accepted the methodology of the plaintiffs' expert). For other denials of summary judgment or denials of the defendant's motions for directed verdict, see Hagen v. Richardson-Merrell, Inc., 697 F.Supp. 334 (N.D.Ill.1988) (denying summary judgment on causation but granting summary judgment on punitive damages); Mangels v. Richardson-Merrell, Inc., No. R-83-3272 (D.Md. Aug. 17, 1987) (summary judgment denied because a triable issue of fact existed for jury resolution); and Lanzilotti v. Merrell Dow Pharmaceuticals, Inc., No. 82-0183, 1986 WL 7832 (E.D.Pa. July 10, 1086) (denying the defendant's motion for a directed verdict).\n \n \n 14\n The fundamental reasons for the inconsistency of the legal system in handling Bendectin claims appear to be first, the difficulty of scientists and hence of judges, lawyers and jurors in knowing what reasonable inferences of causation to draw from animal experiments and epidemiological studies; and second, the uncertainty of judges about how far they should enter the scientific thicket of conflicting inferences in order to determine whether the basis of a scientific opinion concerning causation is sufficiently plausible to allow a jury to ground a verdict on it. There are two important questions here: How hard should judges look at the reasonableness of scientific theories and inferences before they decide whether there is enough to the case for it to go to the jury? If we apply a \"hard look\" doctrine, as we are inclined to do in scientific cases based primarily on expert testimony, what exactly are the general scientific experiments and studies capable of showing about whether Bendectin causes birth defects in a particular case?\n \n \n 15\n We believe that close judicial analysis of such technical and specialized matter is necessary not only because of the likelihood of juror misunderstanding, but also because expert witnesses are not necessarily always unbiased scientists. They are paid by one side for their testimony. Although there is no suggestion of unethical scientific conduct in the present case, the potential for exaggeration and fraud on the court is present and may be impossible to discover without close inspection and careful consideration of the record. As Judge Leventhal observed in the context of administrative law, in some circumstances there exists a \"combination of danger signals\" requiring enhanced \"judicial vigilance to enforce the Rule of Law.\" Greater Boston Television Corp. v. F.C.C., 444 F.2d 841, 851-52 (D.C.Cir.1970). In such situations, \"a court does not depart from its proper function when it undertakes a study of the record, hopefully perceptive, even as to evidence on technical and specialized matters....\" Id. at 850. We find that this case presents a scenario justifying the type of judicial review recommended by Judge Leventhal.\n \n II.\n \n 16\n In this legal context, we review the evidence and arguments offered by the parties on summary judgment. In determining and applying the correct standards of proof on summary judgment in scientific cases, we look to the rules of sufficiency of the evidence to decide whether juries should be allowed to hear the evidence as well as the rules of admissibility of expert testimony that shape the facts and opinions to be considered. This case, we believe, should be decided on the rules of the sufficiency of evidence of causation on summary judgment, as Judge Siler held below in the alternative.\n \n \n 17\n In the instant case, the plaintiffs claim that their infant daughter's birth defects were caused by the mother's use of Bendectin during her pregnancy and specifically by one ingredient, doxylamine succinate. The plaintiffs' case relies on animal studies and attacks the defendant's epidemiological studies. The defendant's case relies on the epidemiological studies and attacks the animal studies.\n \n \n 18\n The plaintiffs offered expert opinions from ten witnesses in eight scientific fields to assess whether Bendectin is \"teratogenic,\" i.e., capable of causing birth defects. These opinions were based on in vitro and in vivo animal studies, and reassessment of the defendant's epidemiological studies derived from study of humans. In support of its motion for summary judgment, the defendant relies primarily on 35 human epidemiological studies supporting a finding that the use of Bendectin does not cause birth defects. Some of these studies were conducted by scientists under contract with the defendant. Others were independent.\n \n \n 19\n A. Defendant's Proof--Epidemiological Studies\n \n \n 20\n Both sides appear to accept the fact that limb defects generally appear in less than one in 1,000 live births. The defendant's proof consists in large measure of the 35 extant studies published in medical and scientific journals on the statistical relationship between the use of Bendectin and the incidence of various forms of birth defects in babies, none of which conclude that a causal connection exists. For an extended explanation of the complex statistical methodology used in such epidemiology studies, including the use of such terms of art as the \"null hypothesis,\" \"significance testing,\" \"P value,\" \"relative risk\" and \"confidence interval,\" see Part 1.B of the Third Circuit's recent Bendectin opinion, DeLuca v. Merrell Dow Pharmaceuticals, Inc., 911 F.2d 941, 945-49 (3rd Cir.1990).1\n \n \n 21\n The following examples illustrate the nature and findings of these 35 studies, with six studies representative of the group:\n \n \n 22\n 1. The San Francisco Study: Two University of California researchers studied effects of six anti-nauseant drugs on 11,481 pregnancies in the San Francisco area over seven years. Bendectin was prescribed in only 628 of these cases. Birth defects were monitored at three ages: one month, one year, and five years (though limb defects in particular were not isolated and reported). The average rate of all types of birth defects for Bendectin cases at the age of one month was 0.8 in every 100 births. This average rate is less than the average rate of the birth defects found in mothers who did not use Bendectin. The comparative rates at the one and five-year periods were similar. Although no specific relative risk was assigned to Bendectin use, the authors concluded that Bendectin, when taken at a recommended dosage level, was not teratogenic. Lucille Milkovich & Bea Van den Berg, An Evaluation of the Teratogenicity of Certain Antinauseant Drugs, 125 Am. J. Obstetrics & Gynecology 244, 245-48 (1976).\n \n \n 23\n 2. The Boston and Harvard Study: Six doctors from Boston University and the Harvard School of Public Health evaluated a group study of 50,282 mothers and children for Bendectin's possible effect on birth defects. Of these mothers, 1,169 took Bendectin during their first four months of pregnancy, with 79 births resulting in various birth defects. Limb defects were not specifically reported. The 49,113 mothers who were not exposed to Bendectin gave birth to 3,169 infants who had various birth defects. Overall, 4.7 percent of those mothers exposed to Bendectin gave birth to deformed infants, while 4.5 percent of non-exposed mothers did. Thus, the relative risk of birth defects for Bendectin use was 1.07 at a 95 percent confidence level. The confidence interval was not listed. Taking this into account, the authors concluded that no \"statistically significant\" association existed, providing no evidence that Bendectin's components--including doxyalamine succinate--were harmful to the fetus. Samuel Shapiro et al., Antenatal Exposure to Doxyalamine Succinate and Dicyclomine Hydrochloride (Bendectin) in Relation to Congenital Malformations, Perinatal Mortality Rate, Birth Weight, and Intelligence Quotient Score, 128 Am. J. Obstetrics & Gynecology 480, 481-84 (1977).\n \n \n 24\n 3. The Atlanta Study: Over 280,000 births were monitored in the Atlanta area over a ten-year period for maternal exposure to various drugs including Bendectin. This population base was twenty times larger than that in the San Francisco study. Of 1,231 birth defects cases, 117, or 9.5 percent, of the mothers took Bendectin. Of 129 children born with limb defects, 14 (10.9 percent) had mothers who took Bendectin. The study calculated a relative risk of 1.18 at a 95 percent confidence interval between 0.65 and 2.13. However, for one subgroup of limb defects known as the \"amniotic band complex,\" a higher relative risk--3.88--was reported. Therefore, the risk of a Bendectin-exposed mother giving birth to a child with this specific condition was almost four times greater than that which would occur in a population of non-exposed mothers. Two other forms of birth defects (herniated-brain and esophageal defects) had relative risks of 1.84 and 2.47, with 95 percent confidence levels between 0.63 and 5.37 and between 0.84 and 4.89, respectively.\n \n \n 25\n For most birth defects, including limb defects, the authors determined that no \"statistically significant\" associations could be traced. As for the three above-mentioned possible associations, the authors noted possible confounding factors that might weaken the power of such associations, so that \"the data [did] not suggest that Bendectin is causally associated\" with birth defects. Jose Cordero et al., Is Bendectin a Teratogen?, 245 JAMA 2307 (1981).\n \n \n 26\n 4. Pyloric Valve Defects: The highest associations found between Bendectin use and birth defects were focused not on limb defects but on pyloric stenosis (abnormal constriction of the stomach's pyloric valve). In one Yale School of Medicine study, a relative risk of 1.40 was detected between mothers using Bendectin (1,427 cases) and non-users (3,001) for birth deformities. When the survey exclusively focused on infants with pyloric valve defects, six mothers taking Bendectin gave birth to children with this defect, as opposed to 29 mothers who did not use the drug. At a 95 percent confidence interval between 1.75 and 10.75, the relative risk of this stomach valve defect was 4.33. \"Thus, more than one in 10 cases of pyloric stenosis may be due to maternal use of Bendectin,\" although no direct causal relationship could be ascertained. Brenda Eskenazi & Michael Bracken, Bendectin (Debendox) As a Risk Factor for Pyloric Stenosis, 144 Am.J. Obstetrics & Gynecology 919, 921-24 (1982). The same study noted that one child with a limb reduction defect was born to a mother taking Bendectin, while five defects occurred in children of women not taking the drug. Although a relative risk of 4.19 resulted for limb defects, this was regarded as \"nonsignificant\" by Eskenazi and Bracken, id. at 923, possibly due to the smallness of the group studied and the wide range of the confidence interval.\n \n \n 27\n A later study conducted by Boston University Medical Center of 13,346 births around Puget Sound tended to support Eskenazi's and Bracken's findings. In 3,385 cases involving Bendectin use, 13 babies were born with pyloric valve defects, while 13 women out of 9,511 not exposed to the drug gave birth to affected children. These findings yielded a 2.5 relative risk ratio at a 95 percent confidence interval between 1.2 and 5.2. Despite this positive association, however, the Boston University researchers noted \"the absence of any apparent biologic basis\" to support the connection between Bendectin use and development of purely internal deformities like pyloric stenosis. The researchers also acknowledged that severity of the mothers' nausea could have confounded the results. Pamela Aselton et al., Pyloric Stenosis and Maternal Bendectin Exposure, 120 Am.J.Epidemiology 251, 252-56 (1984). An earlier study by two members of the same group focused on limb disorders in the same geographic region. Of 5,255 women studied, two infants out of 1,364 born to women who used the drug had limb defects, while four infants in the 3,841 Bendectin-free mothers had defects. The study yielded a relative risk of 1.4 and a 95 percent confidence interval between 0.26 and 7.71. A related study disclosed that of 2,255 infants born to Bendectin users, two children were born with malformed limbs, compared with six similar limb defects in babies born to 4,582 non-users. From this, a relative risk of 0.9 at a 95 percent confidence level between 0.29 and 2.98 was derived. The researchers concluded this was \"evidence against a strong association.\" Pamela Aselton & Herschel Jick, Additional Follow-Up of Congenital Limb Disorders in Relation to Bendectin Use, 250 JAMA 33 (1983).\n \n \n 28\n 5. The Sydney Study: University of Sydney researchers compared pregnancy histories for mothers of 155 children born with limb reduction defects with those for the mothers of 274 control group children; 26 percent of the 429 mothers in both groups used Bendectin during the first trimester of pregnancy. The relative risk resulting was 1.1, with a 95 percent confidence interval between 0.8 and 1.5. The Australian researchers concluded that \"[o]n these figures, there is no evidence that women who take [Bendectin] ... are more likely to bear a limb-deficient child than women who do not take this drug.\" Janet McCredie et al., The Innocent Bystander, 140 Med.J.Austl. 525, 526-27 (1984).\n \n \n 29\n 6. The National Institute of Health Study: In the most recent Bendectin study, two National Institute of Health researchers evaluated 31,564 births in Northern California. Of those women 2,771 (nine percent) had used Bendectin. For 58 categories of defects studied--limb defects, however, were not specifically monitored--135 defects occurred in cases of Bendectin exposure, while 1,439 defects occurred in non-exposed cases. Relative risks were greatest in three categories: lung defects (4.6), microcephaly, i.e., small head size (3.1), and cataracts (3.7). The 95 percent confidence intervals varied widely for these three categories, ranging between 1.9 to 10.9 for lung defects, 1.8 to 15.6 for microcephaly, and 1.2 to 24.3 for cataracts.\n \n \n 30\n Despite these findings, the authors surmised that the three statistically significant defect groups were possibly spurious, as they were \"exactly the number ... that would have been expected by chance.\" How this determination was made, however, is not specified by the authors. The authors concluded that no increase in overall rates of defects existed after Bendectin use and that the three associations \"are unlikely to be causal.\" Patricia Shiono & Mark Klebanoff, Bendectin and Human Congenital Malformations, 40 Teratology 151, 152-55 (1989).\n \n \n 31\n In addition to the 35 epidemiological studies, the defendant also offers as evidence the fact that no one has detected a decrease in the incidence of birth defects after Bendectin was removed from the market in 1983. Dr. Lamm so testified for the defendant based on a number of studies.\n \n \n 32\n B. Plaintiffs' Challenge to the Epidemiological Proof\n \n \n 33\n The plaintiffs claim that the defendant's 35 studies are based on samples which are too small to prove the absence of causation in light of the infrequency of instances of birth defects in general; that they do not adequately isolate limb reduction defects from other birth defects; that they do not control for many confounding factors such as smoking and the use of other drugs; that they impose a much higher level of scientific certainty of association (95 percent) than required by the preponderance of the evidence standard of proof (i.e., 51 percent);2 and that some of the studies can be read to show some statistically significant association if a much lower level of certainty is used. In essence the plaintiffs argue that the 35 statistical studies do not prove or disprove anything concerning the relationship between Bendectin and limb reduction defects.\n \n \n 34\n At least two expert witnesses for the plaintiffs attack the persuasive force of the defendant's statistical comparisons of the incidence of Bendectin-related birth defects. Dr. Glasser criticized the defendant's use of studies by Aselton, Jick, Cordero and Eskenazi as not correctly considering other birth defects, such as heart and pyloric valve defects or cleft palates, in assessing Bendectin's capacity for limb birth defects. In his affidavit, Dr. Glasser also criticized the Cordero, Eskenazi and McCredie studies for incorrectly inferring that no association existed between Bendectin use and infant limb reduction. Dr. Swan, similarly, rejected these studies' sole reliance on a relative risk of 1.0 within a 95 percent confidence interval as a basis for concluding that Bendectin does not cause birth defects in humans. Dr. Swan further claimed that several of the studies were conducted using insufficient populations or control groups, so that scientists wrongly calculated exposures to the drug. Dr. Swan viewed these and other factors as confounding the validity and power of such reports; however, both Drs. Glasser and Swan relied on these studies as the basis for their own recalculations, using a lower confidence interval that is claimed to derive a higher relative risk. Both experts concluded from their own reassessments that to a reasonable degree of epidemiological certainty, there is some association between Bendectin and limb reduction defects.\n \n \n 35\n Although we agree with the defendant that its epidemiological studies and Dr. Lamm's testimony constitute evidence on which a jury might ground a defendant's verdict, we agree with the plaintiffs' experts that this evidence is by no means conclusive. The defendant's claim overstates the persuasive power of these statistical studies. An analysis of this evidence demonstrates that it is possible that Bendectin causes birth defects even though these studies do not detect a significant association.\n \n \n 36\n Limb reduction defects occur in such a small percentage of both Bendectin and non-Bendectin live births--as noted, these occur in less than one in every 1,000--that it would take a carefully controlled comparison of a very large number of births to instill confidence in the predictive power of the outcome. Also, many of the defendant's studies apparently do not control for many factors that may be crucial for scientists to accord great weight to the studies, such as the stage of pregnancy during which the mother took Bendectin, the other drugs the mother may have taken, or other harmful conditions, natural or otherwise, that may have been part of the mother's environment.\n \n \n 37\n The Bendectin epidemiological studies are examples of a large number of studies of birth defects that demonstrate significant scientific uncertainty concerning their causes. A recent epidemiological study observes that \"the etiology of congenital anomalies is poorly understood, with a estimated 60 [percent] of all human birth defects having no known cause.\" Patricia Olshan et al., Paternal Occupation and Congenital Anomalies in Offspring, 20 Am.J. of Indus.Med. 447 (1991) (exploratory study finding a correlation between birth defects and the occupation of the father, but reasons for result yet unknown). The science of epidemiology is currently unable to identify the causes of many birth defects or to exclude from consideration many possible causes, including Bendectin and a host of other outside agents and environmental factors.\n \n C. Plaintiff's Proof--Animal Studies\n \n 38\n The cartilage cells that later become the bones of fingers and toes begin to form in the human embryo during the fourth through eighth weeks of pregnancy. The plaintiffs' theory is that chemical compounds in Bendectin interfere with the formation of these cartilage cells, or chondrogenesis, and that this causal relationship is shown by animal experiments. The plaintiffs' proof includes experiments with animal cells and embryos, known as in vitro studies, performed by developmental biologists to observe possible toxic effects on animal tissue when tested in petri dishes. Other animal experiments, in vivo studies, consisted of tests performed on animals such as rabbits, chickens, monkeys, rats and dogs to determine if Bendectin's ingredients created birth defects at various dosage levels. In these experiments, doxyalamine succinate, an ingredient of Bendectin, was injected into animal cells that produce or grow into cartilage that becomes the bones in which limb defects may occur. The plaintiffs' scientific hypothesis based on these studies is this: Because doxyalamine succinate interferes with cartilage cell formation in animal cells and test animals, Bendectin is \"capable\" of causing similar limb defects in humans. The following examples illustrate the nature and findings of these animal cell studies:\n \n \n 39\n 1. In vitro studies: As a developmental biologist, Dr. Newman stated that he performs experiments on embryonic cells in petri dishes to determine how those cells develop and create tissue. Due to their similarities to the human embryo, chicken and mice or rat embryos are most frequently used in these studies. Limb-forming cells are removed from the embryo--for chickens, wing and leg formation cells are used--and are isolated in a dish, where selected cells are treated with a suspected teratogen. Changes in cell differentiation between the control group of untreated cells and the exposed group are observed and recorded.\n \n \n 40\n Dr. Newman pointed to experiments on rat cells with substances similar to doxyalamine succinate. In these in vitro tests, various defects including limb reduction were observed. Other in vitro tests performed by National Institute of Health experts and relied upon by Dr. Newman found that doxyalamine succinate interfered with cartilage development in mice and chicken limb cells. In one experiment, the addition of 10 micrograms of Bendectin to an animal cell culture reduced one of the components of cartilage cells, proteoglycan, by 30 percent. Similarly, 50 micrograms of Bendectin per milliliter of a culture reduced proteoglycan production by 50 percent, thus suggesting a strong teratogenic effect in the animal cells tested.\n \n \n 41\n Like the other scientists who testify concerning animal experiments, Dr. Newman can only testify that these chemical compounds connected with Bendectin are \"capable of causing\" limb defects in humans, not that they do cause such defects.3\n \n \n 42\n 2. In vivo studies: Dr. Gross, a pathologist and veterinary medical expert with the Environmental Protection Agency, described the nature of the in vivo studies proffered by the plaintiffs. In these experiments, suspected teratogens are administered to pregnant female animals. Shortly before their birth, the infants are removed from the mother and studied for defects. Dr. Gross examined a variety of these studies, including Bendectin experiments performed by the defendant on rats and rabbits. In one such study, doxyalamine succinate was given daily to female rabbits at three varying dosage levels. No defects were observed at the two lower levels; however, 40 percent of the litters born to females at the highest dosage had some congenital defects observed. As dosages were increased even higher, \"outright death\" of animal infants occurred. Dr. Gross rejected several of Merrell Dow's other studies as being confounded by the presence of defects in the non-exposed control group, while other studies indicated defects that were assessed by Dr. Gross as being compatible with teratogenicity, although not all of the observed defects were limb-related. Dr. Gross stated that testing animals at levels higher than human dosages and then extrapolating the results to humans was a generally accepted practice. Based on his review of the studies, Dr. Gross gave his opinion that doxyalamine succinate in Bendectin has the \"capacity\" to interfere with human cell development at normal dosages but could not testify that it does cause such defects.\n \n \n 43\n A recognized text on teratology states the customary scientific view that \"it has become axiomatic in experimental teratology that agents capable of causing any adverse biological effects can usually also be shown to be embryotoxic under the right conditions of dosage, developmental stage, and species susceptibility,\" and that \"virtually all drugs and a great range of chemicals can indeed be shown to be embryotoxic under appropriate laboratory conditions.\" James Wilson, Current Status of Teratology, in Handbook of Teratology 60 (J. Wilson & C. Fraser, eds. 1977). The author concludes that to \"eliminate drugs and chemicals because they can be shown to be embryotoxic at high dosage would be unacceptable\" because to do so \"would eliminate most drugs and many useful chemicals upon which modern society depends heavily.\" Id.\n \n \n 44\n The weakness of the plaintiffs' case results from the care with which reputable scientists use animal experiments to predict causation in humans. This weakness arises from the fact that different species of animals react differently to the same stimuli for reasons not entirely understood.4 Immune systems, nervous systems, and metabolisms (i.e., physical processing of chemical compounds) may differ greatly between species. No doubt there may be other animal experiments which, to cite one example, because of the extreme toxicity of the substance tested, would permit a reasonable jury to find that it is more probable than not that the substance causes a similar harm to humans. But Bendectin is not such a case.\n \n \n 45\n The decisive weakness in the plaintiffs' animal studies is that the factual and theoretical bases articulated for the scientific opinions stated will not support a finding that Bendectin more probably than not caused the birth defect here. On summary judgment, under the doctrine of Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), and Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), the expert evidence must show the elements required for a finding of causation. Here, except for Dr. Palmer's testimony discussed below, the plaintiffs' experts stop short of testifying that Bendectin more probably than not caused the birth defects in babies. They stop short because they have no factual or theoretical basis for a stronger hypothesis. They testify that the animal studies show that Bendectin is \"capable of causing,\" \"could cause\" or its effects are \"consistent with causing\" birth defects, not that it probably causes birth defects in general or that it did in this case. In short, they testify to a possibility rather than a probability.\n \n \n 46\n Dr. Palmer, a medical doctor, is the only witness who testified in his affidavit that Bendectin caused Brandy Turpin's defects. He stated:\n \n \n 47\n It is my opinion ... that [animal in vivo and in vitro studies, and epidemiological and other human data] shows that Bendectin and specifically its component, doxyalamine succinate, has teratogenic properties.... I have also examined the medical records pertaining to Brandy Turpin and it is my opinion.... that Bendectin did cause the limb defects from which she suffers.\n \n \n 48\n We cannot find, however, that this testimony is anything more than a personal belief or opinion. The grounds for his opinion are subject to the same criticism as the animal studies and epidemiological reanalyses submitted by the plaintiffs' other experts: the evidence cited in support of his conclusion is insufficient to meet the plaintiffs' burden of proof. Dr. Palmer does not testify on the basis of the collective view of his scientific discipline, nor does he take issue with his peers and explain the grounds for his differences. Indeed, no understandable scientific basis is stated. Personal opinion, not science, is testifying here. Dr. Palmer's own expressed skepticism as to the value of extrapolating human conclusions from animal studies further confounds the issue. Upon analysis, we conclude that Dr. Palmer's conclusions go far beyond the known facts that form the premise for the conclusion stated. This conclusion so overstates its predicate that we hold that it cannot legitimately form the basis for a jury verdict. Beyond that Dr. Palmer's opinion testimony, to the extent that it is personal opinion as described above, is inadmissible. Fed.R.Evid. 703; see also Viterbo v. Dow Chem. Co., 826 F.2d 420, 423-24 (5th Cir.1987) (physician's unsupported personal opinion of causation held inadmissible), and Calhoun v. Honda Motor Co., 738 F.2d 126, 131-32 (6th Cir.1984) (expert testimony must be based on the evidence, so as to be removed from the realm of guesswork and speculation).\n \n \n 49\n We do not mean to intimate that animal studies lack scientific merit or power when it comes to predicting outcomes in humans. Animal studies often comprise the backbone of evidence indicating biological hazards, and their legal value has been recognized by federal courts and agencies. See, e.g., International Union, UAW v. Johnson Controls, Inc., --- U.S. ----, 111 S.Ct. 1196, 1215, 113 L.Ed.2d 158 (White J., concurring) (citing Industrial Union Dep't v. American Petroleum Institute, 448 U.S. 607, 657 n. 64, 100 S.Ct. 2844, 2871 n. 64, 65 L.Ed.2d 1010 (1980)); Environmental Defense Fund, Inc. v. EPA, 548 F.2d 998, 1006-07 (D.C.Cir.1976); Proposed Guidelines for Assessing Female Reproductive Risk, 53 Fed.Reg. 24,834, 24,836-39 (1988) (discussing the use of animal studies to identify and assess reproductive hazards for human females); Proposed Guidelines for Assessing Male Reproductive Risk, 53 Fed.Reg. 24,850, 24,853-60 (1988) (discussing the use of animal studies to identify and assess reproductive hazards for human males).\n \n \n 50\n Here, the record's explanation of the animal studies is simply inadequate. Although the animal studies themselves may have been scientifically performed, the exact nature of these tests is explained only in general terms. The record fails to make clear why the varying doses of Bendectin or doxyalamine succinate given to the rats, rabbits and in vitro animal cells would permit a jury to conclude that Bendectin more probably than not causes limb defects in children born to mothers who ingested the drug at prescribed doses during pregnancy. The analytical gap between the evidence presented and the inferences to be drawn on the ultimate issue of human birth defects is too wide. Under such circumstances, a jury should not be asked to speculate on the issue of causation.\n \n \n 51\n Accordingly, the judgment of the District Court is AFFIRMED.\n \n \n \n 1\n Several statistical terms of art are essential to an understanding of the meaning of these epidemiological studies. The risk of injuries from a suspected cause is expressed as relative risk. To calculate relative risk, the number of occurrences of a given birth defect in an exposed group is divided by the number of occurrences in the control, or unaffected group. If the given defect occurs with equal frequency between the exposed and control groups, the relative risk would be 1.0. A relative risk of 1.0 is considered inconclusive, in that a researcher cannot state that a suspected agent does or does not cause a defect (i.e., the \"null hypothesis\" or \"no association\"). See generally Allen Mitchell et al., Adverse Drug Effects and Drug Surveillance, in Pediatric Pharmacology 68-69 (Sumner Yaffe ed. 1980). A relative risk of less than 1.0 suggests that a suspected agent does not cause a birth defect. A relative risk greater than 1.0 suggests that the substance may cause a given birth defect\n To gauge the reliability and credibility of their reports when repeated randomly, statisticians use a device known as the confidence interval. The confidence interval is not a \"burden of proof\" in the legal sense; rather, it is a common sense mechanism upon which statisticians rely to confirm their findings and to lend persuasive power within their profession. The confidence interval has two components: a percentage, and an interval or range. The percentage part is established by the statistician in advance of performing the studies. Frequently this percentage is set at 95 percent, although that value is somewhat arbitrary and 85 or 90 percent figures are also used. The interval, on the other hand, represents a range of possible values at high and low ends of a scale of relative risk. See, e.g., Kenneth Rothman, Modern Epidemiology 119 (1986). At a 95 percent interval the true relative risk value will be between the high and low ends of the confidence interval 95 percent of the time. See Neil Cohen, Confidence in Probability: Burdens of Persuasion in a World of Imperfect Knowledge, 60 N.Y.U.L.Rev. 385, 398-400 (1985) [hereinafter Confidence in Probability ], for example of confidence intervals and their use.\n To better understand confidence intervals, it may be helpful to picture a line, marked at hundredths intervals and extending from zero to infinity. The marking at 1.0 represents a relative risk of 1.0, the \"null value.\" If a confidence interval of \"95 percent between 0.8 and 3.10\" is cited, this means that random repetition of the study should produce, 95 percent of the time, a relative risk somewhere between 0.8 and 3.10. Because this confidence interval includes relative risk values both less than and exceeding 1.0, the null value, a researcher cannot state that the results are statistically significant. David Kaye, Is Proof of Statistical Significance Relevant?, 61 Wash.L.Rev. 1333, 1343-44 (1986), cited in DeLuca v. Merrell Dow Pharmaceuticals, Inc., 911 F.2d 941, 948 (3rd Cir.1990). For an example of such a study, see Jose Cordero et al., Is Bendectin a Teratogen?, 245 JAMA 2307 (1981), cited infra. Similarly, it is possible that a range may be entirely below 1.0, meaning that the agent does not cause birth defects. If, however, the confidence interval spans a range entirely above 1.0--e.g., from 1.75 to 10.75--then this interval would be statistically significant and would show a greater likelihood that the suspected agent did cause the studied defect. For an example of such an interval, see Brenda Eskenazi & Michael Bracken, Bendectin (Debendox) As a Risk Factor for Pyloric Stenosis, 144 Am. J. Obstetrics & Gynecology 919 (1982), cited infra.\n The sample size for any study also has an effect, both on the confidence interval and the \"power\" of the study. Power is the study's probability of detecting a difference in outcomes between exposed and nonexposed groups. See Office of Technology Assessment, Report No. OTA-BA-266, Reproductive Health Hazards in the Workplace 166 (1985). The higher the study's power, the stronger are its conclusions and findings regarding its outcome. If a sample population is small, however, the power of the study will likely be less. The information behind the study is less, and the confidence interval will likely span a wider range for a smaller sample group than for a larger one. The power is less for the smaller group than for the larger group, even though the confidence interval may still be set at 95 percent, because the smaller study's predictive value is lessened by a wide confidence interval range. A statistician could accordingly describe the probability of choosing an expected outcome in the larger study as being greater than in the smaller study. Cohen, Confidence in Probability, at 398-99.\n As can be seen, in many aspects, the concepts of confidence intervals, sampling sizes, population and power are mutually interdependent. For an overview of how epidemiology is used in risk assessment, see Proposed Guidelines for Assessing Female Reproductive Risk, 53 Fed.Reg. 24,834, 24,840-41 (1988).\n \n \n 2\n While scientists' use of confidence intervals is as a common-sense device to give professional weight to their results, such confidence intervals are not the same as the preponderance of the evidence standard of proof. This requires proving one's case by the greater weight of the evidence. Where the weight is equally divided between the plaintiff and the defendant, the party bearing the burden of proof must lose. Reduced to a percentage, this requires proof of one's case to at least 51 percent of the evidence\n \n \n 3\n As stated in his affidavit: \"It is my opinion ... specifically with respect to my experience with limb development and knowledge of the impact of the antihistamine Bendectin on cell function, that Bendectin is capable of interfering with the development of the limb in the human being and causing birth defects in the developing limb ... and that Bendectin is a human teratogen.\" Dr. Newman states further that, although he is not a medical doctor, his review of the medical files of Brandy Turpin and her mother indicates the infant plaintiff's defects are \"consistent with the effects of teratogen,\" with Bendectin being \"capable\" of being such a teratogen. Aff., Dr. Newman, Turpin v. Merrell Dow, No. 84-105 (E.D.Ky. Mar. 27, 1990), at 8, 10\n \n \n 4\n Several animal studies of cortisone, for example, found that it causes severe cleft palate birth defects in several animal species, but it does not cause this effect in humans. Alfred Bongiovanni & Arthur McPadden, Steroids During Pregnancy and Possible Fetal Consequences, 11 Fertility & Sterility 181, 184-45 (1960) (\"With doses more closely resembling those employed in medical practice,\" doses of cortisone led to frequent cleft palate defects in several species, especially mice, while surveys of human pregnancies demonstrated that almost none of this defect could be attributed to cortisone treatments. \"It would appear, therefore, that in spite of the awesome results reported in other species, the human fetus is rarely injured by maternal treatment with corticoids.\"). See also Beverley Murphy & Charlotte Branchard, Fetal Metabolism of Cortisol, 5 Current Topics in Experimental Endocrinology 197, 221 (1983) (injections of cortisone will precipitate labor in pregnant sheep, cows, goats, rabbits, and rats; this does not occur in humans), and Elwyn Grimes, Jamil Fayez & Gerald Miller, Cushing's Syndrome and Pregnancy, 42 Obstetrics & Gynecology 550, 558 (1973) (accepting findings of the Bongiovanni and McPadden report)\n \n \n ", "ocr": false, "opinion_id": 580319 } ]	Sixth Circuit	Court of Appeals for the Sixth Circuit	F	USA, Federal
1,465,549	Woodlock	1989-02-28	false	allstate-insurance-v-quinn-construction-co	null	Allstate Insurance v. Quinn Construction Co.	ALLSTATE INSURANCE COMPANY, Plaintiff, v. QUINN CONSTRUCTION COMPANY; National Union Fire Insurance Company of Pittsburgh, Pa.; And Insurance Company of North America, Defendants and Parties to a Third-Party Complaint	John B. Connarton, Jr., Boston, Mass., and Leslie W. Fleming and Dana L. Ramsay, Dennenberg, Tuffley, Bocan, Jamie-son, Black, Hopkins & Ewald, Southfield, Mich., for plaintiff., Anil Madan and Steven R. Sortevik, Ma-dan and Madan, Boston, Mass., for Nat. Union Fire Ins. Co., David Carey, Flash and Athas, Boston, Mass., for Ins. Co. of North America.	null	null	null	null	null	null	null	null	null	null	29	Published	null	<parties id="b103-15"> ALLSTATE INSURANCE COMPANY, Plaintiff, v. QUINN CONSTRUCTION COMPANY; National Union Fire Insurance Company of Pittsburgh, Pa.; and Insurance Company of North America, Defendants and Parties to a Third-Party Complaint. </parties><br><docketnumber id="b103-18"> Civ. A. No. 85-2220-WD. </docketnumber><br><court id="b103-19"> United States District Court, D. Massachusetts. </court><br><decisiondate id="b103-21"> Feb. 28, 1989. </decisiondate><br><attorneys id="b104-17"> <span citation-index="1" class="star-pagination" label="36"> *36 </span> John B. Connarton, Jr., Boston, Mass., and Leslie W. Fleming and Dana L. Ramsay, Dennenberg, Tuffley, Bocan, Jamie-son, Black, Hopkins & Ewald, Southfield, Mich., for plaintiff. </attorneys><br><attorneys id="b104-18"> Anil Madan and Steven R. Sortevik, Ma-dan and Madan, Boston, Mass., for Nat. Union Fire Ins. Co. </attorneys><br><attorneys id="b104-19"> David Carey, Flash and Athas, Boston, Mass., for Ins. Co. of North America. </attorneys>	[ "713 F. Supp. 35" ]	[ { "author_str": "Woodlock", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 3544, "opinion_text": "\n713 F. Supp. 35 (1989)\nALLSTATE INSURANCE COMPANY, Plaintiff,\nv.\nQUINN CONSTRUCTION COMPANY; National Union Fire Insurance Company of Pittsburgh, Pa.; and Insurance Company of North America, Defendants and Parties to a Third-Party Complaint.\nCiv. A. No. 85-2220-WD.\nUnited States District Court, D. Massachusetts.\nFebruary 28, 1989.\n36 John B. Connarton, Jr., Boston, Mass., and Leslie W. Fleming and Dana L. Ramsay, Dennenberg, Tuffley, Bocan, Jamieson, Black, Hopkins & Ewald, Southfield, Mich., for plaintiff.\nAnil Madan and Steven R. Sortevik, Madan and Madan, Boston, Mass., for Nat. Union Fire Ins. Co.\nDavid Carey, Flash and Athas, Boston, Mass., for Ins. Co. of North America.\n\nMEMORANDUM\nWOODLOCK, District Judge.\nPlaintiff Allstate Insurance Co. (\"Allstate\"), the successor to Northbrook Excess and Surplus Insurance Co. (\"Northbrook\"); defendant/third-party plaintiff National Union Fire Insurance Co. (\"National Union\"); and defendant/third-party defendant Insurance Co. of North America (\"INA\") have each filed motions for summary judgment. Allstate, the property insurer of Warren Petroleum Co. (\"Warren\"), is seeking reimbursement from Warren's liability insurers, under the doctrine of subrogation, for monies Allstate paid to Warren to cover the costs of cleaning up gasoline contamination that originated on Warren's property.\nFor the reasons set forth below, I will grant Allstate's Motion for Partial Summary Judgment as against National Union and deny it as against INA, grant INA's Motion 37 for Partial Summary Judgment, and deny National Union's Motion for Summary Judgment.\n\nI\nThe facts as set forth in an Agreed Statement submitted by the parties show the following.\nGasoline contamination occurred \"on, in, beneath, and about\" the site of a gasoline service station operated by Warren in Whitman, Massachusetts.\nAt all relevant times, Allstate was Warren's property damage insurer. Warren also had liability insurance, provided by INA from June 30, 1980 to July 1, 1982 and by National Union from July 1, 1982 to July 1, 1984.\nOn January 19, 1982, New England Telephone Co. (\"NETC\") discovered gasoline in an underground vault adjacent to the Warren property. NETC had the gasoline pumped out of the vault, and notified the Massachusetts Department of Environmental Quality Engineering (\"DEQE\"). The source of the gasoline was not determined, however, and no notice of the occurrence was given to Warren or any insurer.\nIn the fall of 1982, again detecting gasoline in its vault, NETC initiated an investigation, of which Warren was informed on or about November 4, 1982. Tests determined that the leak was caused by a fractured two-inch fiberglass pipe, which had been installed by defendant Quinn Construction Company (\"Quinn\") in 1976 on the Warren property.[1] The rupture of the pipe appears to have resulted from Quinn's negligent backfill of the excavation with dirt containing large rocks instead of fine gravel or sand. The pipe was repaired; further testing revealed no other leaks thereafter.\nThe pipe leaked only at the time an associated storage tank was filled, an average of five times per week over a six-year period. The estimated loss of five to six gallons of gasoline per fill was not noticed in the inventory records.\nIn November 1982, the DEQE ordered Warren to conduct certain investigative and remedial measures. Warren took these measures, incurring costs of $144,722.15, which were reimbursed by Allstate after Warren submitted claims under its policy.\nRelying on pertinent provisions of their policies, National Union and INA denied any liability to Allstate and Warren for damage to the Warren property and the associated on-site cleanup costs. Allstate filed the instant action on May 20, 1985.\n\nII\nThree issues are in dispute. First, National Union claims that Allstate is not entitled to reimbursement as Warren's subrogee because Allstate's payments to Warren were voluntary, or alternatively, because Allstate is the insurer primarily responsible for the loss. Second, National Union and INA each contend that any \"occurrence\" as defined in their policies took place, if at all, during the other's policy period. Third, National Union and INA both assert that they are not liable because their policies excluded damage to the property of the insured; in addition, INA asserts that it is not liable because its policy contains a pollution exclusion for the occurrence claimed here.\n\nA. SUBROGATION\n\n1. Voluntary Payment\n\nNational Union argues that Allstate is not entitled to subrogation because it paid Warren's claim voluntarily, rather than under legal compulsion. The law is well settled that volunteers have no right of subrogation. See MacAleese's Case, 308 Mass. 513, 516, 33 N.E.2d 280 (1941); United States Fidelity and Guar. Co. v. N.J.B. Prime Investors, 6 Mass.App.Ct. 455, 460, 377 N.E.2d 440 (1978).\n38 I find, however, that Allstate cannot properly be characterized as a volunteer in this matter.\nThe Tenth Circuit has observed:\nThe liability of an insurer need not be ironclad in order for it to settle a claim without a subsequent finding that the payment to the insured was voluntary. A payment is not voluntary if it is made with a reasonable or good faith belief in an obligation or personal interest in making that payment.\nWeir v. Federal Ins. Co., 811 F.2d 1387, 1395 (10th Cir.1987) (citation omitted). In a footnote, the court noted that the purpose of this rule is to encourage insurers to settle promptly claims that appear to be valid. Id. at 1395 n. 6.\nIn the same vein, Couch notes that \"any doubt as to the applicability of this principle [of no subrogation for voluntary payment by the insurer] is construed in favor of the insurer and the nonexistence of a volunteer status.\" 16 G. Couch, R. Anderson & M. Rhodes, Cyclopedia of Insurance Law § 61:57, at 140 (rev. 2d ed. 1983) (footnote omitted).\nAllstate could be characterized as a volunteer only if it paid Warren when it clearly had no obligation to do so under its policy. That is not the case here. In fact, the opposite is true: Allstate was liable under its policy. National Union's own brief argues persuasively that Allstate insured Warren against property damage such as Warren suffered in this case:\nAccording to the plain meaning of the language used, Allstate insured Warren for \"physical loss of or damage to\" any \"real and personal property owned, used, or intended for use by\" Warren. Further, Allstate excluded from coverage \"pollution or contamination,\" but did not exclude the \"cost of clean-up operations on [Warren's] premises.\" Thus, Allstate was Warren's primary insurance carrier for Warren's own property.\nMemorandum of Defendant, National Union Fire Insurance Co. of Pittsburgh, Pa., in Support of Its Motion for Summary Judgment at 17 (citation omitted).\nUnder the circumstances, I find that the payment by Allstate to Warren was not voluntary and therefore does not preclude Allstate from the right of subrogation.[2]\n\n2. Primary Responsibility\n\nNational Union argues that subrogation is inappropriate in this case because Allstate, rather than National Union or INA, was the primarily responsible insurance company. Allstate is entitled to subrogation only if Warren was entitled to recover both from Allstate and from one or both of the liability insurers, and if Allstate's liability is secondary to that of the liability insurer(s). See Frost v. Porter Leasing Corp., 386 Mass. 425, 426-27, 436 N.E.2d 387 (1982) (defining subrogation).\nExamination of the policies indicates that Allstate is only secondarily liable. In the Northbrook policy, Item 15, entitled \"Other Insurance,\" provides that except for two kinds of insurance not at issue in this case,\nthis policy shall not cover to the extent of any other insurance, whether prior or subsequent hereto in date, regardless by whomsoever effected, and whether directly or indirectly covering the same property against the same perils. This company shall be liable for loss or damage only to the extent of value in excess of the amount recoverable from such other insurance.\nThe National Union and INA policies contain no similar clause. Therefore, if their policies are applicable, the liability insurers are primarily liable while Allstate is secondarily liable.\nI turn to examine the applicability of the policies of the two liability insurers.\n\nB. OCCURRENCE\nNational Union and INA both contend that the contamination did not result from an \"occurrence\" within the periods of their respective policies, June 30, 1980 to 39 July 1, 1982 for INA and July 1, 1982 to July 1, 1984 for National Union. \"Occurrence\" is defined in the National Union policy as \"an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured\" (emphasis in original).[3]\nA pair of recent First Circuit cases have discussed the meaning of \"occurrence\" in the insurance context.[4] In Eagle-Picher Indus. v. Liberty Mutual Ins. Co., 682 F.2d 12, 24-25 (1st Cir.1982), cert. denied, 460 U.S. 1028, 103 S. Ct. 1280, 75 L. Ed. 2d 500 (1983), an asbestos case, the court held the date of the onset of disease symptoms rather than the date of initial exposure to the cause of the disease or the date of actual diagnosisto be the date of occurrence. The court concluded that a disease occurs \"when it becomes clinically evident, that is, when it becomes reasonably capable of medical diagnosis.\" Id. at 25 (footnote omitted).\nA somewhat different articulation was offered in American Home Assur. Co. v. Libbey-Owens-Ford Co., 786 F.2d 22 (1st Cir.1986), involving the failure of the windows in the John Hancock building. There the court held that \"the test for determining the date of the occurrence should be the time at which a reasonable person would be aware that a defect exists that may give rise to a cause of action.\" Id. at 30. An earlier case, Bartholomew v. Insurance Co. of N. Am., 502 F. Supp. 246 (D.R.I.1980), aff'd sub nom. Bartholomew v. Appalachian Ins. Co., 655 F.2d 27 (1st Cir.1981), is in accord. Adjudicating a dispute over car wash equipment that malfunctioned continually over a three-year period, Chief Judge Pettine ruled that the \"occurrence\" took place when the plaintiff knew, or reasonably should have known, that the defect existed. Id. at 252-54.[5]\nNational Union seeks to avoid these occurrence rules by focusing on when NETC discovered the gasoline contamination. Looking to Eagle-Picher, National Union contends that coverage in the instant case was triggered in January 1982during the INA policy periodwhen, unbeknownst to Warren, the gas leak became evident to NETC. NETC is not the relevant discoverer, however. In the absence of knowledge by Warren, a necessary predicate for an \"occurrence,\" as that term has come to be understood in the First Circuit, is missing. If not communicated to Warren, NETC's knowledge of contaminationknowledge which did not include identity of the pollution's sourcewas immaterial. National Union is liable here because November 1982 was the first time Warren knew of the contamination, and there is nothing to indicate that it should have known about the leak earlier.[6]\nI find that liability for the Warren gas leak is established by the \"occurrence\" of November 1982during the period covered by the National Union policywhen gasoline contamination first became known to Warren.\n\nC. EXCLUSIONS\n\n1. Damage to Insured's Premises\n\nBoth liability policies exclude damage to property owned, occupied, or used 40 by the insured; property in the care, custody, or control of the insured; and property as to which the insured is exercising physical control. Both liability insurers claim that this exclusion bars Allstate's claim in this case. Allstate contends that the \"owned property\" exclusion does not apply to cleanup activities performed on or below the insured's property to prevent contamination of the property of third parties.\nThere are no Massachusetts cases dealing with this type of exclusionary clause. In other insurance contexts, the Supreme Judicial Court has held that when \"the terms of [an] exclusionary clause are plain and free from ambiguity ... we must construe the words of the policy in their usual and ordinary sense.\" Barnstable County Mutual Fire Ins. Co. v. Lally, 374 Mass. 602, 605, 373 N.E.2d 966 (1978); accord Continental Casualty Co. v. Gilbane Bldg. Co., 391 Mass. 143, 147, 461 N.E.2d 209 (1984) (\"We read the policy as written. We are not free to revise it or change the order of the words.\"); Thomas v. Hartford Accident and Indem. Co., 398 Mass. 782, 784, 500 N.E.2d 810 (1986). At the same time, Massachusetts follows the general rule of insurance law that \"[e]xclusions from coverage are to be strictly construed. Any ambiguity in ... exclusions must be construed against the insurer.\" Vappi & Co. v. Aetna Casualty & Surety Co., 348 Mass. 427, 431, 204 N.E.2d 273 (1965) (citations omitted).\nThe \"owned property\" exclusion has been considered in other jurisdictions, where courts have held that it does not bar recovery of environmental cleanup costs. In Bankers Trust Co. v. Hartford Accident and Indem. Co., 518 F. Supp. 371, vacated to permit submission of additional evidence, 621 F. Supp. 685 (S.D.N.Y. 1981), the court found that cleanup of spillage from a leaking fuel oil pipe was not excluded by a clause identical to the one here. The court reasoned that the spill was not affecting the property owners' own land use; rather, the cleanup was done only to prevent damage to the property of third parties. Furthermore, the proper construction of an ambiguous provision, the court pointed out, is one that yields a reasonable result: if the costs of cleanup were not recoverable, the insured would have the incentive simply to allow the pollution to continue. Under that scenario, the insurance company would ultimately have to spend much more to clean up the resulting actual damage to the property of third parties. For these reasons, the court concluded that the cleanup was as a matter of law within the coverage of the liability policy, which it construed to cover work performed on the insured's property in order to prevent damage to the property of third parties. Id. at 373-74; accord Consolidated Rail Corp. v. Certain Underwriters at Lloyds, No. 84-2609, 1986 WL 6547 (E.D. Pa. June 5, 1986), aff'd without published opinion, 853 F.2d 917 (3d Cir. 1988) (\"There is no logical or just reason why an insured should allow a condition on his land to result in damage to others simply to assure and secure coverage when preventive measures could prevent not only substantial damage or loss to the property of others, but also prevent sizeable claims for damages against the insured and his insurer.\") (quoting Lehigh Elec. and Eng'g Co. v. Selected Risks Ins. Co., 30 Pa.D. & C.3d 120, 126 (1982)).[7]\nI find these authorities persuasive.[8] There is no question that \"[t]he broad purpose 41 of [a] comprehensive general liability insurance policy, so far as it relate[s] to property, [is] to cover [damage to] ... other people's property.\" Crane Serv. & Equip. Corp. v. United States Fidelity & Guar. Co., 22 Mass.App.Ct. 666, 668, 496 N.E.2d 833 (1986). It is entirely consistent with this purpose to interpret liability policies to cover pollution cleanup activities necessary to prevent costly damage to the property of others. In some cases, the property owner will have no first-party insurance; he should not forfeit coverage by promptly cleaning up contamination rather than waiting for it to cause serious environmental damage. In the unique context of environmental contamination, where prevention can be far more economical than post-incident cure, it serves no legitimate purpose to assert that soil and groundwater pollution must be allowed to spread over boundary lines before they can be said to have caused the damage to other people's property which liability insurance is intended to indemnify.\nFor these reasons, I find that an \"owned property\" exclusion in a liability policy does not bar recovery of the costs of cleaning up environmental contamination which presented a demonstrated danger to the property of another.\n\n2. Sudden and Accidental\n\nAlthough my determination that National Union is liable here does not require that all of INA's arguments be addressed, I do note INA's conclusory assertion that the gasoline contamination here was not sudden and accidental and accordingly is subject to exclusion. That assertion has been disposed of fully by the Massachusetts Appeals Court in Shapiro v. Public Serv. Mutual Ins. Co., 19 Mass.App.Ct. 648, 649-53, 477 N.E.2d 146, review denied, 395 Mass. 1102, 480 N.E.2d 24 and 395 Mass. 1105, 482 N.E.2d 328 (1985). I need only cite the casea modest effort not undertaken by INAin order to state my rejection of that assertion.\n\nIII\nIn summary, I find that Allstate is entitled to subrogation because its payment to Warren was not voluntary and because it was only secondarily liable for Warren's cleanup costs; that National Union rather than INA was on the risk because the \"occurrence\" took place during its policy period, in November 1982, when Warren first discovered the contamination; and that no exclusion in Warren's liability policy is applicable because the cleanup was necessary to address the demonstrated threat of environmental damage to the property of third parties.\nAccordingly,\n(1) Allstate's motion for summary judgment is GRANTED as against National Union and DENIED as against INA;\n(2) INA's motion for summary judgment is GRANTED; and\n(3) National Union's motion for summary judgment is DENIED; and it is\nORDERED in accordance with the stipulation of the parties that judgment in the amount of $144,722.15, plus legally applicable interest from the date of the filing of the Complaint, will be entered for plaintiff Allstate against defendant National Union at the conclusion of this case.\nNOTES\n[1] Quinn has not filed an answer and is not involved in the cross-motions for summary judgment.\n[2] My disposition of this issue makes it unnecessary to consider Allstate's argument, first made at the hearing on these motions, that the rule excluding volunteers from subrogation rights is inapplicable to contractual, as opposed to legal, subrogation.\n[3] The copy of the INA policy submitted by the parties appears to contain no definition of \"occurrence.\" But the quoted definition is apparently standard for liability policies of this type, sometimes slightly varied as noted infra note 5. In its briefing, Allstate describes the INA definition as identical to the National Union definition. INA does not challenge that characterization.\n[4] Although the parties appear to agree that Massachusetts law governs their dispute, I have been directed to no cases in which the issue here is considered under the law of Massachusetts. Discussed below, however, are cases from within the First Circuit that decide this issue after analysis of opinions from other jurisdictions and general principles of insurance law.\n[5] I note that in Eagle-Picher and American Home Assurance, unlike Bartholomew or the instant case, \"occurrence\" is defined in the policies at issue as an accident which resulted in injury \"during the policy period.\" However, the results in the cases do not turn on this distinction.\n[6] According to the Agreed Statement of Facts, the estimated amount of gasoline loss was only five-six gallons per fill of the storage tank and thus was not noticed in the inventory records.\n[7] In United States Aviex Co. v. Travelers Ins. Co., 125 Mich.App. 579, 336 N.W.2d 838 (1983), also relied on by Allstate, Brief in Support of Motion for Partial Summary Judgment at 22-23, the court based on an entirely different rationale its holding that an \"owned property\" exclusion allowed recovery for cleanup of chemical contamination. The panel there, agreeing with the court below, stated that \"percolating water is not owned by the owner of the land under which it flows and so does not fit within the policy's exclusion.\" 336 N.W.2d at 843. This rationale is inapplicable in Massachusetts. \"It is, of course, settled in this Commonwealth that a landowner has absolute ownership in the subsurface percolating water in his land.\" Gamer v. Town of Milton, 346 Mass. 617, 620, 195 N.E.2d 65 (1964).\n[8] In a recent case, Judge Mazzone held that the \"owned property\" exclusion shielded an insurance company from liability for pollution damages. Travelers Ins. Co. v. Waltham Indus. Laboratories Corp., 1988 U.S. Dist. LEXIS 10873, No. 87-0760-MA, slip op. at 29-32, 1988 WL 103323 (D.Mass. Sept. 26, 1988). In that case, there appears to have been no evidence that the cleanup activities were necessary to prevent damage to the property of third parties, and the decision does not discuss the line of authority found persuasive here.\n\n", "ocr": false, "opinion_id": 1465549 } ]	D. Massachusetts	District Court, D. Massachusetts	FD	Massachusetts, MA
2,676,138	null	2014-05-28	false	ram-pizza-v-super-ct-ca42	null	Ram Pizza v. Super. Ct. CA4/2	null	null	null	null	null	null	null	null	null	null	null	null	0	Unpublished	null	null	null	[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 4, "download_url": "http://www.courts.ca.gov/opinions/nonpub/E060399.PDF", "author_id": null, "opinion_text": "Filed 5/28/14 Ram Pizza v. Super. Ct. CA4/2\n\n NOT TO BE PUBLISHED IN OFFICIAL REPORTS\n California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for\npublication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication\n or ordered published for purposes of rule 8.1115.\n\n\n IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA\n\n FOURTH APPELLATE DISTRICT\n\n DIVISION TWO\n\n\n\nRAM PIZZA, INC., et al.,\n\n Petitioners, E060399\n\nv. (Super.Ct.No. RIC 1100608)\n\nTHE SUPERIOR COURT OF OPINION\nRIVERSIDE COUNTY,\n\n Respondent;\n\nDOMINOS PIZZA, et al.,\n\n Real Parties in Interest.\n\n\n\n\n ORIGINAL PROCEEDINGS; petition for writ of mandate. Richard J.\n\nOberholzer, Judge. (Retired Judge of the Kern Super. Ct. assigned by the Chief Justice\n\npursuant to art. VI, § 6 of the Cal. Const.) Granted in part and denied in part.\n\n Reid & Hellyer, Michael G. Kerbs and David G. Moore for Petitioners.\n\n No appearance for Respondent.\n\n\n\n\n 1\n\f Kolar & Associates, Elizabeth L. Kolar and Michelle A. Burr for Real Parties in\n\nInterest.\n\n In this matter we have reviewed the petition and the opposition filed by real parties\n\nin interest. We have determined that resolution of the matter involves the application of\n\nsettled principles of law, and that issuance of a peremptory writ in the first instance is\n\ntherefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal. 3d 171,\n\n178.) We will grant the petition in part and deny in part.\n\n DISCUSSION\n\n With respect to petitioners’ cause of action for breach of contract, real parties\n\nrelied on the fact that petitioners never presented a formal request for approval of the\n\ntransfer of the franchises and the required information about the proposed transferee.\n\nHowever, petitioners’ assertion that real parties’ representative clearly informed\n\npetitioners that the proposed transferee would not be approved could, on a persuasive and\n\ndetailed evidentiary showing, be found to excuse petitioners’ failure to perform that\n\ncondition or obligation. (See generally Civ. Code, §§ 1440, 1515; San Bernardino Valley\n\nWater Development Co. v. San Bernardino Valley Municipal Water Dist. (1965) 236\n\nCal. App. 2d 238.) Hence, in our view this cause of action should have been allowed to\n\nproceed to trial.\n\n\n\n\n 2\n\f As petitioners point out in their petition for rehearing, substantially the same\n\nanalysis applies to the cause of action for breach of the implied covenant of good faith\n\nand fair dealing, and we granted rehearing to consider that issue. Real parties in interest\n\nargue again that conduct which is not a breach of contract cannot support a claim for\n\nbreach of the implied covenant, and we agree. (See Agosta v. Astor (2004) 120\n\nCal. App. 4th 596, 607.) But the gravamen of petitioners’ claims is that real parties in\n\ninterest did not exercise their right of refusal in good faith when they allegedly informed\n\npetitioners that the proposed transferee was not acceptable. If supported by sufficient\n\nevidence, this would also permit petitioners to pursue a claim of breach of the implied\n\ncovenant of good faith.\n\n DISPOSITION\n\n Let a peremptory writ of mandate issue, directing the Superior Court of Riverside\n\nCounty to vacate its order granting summary adjudication of the causes of action for\n\nbreach of contract and breach of the implied covenant of good faith and fair dealing, and\n\nto enter a new order denying real parties’ motion in that respect. In all other respects the\n\npetition is denied.\n\n\n\n\n 3\n\f Petitioners are directed to prepare and have the peremptory writ of mandate\n\nissued, copies served, and the original filed with the clerk of this court, together with\n\nproof of service on all parties. In the interests of justice, the parties shall bear their own\n\ncosts.\n\n NOT TO BE PUBLISHED IN OFFICIAL REPORTS\n\n KING\n J.\nWe concur:\n\n\n\nRICHLI\n Acting P. J.\n\n\n\nMILLER\n J.\n\n\n\n\n 4\n\f", "ocr": false, "opinion_id": 2676138 } ]	California Court of Appeal	California Court of Appeal	SA	California, CA
847,528	null	2005-12-20	false	virginia-l-mccarley-v-general-motors-corp	null	Virginia L McCarley v. General Motors Corp	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/20051220_S129749_24_129749-cjord-stip.pdf", "author_id": null, "opinion_text": "Order Michigan Supreme Court\n Lansing, Michigan\n\n December 20, 2005 Clifford W. Taylor,\n Chief Justice\n\n Michael F. Cavanagh\n Elizabeth A. Weaver\n Marilyn Kelly\n 129749 & (22) Maura D. Corrigan\n Robert P. Young, Jr.\n Stephen J. Markman,\n Justices\n VIRGINIA McCARLEY,\n Plaintiff-Appellee,\n SC: 129749\n v CoA: 262982\n Washtenaw CC: 04-000238-CZ\n GENERAL MOTORS CORPORATION,\n Defendant-Appellant\n ___________________________________\n\n\n On order of the Chief Justice, a stipulation signed by the attorneys for the\n parties agreeing to the dismissal of this application for leave to appeal is considered and\n IT IS HEREBY ORDERED that the application for leave to appeal is DISMISSED with\n prejudice and without costs.\n\n\n\n\n I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the\n foregoing is a true and complete copy of the order entered at the direction of the Court.\n December 20, 2005 _________________________________________\n Clerk\n\f", "ocr": false, "opinion_id": 847528 } ]	Michigan Supreme Court	Michigan Supreme Court	S	Michigan, MI
582,596	King, Lake, Per Curiam, Wiener	1992-06-10	false	ncnb-texas-national-bank-v-the-travelers-indemnity-company-the-travelers	null	Ncnb Texas National Bank v. The Travelers Indemnity Company, the Travelers Indemnity Company	NCNB TEXAS NATIONAL BANK, Plaintiff-Appellee, v. the TRAVELERS INDEMNITY COMPANY, Et Al., Defendants, the Travelers Indemnity Company, Defendant-Appellant	Joseph W. Spence, Kenneth P. Gudgen, Gandy, Michener, Swindle, Whitaker & Pratt, Ft. Worth, Tex., for Travelers Indent., Patrick O. Strauss, W. Alan Wright, Haynes & Boone, Dallas, Tex., for NCNB Texas Nat. Bank.	null	null	null	null	null	null	null	null	null	null	0	Published	null	<parties id="b606-7"> NCNB TEXAS NATIONAL BANK, Plaintiff-Appellee, v. The TRAVELERS INDEMNITY COMPANY, et al., Defendants, The Travelers Indemnity Company, Defendant-Appellant. </parties><br><docketnumber id="b606-11"> No. 91-1993. </docketnumber><br><court id="b606-12"> United States Court of Appeals, Fifth Circuit. </court><br><decisiondate id="b606-14"> June 10, 1992. </decisiondate><br><attorneys id="b606-22"> Joseph W. Spence, Kenneth P. Gudgen, Gandy, Michener, Swindle, Whitaker & Pratt, Ft. Worth, Tex., for Travelers Indent. </attorneys><br><attorneys id="b606-23"> Patrick O. Strauss, W. Alan Wright, Haynes & Boone, Dallas, Tex., for NCNB Texas Nat. Bank. </attorneys><br><judges id="b606-25"> Before KING and WIENER, Circuit Judges, and LAKE, District Judge. <a class="footnote" href="#fn" id="fn_ref"> * </a> </judges><div class="footnotes"><div class="footnote" id="fn" label=""> <a class="footnote" href="#fn_ref"> </a> <p id="b606-16"> District Judge for the Southern District of Texas, sitting by designation. </p> </div></div>	[ "962 F.2d 520" ]	[ { "author_str": "Per Curiam", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/962/962.F2d.520.91-1993.html", "author_id": null, "opinion_text": "962 F.2d 520\n NCNB TEXAS NATIONAL BANK, Plaintiff-Appellee,v.The TRAVELERS INDEMNITY COMPANY, et al., Defendants,The Travelers Indemnity Company, Defendant-Appellant.\n No. 91-1993.\n United States Court of Appeals,Fifth Circuit.\n June 10, 1992.\n \n Joseph W. Spence, Kenneth P. Gudgen, Gandy, Michener, Swindle, Whitaker & Pratt, Ft. Worth, Tex., for Travelers Indem.\n Patrick O. Strauss, W. Alan Wright, Haynes & Boone, Dallas, Tex., for NCNB Texas Nat. Bank.\n Appeal from the United States District Court for the Northern District of Texas.\n Before KING and WIENER, Circuit Judges, and LAKE, District Judge.\n PER CURIAM:\n \n \n 1\n The Travelers Indemnity Company appeals from the district court's summary judgment, 770 F.Supp. 330, ordering it to pay NCNB Texas National Bank's attorney's fees incurred in seeking payment under an injunction bond. Travelers argues that NCNB has no right to attorney's fees, since NCNB was not a party to the injunction bond. Since the bond expressly provided that NCNB's predecessor was the beneficiary of the bond, however, we hold that NCNB was entitled to its attorney's fees under Texas law.I. BACKGROUND\n \n \n 2\n Forestwood National Bank of Dallas issued a letter of credit to Doal Ventures, a Texas partnership, who then furnished the letter of credit to Longcrier Farms, Inc. to facilitate Doal's investment in Longcrier. Longcrier assigned its rights in the proceeds of the letter of credit to InterFirst Bank Fort Worth, N.A., whose assets have since been transferred, via the FDIC, to NCNB. Doal later obtained an agreed temporary injunction (with the acquiescence of InterFirst) in state court, enjoining InterFirst and Longcrier from presenting the letter of credit and enjoining Forestwood Bank from paying the letter of credit. As a condition of obtaining the injunction, the state court required Doal to file a security bond. Doal, with the Travelers Indemnity Company as surety, filed a temporary injunction bond in the amount of $110,000. The bond obligated Doal and Travelers to pay InterFirst if the injunction were dissolved.\n \n \n 3\n NCNB later sued in federal court to enforce the letter of credit and to dissolve the temporary injunction. The district court held that the state court had improvidently granted the agreed temporary injunction. The district court also held that the letter of credit was a valid obligation of Forestwood, and that NCNB was the owner and holder of the letter of credit. The district court ordered the injunction dissolved and required Forestwood to pay NCNB all sums due under the letter of credit.\n \n \n 4\n By then, however, Forestwood was insolvent. NCNB demanded payment of the bond from Travelers. When Travelers refused to pay, NCNB brought this suit for breach of contract to recover on the bond. The district court held that NCNB was entitled to recover the face amount of the bond, $110,000, plus its attorney's fees incurred in compelling payment from Travelers. Travelers has appealed only the award of attorney's fees.\n \n II. ANALYSIS\n \n 5\n Travelers argues that Texas law does not permit recovery of attorney's fees based on a contract unless the party seeking payment is a party to the contract. The relevant provision of Texas law states that \"[a] person may recover reasonable attorney's fees from an individual or corporation, in addition to the amount of a valid claim and costs, if the claim is for ... an oral or written contract.\" Tex.Civ.Prac. & Rem.Code § 38.001(8). Travelers has not appealed that portion of the district court's judgment holding Travelers liable for the face amount of the bond.\n \n \n 6\n Texas law allows a third person, not a party to a contract, to \"have a cause of action to enforce the contract if the contract was made for that person's benefit.\" Dairyland County Mut. Ins. Co. v. Childress, 650 S.W.2d 770, 775 (Tex.1983) (citing Quilter v. Wendland, 403 S.W.2d 335, 337 (Tex.1966); Knox v. Ball, 144 Tex. 402, 191 S.W.2d 17, 21 (1946)). Such a third party beneficiary may also recover attorney's fees under § 38.001(8). Id.1\n \n \n 7\n The temporary injunction bond provided that Doal and Travelers \"acknowledge ourselves bound to pay to InterFirst Bank-Fort Worth ... the sum of $110,000.00 ... if the TEMPORARY INJUNCTION be dissolved in whole or in part.\" Travelers does not dispute that NCNB is the successor in interest to InterFirst. On appeal, Travelers does not dispute that the condition of the bond has been met, and that NCNB was therefore entitled to payment of the face amount of the bond. As a consequence, we think it is beyond cavil that NCNB is a third-party beneficiary of the bond. As such, Dairyland unequivocally gives NCNB the right to recover its attorney's fees.2III. CONCLUSION\n \n \n 8\n The district court's summary judgment, awarding NCNB attorney's fees, is AFFIRMED.\n \n \n \n \n District Judge for the Southern District of Texas, sitting by designation\n \n \n 1\n Dairyland construed Tex.Rev.Civ.Stat.Ann. art. 2226, which has subsequently been repealed and codified without change as Tex.Civ.Prac. & Rem.Code §§ 38.001-38.006. See, e.g., Murrco Agency, Inc. v. Ryan, 800 S.W.2d 600 (Tex.App.--Dallas 1990). Dairyland applied \"the contract provision of Art. 2226,\" which has been codified as § 38.001(8). Dairyland, 650 S.W.2d at 775\n \n \n 2\n As this opinion demonstrates, the court has not considered the arguments made in NCNB's supplemental letter brief, which were not made below or until oral argument in this court. As a consequence, Travelers' motion to strike NCNB's letter brief is DENIED as moot\n \n \n ", "ocr": false, "opinion_id": 582596 } ]	Fifth Circuit	Court of Appeals for the Fifth Circuit	F	USA, Federal
462,738	Henderson, Hill, Per Curiam, Tuttle	1986-01-21	false	jeremy-carter-a-minor-by-and-through-his-parents-and-next-friends-douglas	null	Jeremy Carter, a Minor by and Through His Parents and Next Friends Douglas and Tina Carter, and Douglas and Tina Carter, Individually v. United States	Jeremy CARTER, a Minor by and Through His Parents and Next Friends Douglas and Tina CARTER, and Douglas and Tina Carter, Individually, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee	Daniel L. Molloy, Tampa, Fla., for plaintiffs-appellants., Gary J. Takacs, Lynne England, Asst. U.S. Attys., Tampa, Fla., for defendant-ap-pellee.	null	null	null	null	null	null	null	null	null	null	13	Published	null	<parties data-order="0" data-type="parties" id="b1011-13"> Jeremy CARTER, a minor By and Through his parents and next friends Douglas and Tina CARTER, and Douglas and Tina Carter, individually, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. </parties><br><docketnumber data-order="1" data-type="docketnumber" id="b1011-16"> No. 85-3162. </docketnumber><br><court data-order="2" data-type="court" id="b1011-17"> United States Court of Appeals, Eleventh Circuit. </court><br><decisiondate data-order="3" data-type="decisiondate" id="b1011-18"> Jan. 21, 1986. </decisiondate><br><attorneys data-order="4" data-type="attorneys" id="b1012-4"> <span citation-index="1" class="star-pagination" label="926"> *926 </span> Daniel L. Molloy, Tampa, Fla., for plaintiffs-appellants. </attorneys><br><attorneys data-order="5" data-type="attorneys" id="b1012-5"> Gary J. Takacs, Lynne England, Asst. U.S. Attys., Tampa, Fla., for defendant-ap-pellee. </attorneys><br><p data-order="6" data-type="judges" id="b1012-7"> Before HILL and HENDERSON, Circuit Judges, and TUTTLE, Senior Circuit Judge. </p>	[ "780 F.2d 925" ]	[ { "author_str": "Per Curiam", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/780/780.F2d.925.85-3162.html", "author_id": null, "opinion_text": "780 F.2d 925\n 4 Fed.R.Serv.3d 69\n Jeremy CARTER, a minor By and Through his parents and nextfriends Douglas and Tina CARTER, and Douglas andTina Carter, individually, Plaintiffs-Appellants,v.UNITED STATES of America, Defendant-Appellee.\n No. 85-3162.\n United States Court of Appeals,Eleventh Circuit.\n Jan. 21, 1986.\n \n Daniel L. Molloy, Tampa, Fla., for plaintiffs-appellants.\n Gary J. Takacs, Lynne England, Asst. U.S. Attys., Tampa, Fla., for defendant-appellee.\n Appeal from the United States District Court for the Middle District of Florida.\n Before HILL and HENDERSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.\n PER CURIAM:\n \n \n 1\n The plaintiffs-appellants, Jeremy Carter, a minor suing by and through his parents and next friends Douglas and Tina Carter, and Douglas and Tina Carter, individually, filed this action against the United States on October 7, 1981 alleging that military medical personnel negligently treated Mrs. Tina Carter and her son Jeremy during and immediately after his birth. After two years of discovery and three continuances, the government field a motion to dismiss for failure of the plaintiffs to prosecute and for their failure to comply with the court's discovery orders. The district court, without holding a hearing or considering lesser sanctions, granted the motion on the day it was filed by the government. Rather than appeal the dismissal directly, the Carters instead filed a motion to vacate the order under Fed.R.Civ.Pro. 60(b). The district court denied that motion and a timely appeal was taken from that judgment. After a review of the briefs, the record and the relevant case law, we reverse the district court's denial of the motion to vacate the judgment.\n \n \n 2\n On December 29, 1981, the district court directed the plaintiffs to confer with the government within fifteen days and to furnish the court with an estimate of the length of the trial. The plaintiffs failed to respond to this order and the court issued a second order to the same effect on February 17, 1982.1 The plaintiffs responded two days later stating that they anticipated a period of twelve months for discovery and that they estimated that the trial would take approximately three to five days.\n \n \n 3\n On January 20, 1982, the government served the plaintiffs with its first set of interrogatories and requests to produce documents. These interrogatories included a question seeking the identity of the plaintiffs' expert witnesses. The plaintiffs failed to respond prompting the government to file motions to compel answers. On August 9, 1982, the court granted these motions directing the plaintiffs to fully comply with the discovery requests within ten days.\n \n \n 4\n The plaintiffs answered the interrogatories fourteen days after the motion to compel was granted by the district court.2 The responses were unverified. Furthermore, the plaintiffs replied to the inquiry concerning expert witnesses by stating that they were unable to identify them at that particular time but would do so within ninety days.\n \n \n 5\n On January 13, 1983, both parties filed a motion for a continuance based on the plaintiffs' difficulties in communicating with their counsel and their failure to obtain expert witnesses. The plaintiffs had been out of the country for the four months immediately following the filing of their complaint. The court granted this joint motion for a continuance.\n \n \n 6\n On April 17, 1983, the parties filed another joint motion for a continuance. This motion was also granted by the court.\n \n \n 7\n On June 1, 1983, the government served the plaintiffs with a second set of interrogatories. After receiving no response, the government filed a motion to compel which was granted on January 19, 1984. The interrogatories were answered twelve days later.\n \n \n 8\n The parties filed a pretrial order on September 2, 1983, in preparation for a scheduled pretrial conference on that date. Plaintiffs' counsel stated in an affidavit attached to his motion to vacate the dismissal order that he met with counsel for the government on August 30 or 31, 1983 and advised him that he would request a continuance of the trial at the pretrial conference. According to plaintiffs' counsel, he told the government about various witnesses he thought he would call as experts. In his affidavit the attorney stated that he assumed that the government was satisfied with this explanation. A third continuance was granted on September 2, 1983. This was the first and only continuance granted solely at the plaintiffs' request. The court also continued discovery until February 29, 1984 and set a second pretrial conference for March 29, 1984.\n \n \n 9\n On March 29, 1984, the government filed a motion to dismiss for failure to prosecute pursuant to Fed.R.Civ.P. 37 and 41(b) because of the plaintiffs' failure to identify their expert witnesses and their failure to supplement their answers to interrogatories. On that same date, plaintiffs' counsel provided the government with those supplemental responses although none of their experts had yet examined Jeremy Carter and the discovery deadline had since passed. At the second pretrial conference, which was held on the day that the motion to dismiss was filed, the court granted the motion to dismiss, stating as its reason that the plaintiffs \"failed to prosecute this case with due diligence.\" A motion to vacate pursuant to Fed.R.Civ.P. 60(b) was timely filed by the plaintiffs and denied by the court on February 1, 1985. It is that order that is currently on appeal to this court.\n \n \n 10\n At the outset, we note that the Carters did not appeal the order granting the motion to dismiss. It is well settled that an appeal from a denial of a Rule 60(b) motion cannot serve as a substitute for an appeal of the underlying order. See Parks v. U.S. Life & Credit Corp., 677 F.2d 838, 840 (11th Cir.1982). In such circumstances we will reverse a district court's decision denying a Rule 60(b) motion only upon a showing of an abuse of discretion. Fackelman v. Bell, 564 F.2d 734 (5th Cir.1977).3 It is also true, however, that a Rule 60(b) motion \"is a flexible tool designed to do substantial justice; [cites omitted] and we should not stray too far into technical niceties in considering its applicability.\" Id. at 736-37. In addition, the Rule's \"main application is to those cases in which the true merits of a case might never be considered because of technical error....\" Id. at 735.\n \n \n 11\n The district court dismissed the plaintiffs' action summarily and in one paragraph. The order does not disclose the Federal Rule of Civil Procedure upon which it was predicated, but it did state that the \"plaintiffs have failed to prosecute the action with due diligence.\" Therefore, we must assume that the court dismissed the case under Fed.R.Civ.P. 41(b)4 for failure to prosecute.\n \n \n 12\n In this circuit, the legal standard to be applied under Rule 41(b) is whether there is a \"clear record of delay or willful contempt and a finding that lesser sanctions would not suffice.\" Jones v. Graham, 709 F.2d 1457, 1458 (11th Cir.1983) (emphasis in original). Although the relevant standard of review is abuse of discretion, id., case law makes clear that the dismissal of an action \"is a sanction of last resort, applicable only in extreme circumstances.\" Id. The district court in the present case made no explicit finding that lesser sanctions would not be appropriate. The motion to dismiss was granted the same day it was filed thereby precluding the plaintiffs from filing a responsive brief. And, the district court gave no reasons to support its decision, making review of that decision difficult. Therefore, were this case before us on direct appeal of the dismissal order, we would have little trouble in deciding that the court abused its discretion under Rule 41(b). As noted earlier, however, the issue facing us is whether the court abused its discretion by failing to grant the plaintiffs' Rule 60(b) motion. We turn to that issue.\n \n \n 13\n After the court dismissed the suit, the plaintiffs filed a motion to vacate the judgment wherein they attempted to explain their failure to comply with various court orders and furnish a list of expert witnesses. They stated to the court that they had trouble communicating with their attorney because they had been assigned and reassigned to several Air Force bases between October, 1981 and December, 1983. In addition, the plaintiffs were out of the country for the four months immediately following the filing of their complaint and Douglas Carter, the father, was stationed in Greenland for over a month in late 1983 and early 1984. They also experienced financial difficulties, problems with their car, and Douglas Carter's absence allegedly precluded them from keeping an appointment with an expert witness in late 1983. To make matters worse, they lost the first set of interrogatories during an emergency move from the Phillipines. Their attorney claimed that he did not supplement the interrogatories because he thought that he had informally supplied those answers to counsel for the government in the days preceding the first pretrial conference.5 He did inform the court that he had hand-delivered those answers to the government on March 29, 1984, the day that the court entered the dismissal order.6\n \n \n 14\n The court denied the plaintiffs' Rule 60(b) motion without comment. They claim that this denial constituted an abuse of discretion because they were entitled to relief under subsection 1 of Rule 60(b), which states the following:\n \n \n 15\n On motion and upon such terms as are just, the court may relieve a party of his legal representative from a final judgment order or proceeding for the following reasons:\n \n \n 16\n (1) mistake, inadvertence, surprise, or excusable neglect....\n \n \n 17\n The purpose of a Rule 60(b) motion is \"to permit the trial judge to reconsider ... matters so that he can correct obvious errors or injustices and so perhaps obviate the laborious process of appeal.\" Fackelman v. Bell, 564 F.2d 734. 736 (11th Cir.1977). As noted earlier, the court in this case invoked the harsh sanction of dismissal without any warning to the plaintiffs, without a hearing or a responsive brief, and without articulating a reason that lesser sanctions would not suffice. In their motion to vacate, the plaintiffs alleged several facts which tended to diminish, at least to some extent, the egregiousness of their conduct. By this time the plaintiffs had supplied the government with their list of expert witnesses and were ready to proceed with the trial. In light of these circumstances,7 and the district court's failure in both of its orders to address lesser sanctions, we believe that the court abused its discretion by denying the Rule 60(b) motion.\n \n \n 18\n Accordingly, we REVERSE the dismissal order and REMAND this case for proceedings consistent with this opinion.8\n \n \n \n 1\n This order did not contain a warning that failure to respond would result in dismissal\n \n \n 2\n It appears that the plaintiffs never complied with the requests to produce but the government did not rely on this failure in its motion to dismiss before the district court\n \n \n 3\n In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), the Eleventh Circuit adopted as precedent the decisions of the Fifth Circuit rendered prior to October 1, 1981\n \n \n 4\n Rule 41(b) states in pertinent part:\n For failure of the plaintiff to prosecute or to comply with these rules or any order of the court, a defendant may move for dismissal of an action or of any claim against him....\n \n \n 5\n This statement, of course, does not explain counsel's failure to supply those answers within the ninety days immediately after his response to the court's order granting the government's motion to compel\n \n \n 6\n In an effort to excuse his conduct, the lawyer also told the court through an affidavit that this was his first federal case and that he was inexperienced in federal court procedure. He asked the court to sanction him personally as an alternative to dismissing the action\n \n \n 7\n We do not in any way condone the behavior of the plaintiffs or their attorney. We simply hold that this conduct did not justify the harsh remedy of dismissal in light of the peculiar facts of this case and the district court's failure to consider lesser sanctions\n \n \n 8\n The district court is, of course, free to sanction the plaintiffs or their lawyer for their conduct in this case. We hold only that the court's failure to vacate its dismissal order constituted an abuse of discretion\n \n \n ", "ocr": false, "opinion_id": 462738 } ]	Eleventh Circuit	Court of Appeals for the Eleventh Circuit	F	USA, Federal
1,935,546	M.J. Kelly, P.J., and J.H. Gillis and R.M. Maher	1977-04-05	false	people-v-mcclain	McClain	People v. McClain	PEOPLE v. McCLAIN	Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Research, Training & Appeals, and Arthur N. Bishop, Assistant Prosecuting Attorney, for the people., Lawrence S. Strauss, for defendant on appeal.	null	null	null	null	null	null	null	Submitted February 11, 1977, at Detroit.	null	null	7	Published	null	<parties id="b98-4"> PEOPLE v McCLAIN </parties><otherdate id="AU0N"> Submitted February 11, 1977, at Detroit. </otherdate><docketnumber id="AXf"> (Docket No. 28551.) </docketnumber><decisiondate id="AYD"> Decided April 5, 1977. </decisiondate><br><attorneys id="b98-9"> <em> Frank J. Kelley, </em> Attorney General, <em> Robert A. Derengoski, </em> Solicitor General, <em> William L. Cahalan, </em> Prosecuting Attorney, <em> Edward R. Wilson, </em> Research, Training & Appeals, and <em> Arthur N. Bishop, </em> Assistant Prosecuting Attorney, for the people. </attorneys><br><attorneys id="b98-10"> <em> Lawrence S. Strauss, </em> for defendant on appeal. </attorneys><br><judges id="b99-4"> <span citation-index="1" class="star-pagination" label="85"> *85 </span> Before: M. J. Kelly, P. J., and J. H. Gillis and R. M. Maher, JJ. </judges>	[ "264 N.W.2d 1", "81 Mich. App. 84" ]	[ { "author_str": "Per Curiam", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n81 Mich. App. 84 (1977)\n264 N.W.2d 1\nPEOPLE\nv.\nMcCLAIN\nDocket No. 28551.\nMichigan Court of Appeals.\nDecided April 5, 1977.\nFrank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Research, Training & Appeals, and Arthur N. Bishop, Assistant Prosecuting Attorney, for the people.\nLawrence S. Strauss, for defendant on appeal.\n*85 Before: M.J. KELLY, P.J., and J.H. GILLIS and R.M. MAHER, JJ.\nPER CURIAM.\nDefendant, charged with first-degree murder, MCLA 750.316; MSA 28.548, pled guilty on January 22, 1976, before the late Judge Donald S. Leonard to the offense of second-degree murder, MCLA 750.317; MSA 28.549, pursuant to a plea bargain. On February 6, 1976, defendant was brought before Judge Clarence Laster for sentence. Defendant was advised that Judge Leonard was ill and that Judge Laster was going to pronounce sentence. Defendant and his counsel then asked that defendant be allowed to withdraw his plea of guilty and proceed to trial. It is rather obvious from a reading of the transcript that defendant and his counsel were displeased with the fact that defendant was not going to be sentenced by Judge Leonard whom they considered to be a lenient sentencer. Defendant then went on to explain to the court that the only reason that he pled guilty was because of the influence of his counsel; that he did not commit the crime; and that he wanted the police department to investigate the crime and \"see who did it\". The trial court declined to allow defendant to withdraw the plea and proceeded to sentence him.\nNo authority need be cited for the proposition that the trial court should construe with great liberality the request of the defendant to withdraw his plea prior to sentence when the defendant advises the court that he is not guilty. It was an abuse of discretion on the part of the trial court to refuse the withdrawal of this plea.\nReversed and remanded for trial on the original charge of first-degree murder.\n", "ocr": false, "opinion_id": 1935546 } ]	Michigan Court of Appeals	Michigan Court of Appeals	SA	Michigan, MI
2,127,986	Robert H. Hall	1988-06-13	false	national-broadcasting-co-inc-v-cleland	Cleland	National Broadcasting Co., Inc. v. Cleland	NATIONAL BROADCASTING COMPANY, INC., Et Al., Plaintiffs, v. Max CLELAND, in His Official Capacities as Secretary of State of the State of Georgia and Chairman of the State Election Board, Et Al., Defendants	Matthewa Henry Patton, Judith Ann Powell, Kilpatrick & Cody, Atlanta, Ga., for plaintiffs., Floyd Abrams, Susan Buckley, Cahill Gordon & Reindel, New York City, for defendants.	null	null	null	null	null	null	null	null	null	null	11	Published	null	<parties id="b1262-12"> NATIONAL BROADCASTING COMPANY, INC., et al., Plaintiffs, v. Max CLELAND, in his official capacities as Secretary of State of the State of Georgia and Chairman of the State Election Board, et al., Defendants. </parties><br><docketnumber id="b1262-15"> No. 1:88-CV-320-RHH. </docketnumber><br><court id="b1262-16"> United States District Court, N.D. Georgia, Atlanta Division. </court><br><decisiondate id="b1262-19"> June 13, 1988. </decisiondate><br><attorneys id="b1263-23"> <span citation-index="1" class="star-pagination" label="1205"> 1205 </span> Matthewa Henry Patton, Judith Ann Powell, Kilpatrick & Cody, Atlanta, Ga., for plaintiffs. </attorneys><br><attorneys id="b1264-3"> <span citation-index="1" class="star-pagination" label="1206"> 1206 </span> Floyd Abrams, Susan Buckley, Cahill Gordon & Reindel, New York City, for defendants. </attorneys>	[ "697 F. Supp. 1204" ]	[ { "author_str": "Hall", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 1335, "opinion_text": "\n697 F. Supp. 1204 (1988)\nNATIONAL BROADCASTING COMPANY, INC., et al., Plaintiffs,\nv.\nMax CLELAND, in his official capacities as Secretary of State of the State of Georgia and Chairman of the State Election Board, et al., Defendants.\nNo. 1:88-CV-320-RHH.\nUnited States District Court, N.D. Georgia, Atlanta Division.\nJune 13, 1988.\n1205 Matthewa Henry Patton, Judith Ann Powell, Kilpatrick & Cody, Atlanta, Ga., for plaintiffs.\n1206 Floyd Abrams, Susan Buckley, Cahill Gordon & Reindel, New York City, for defendants.\n\nORDER\nROBERT H. HALL, District Judge.\nThis is an action brought by plaintiffs National Broadcasting Company, Inc. (\"NBC\"), CBS Inc. (\"CBS\") and American Broadcasting Companies, Inc. (\"ABC\") challenging the constitutionality of Ga.Off'l Code Ann. § 21-2-414(a). That section of the Georgia Code makes it a misdemeanor punishable by imprisonment of up to one year or a fine of up to $1,000 or both for any person to \"conduct any exit poll or public opinion poll with voters on any primary or election day within 250 feet of any polling place or of the outer edge of any building within which such polling place is established whichever distance is greater.\" The case is currently before the court on plaintiffs' motion to certify the class of defendants and on crossmotions for summary judgment by each of the parties.\n\nFACTS\n\nA. Parties\n\nPlaintiffs NBC, CBS Inc. and ABC each operate a national network and own radio and television stations. The plaintiffs are engaged in the gathering of news, the production of new programming and the transmission of new programming to their affiliated broadcast stations in the State of Georgia and throughout the country.\nDefendant Max Cleland is Secretary of State of Georgia. As Secretary of State, Cleland is the chief elections officer of the State of Georgia. As Secretary of State, Cleland is also the chairman of the State Election Board. The State Election Board is charged with the duty to supervise elections conducted in the State of Georgia. Cleland is named in this litigation in his official capacities as Secretary of State and Chairman of the State Election Board.\nDefendants Benson Ham, Oscar Persons, Bernard Taylor and Roger F. Kahn are members of the State Election Board and are named in this litigation in their official capacities as members of the State Election Board. As members of the State Election Board, defendants Cleland, Ham, Persons, Taylor and Kahn are charged with the duty to supervise the conduct of elections in Georgia.\nDefendants Jesse Spikes, Francis O'Callahan, and Terry Moshier are members of the Fulton County Board of Elections and Registration and are named in this litigation in their official capacities as members of the Fulton County Board. As provided by law, the Fulton County Board acts as the Superintendent of Elections for Fulton County and is charged with the duty to supervise the conduct of primaries and elections throughout Fulton County, to issue rules, regulations and instructions for the guidance of poll officers, and to instruct poll officers in their duties.\n\nB. Procedural History\n\nPlaintiffs brought this action on February 17, 1988 and on the same day moved this court for an order preliminarily enjoining defendants from enforcing the challenged statute on \"Super Tuesday,\" the Georgia primary election day, held March 8, 1988. On February 29, 1988, this court held a hearing on plaintiffs' motion from a preliminary injunction. On March 1, 1988, the court granted plaintiffs' motion and enjoined the enforcement of Ga.Off'l Code Ann. § 21-2-414(a) beyond 25 feet of the exit of any building in which a polling place is located. As a result, plaintiffs were permitted to conduct exit polls of voters in Georgia during \"Super Tuesday\" and reported the information obtained from these polls to the public. As suggested by the court at the conclusion of the hearing, the parties have filed crossmotions for summary judgment on the issue of permanent relief and have stipulated that for purposes of this litigation the facts are as presented at the February 29 hearing.\n\nC. Georgia Law Regarding the \"Polling Place\"\n\nThe defendants contend that the State of Georgia has a significant interest in maintaining the sanctity and decorum of the polling place and in encouraging the exercise 1207 of the elective franchise. The Constitution of the State of Georgia of 1983, Art. II, § 1 ¶ 1, guarantees election by \"secret ballot.\" This guarantee was added specifically for the purpose of maintaining the sanctity of the polling place by preventing any possible influence on the voter. Proceeding of the Select Committee on Constitutional Revision, Subcommittee on Elective Franchise Article, at 21-22; Proposed Revision of Article II as Recommended by Committee to Revise Article II, September 29, 1977.\nThe Supreme Court of Georgia has also espoused this interest. As the Supreme Court stated in Stiles v. Earnest, 252 Ga. 260, 312 S.E.2d 337 (1984) (invalidating a referendum where citizens, not election officials, were allowed to \"check off\" voters from a voter list within 250 feet of the poll):\nThere is sanctity to elections under our system of self-government, wherein the will of the people freely voiced and fairly polled is the supreme law, and that sanctity must be preserved from all assault, witting or no.\n252 Ga. at 262, 312 S.E.2d 337.\nThis concern for maintaining the sanctity of the polling place and encouraging citizens to vote is expressed in Article IX of the Georgia Election Code, Ga.Off'l Code Ann. §§ 21-2-400-414. This article reflects over a half century of state attention to this area. See, e.g., Ga.Laws 1922, pp. 97, et seq. The concern was reflected as early as 1922 in a law entitled \"An act to provide for a secret and private ballot in all elections held in this State; to make it the duty of certain officials to provide rooms, booths or enclosures, at certain polling places, and to protect the secrecy of and the purity of the ballot ...\" Ga.Laws 1922 at 97. This 1922 law was the first to proscribe attempts to influence or interfere with any voter or to engage in disorderly conduct near or at any voting place. Ga. Laws at 97, 103. The law was later amended in 1956 to prohibit, for counties of a certain size, campaigning within 150 feet of any voting place. Ga.Laws 1956 at 333. In 1961, the law was given broader application, preventing certain campaign activities within 250 feet of the voting place in any county which could be extended to a greater distance by local legislation. Ga.Laws 1961 at 557.\nA codification of the Georgia election laws first occurred in 1964. Ga.Laws 1964, ex. sess., at 26, et seq. The immediate statutory forerunner of Ga.Off'l Code Ann. § 21-2-414(a) is found at Code Section 34-1307. Ga.Laws 1964, ex. sess., at 26, 130. This Code section prohibits campaign activities within 250 feet of the polling place, as does present law. The recommendation of the election laws study committee on this section was for a 500 foot prohibition. Election Laws Study Committee, 1963: Proposed Election Code (Part II) at 127. A 250 foot limitation was finally settled upon. Transcript of the Seminar Concerning the Georgia Election Code Conducted by the State Election Board, August 6-7, 1964 at 1-10, 117-120.\nThus, since the adoption of the 1964 Code, the interest of the State of Georgia in maintaining the sanctity and decorum of the polls has been reflected by a 250 foot zone in which certain activities are restricted.\nDuring its 1985 regular session, the Georgia General Assembly passed and the Hon. Joe Frank Harris, Governor of the State of Georgia, signed into law Act No. 527 amending Ga.Off'l Code Ann. § 21-2-414. As amended § 21-2-414 provides in its entirety:\n(a) No person shall solicit votes in any manner or by any means or method, nor shall any person distribute any campaign literature, newspaper, booklet, pamphlet, card, sign, or any other written or printed matter of any kind nor shall any person conduct any exit poll or public opinion poll with voters on any primary or election day within 250 feet of any polling place or of the outer edge of any building within which such polling place is established, whichever distance is greater.\n(b) No person shall solicit signatures for any petition on any primary or election day within 250 feet of any polling place 1208 or of the outer edge of any building within which such polling place is established, whichever distance is greater.\n(c) This Code section shall not be construed to prohibit a poll officer from distributing materials, as required by law, which are necessary for the purpose of instructing electors or from distributing materials prepared by the Secretary of State which are designed solely for the purpose of encouraging voter participation in the election being conducted.\n(d) Any person who violates this Code section shall be guilty of a misdemeanor.\n(e) This Code section shall not apply to conduct occurring wholly within any privately owned residence, privately owned business, or privately owned building which is not being used as a polling place.\nGa.Off'l Code Ann. § 21-2-414.[1]\n\nD. Evidence Presented at the Hearing\n\nThe State contends that this statute was enacted in reaction to several complaints by voters after the 1984 national election. The Office of Secretary of State received complaints from voters and election officials about the conduct of exit polls. In support, the State cited testimony given at the hearing on the plaintiffs' motion for preliminary injunction held on February 29, 1988. The common thread in all the testimony by the State officials was that the legislature's purpose in enacting the 250-foot ban on exit polls and public opinion polls was to provide a \"safe haven\" within which voters could vote without interference. The only justification raised for maintaining a 250-foot ban as opposed to some other distance was that other Georgia \"poll conduct\" statutes precluding other activities on primary or election days had previously employed the 250-foot restriction and the State had consistently sought to create a uniform 250-foot \"safe haven\".\nAs regards the specific complaints that provided the impetus to pass the statute, Thomas E. Lawrence, member of the Georgia House of Representatives, testified that of his experience with a \"very aggressive lady\" who approached him \"right in the area where the ballots were taking place\" and attempted to conduct an oral exit poll. Tr. at 86-93. This experience led him to support the Bill.\nFormer Representative Claude Bray, Chairman for ten years of the House Governmental Affairs Committee, testified that he was contacted by Frances Duncan, Director of the State Elections Division of the Secretary of State's Office, who told him that voters were concerned about exit polling because as they left the polls they would be stopped and interviewed. In representative Bray's opinion, these voters felt this to be an invasion of privacy and that some felt they were obligated to answer and were intimidated. Tr. at 115-119.\nMs. Joy Erlene Clarke, member of the DeKalb County Board of Registration and Elections, testified that after voting in the 1984 primary she was confronted by an exit pollster sitting at a table in the hallway just adjacent to the polling place itself. Tr. at 132. Ms. Clarke testified that the pollster's table blocked most of the hallway and each voter had to pass by the table in order to exit the hallway and then exit the building. Id.\nMs. Norma Lyons, Election Supervisor for DeKalb County, testified of voters complaining that the exit poll was an invasion of their privacy and that they perceived exit polling as a form of campaigning. Tr. at 136-137. Additionally, Katherine Gibbs, former Elections Superintendent for Clayton County, testified that during the 1980 general election she received voter complaints from one precinct that \"a candidate's name was being tossed around and that could influence a voter in some way.\" Tr. at 143. She explained that she was concerned that if another voter heard a candidate's name mentioned, the voter might perceive such as a form of electioneering. Id.\nLastly, Frances Duncan testified that she had received numerous complaints about exit polls during both the 1984 and 1986 1209 elections. Tr. at 176-179. She echoed the previous State officials in their concern that the traditional 250-foot zone be maintained, testifying essentially that the 250-foot zone already existed through the function of other statutes and that § 21-2-414(a) merely added another evil to the list of activities precluded by the preexisting statutory scheme. The defendants produced no testimony that less restrictive alternatives were considered or that any official raised the concern that such a ban might impinge on First Amendment rights.\nPlaintiffs NBC, CBS and ABC have engaged in journalistic activities, including the conduct of exit polls, within 250 feet of polling places in numerous states throughout the country during primary and general elections. The general term \"exit poll\" refers to the collecting of data from a random sample of voters at a sample of polling places on primary and general election days. The term is not defined in the statute. Defendants essentially do not dispute this characterization.[2]\nIn conducting exit polls, plaintiffs' exit pollsters approach voters after they have voted and ask them to complete a short anonymous questionnaire. The questionnaire asks voters for their opinions on issues of the day and how they voted. In addition, the questionnaire requests demographic information. Completing a questionnaire takes only a few minutes.\nPlaintiffs use the results of exit polls to analyze how and why people vote, to identify and comment upon social and political trends and to report on the results of elections on election night and thereafter. Warren Mitofsky, Director of the Election and Survey Unit for CBS News, testified that CBS prepares written analyses after each election summarizing what was learned from that election; those materials are then distributed to academics and journalists. Tr. at 42-43. The information gathered from exit polls is also used by elected officials in their study of voting trends and issues.\nDr. Everett C. Ladd, Professor of Political Science and Director of the Institute for Social Inquiry at the University of Connecticut, testified that as a result of the extensive nature of the information available because of exit polling, exit polls have become a valued source of election data among political writers and scholars. Tr. at 76-77. He further testified that estimates of how various groups of Americans voted, and the policy judgments underlying their vote choices, are more reliably made by exit polls than hypothetical future choices or responses given after the voter has been subject to the influence of voting results and other influences. Id. Defendants produced some evidence that the more lofty claims regarding exit polling were \"overstated\", but plaintiffs produced convincing evidence that telephone polls or later contacts do not offer comparable alternatives to exit polling. Tr. at 40-42, 160.[3] Estimates of how various groups of Americans voted, and the policy judgments underlying their voting choices, are made with unique reliability by exit polls in part because exit polls report the preferences of voters before the voter is subject to outside influences. Tr. 40-41; 63-64; 76-77.\nExit polls provide accurate data about voter behavior because of the near certainty that the persons interviewed have actually voted. Plaintiffs produced credible evidence that the greater the distance from the polling place that the reporter is required to stand, the less reliable the information gathered. Plaintiffs' experts explained that as a polling reporter moves farther away from the polling place, the likelihood of a voter getting into his or her car and driving away, or of melding into a crowd of non-voters increases making it harder to differentiate between voters and 1210 non-voters. Thus, as the distance increases, the statistical reliability of the sample decreases because it becomes impossible to interview voters in the scientifically selected, random pattern; e.g., every voter, every other voter, every third voter, etc.\nRelying on the expert testimony of Mr. Mitofsky, plaintiffs contend that the 250-foot limitation contained in § 21-2-414(a) prohibits plaintiffs from effectively conducting exit polls in the State of Georgia. Tr. at 31-35. Defendants counter that Mr. Mitofsky admitted that it is possible to conduct exit polls on private property and comply with the Georgia distance limit. Tr. at 54. Mr. Mitofsky actually testified on cross-examination that because the 250 foot limitation does not apply to private property, see § 21-2-414(e), an exit interview could legally be conducted at such a location. Tr. at 52. Defendants' witness, Dr. Hutcheson, admitted that while it may be possible to conduct an exit poll at that distance, it is \"very difficult\". Tr. at 162-163.\nTo conduct exit polls, each of the plaintiffs assign at least one polling reporter to each of the polling places randomly selected for the polls. Polling reporters are clearly identified because they wear sashes, badges, or the like. Plaintiffs' polling reporters are instructed to be courteous and businesslike and not to interfere with the elections process in any way. Because the sample precincts are randomly chosen, it is very unusual for more than one reporter to be at the same precinct at the same time.\n\nDISCUSSION\n\nA. Merits\n\nThe defendants assert, and the court accepts, that the purpose of Code § 21-2-414(a) is \"in maintaining the sanctity and decorum of the polling place and in encouraging the exercise of the elective franchise.\"\nThe parties in there Statement of Facts Not in Dispute, dispute the meaning of the term \"exit poll\" as used in the statute. The terms \"exit poll\" and \"exit opinion poll\" are not defined in the statute. Plaintiffs produced testimony that the term \"exit poll\" refers to the collecting of data from a random sample of voters after they have voted at a random sample of voting places on both primary and general election days. Plaintiffs' Ex. 4 at ¶ 4. The State produced testimony that the term includes intercept surveys of persons exiting any activity. Tr. at 147-148, 152. The court finds that plaintiffs' definition is that relevant to the interpretation of the statute.\nPlaintiffs contend that section 21-2-414(a) restricts, and indeed criminalizes, plaintiffs' ability to conduct exit polls with individuals in Georgia who have voted and to ask orally or by means of a questionnaire about issues of political import. Although defendants argue that the statute does not involve First Amendment protected activity, the court finds that because it restricts the freedom to speak about elections, government and politics, the statute strikes at the very core of the First Amendment. \"[T]here is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs.\" Mills v. Alabama, 384 U.S. 214, 218, 86 S. Ct. 1434, 1437, 16 L. Ed. 2d 484 (1966), quoted in CBS Inc. v. Smith, 681 F. Supp. 794, 802 (S.D. Fla.1988). See also Leonard v. City of Columbus, 705 F.2d 1299, 1304 (11th Cir. 1983), cert. denied, 468 U.S. 1204, 104 S. Ct. 3571, 82 L. Ed. 2d 870 (1984) (\"[C]ertain types of speech traditionally are accorded greater protection in our society by virtue of the fact that the speech goes to the heart of our democratic processes.\")\nAs the Ninth Circuit found in striking down a statute similar to the one at issue in this case, The media plaintiffs' exit polling constitutes speech protected by the First Amendment both because the information gathered and disseminated by the poll is speech and because the process of obtaining the information requires a short but significant discussion between pollster and voter. Daily Herald v. Munro, 838 F.2d 380, 384 (9th Cir.1988); CBS Inc. v. Smith, at 802; Journal Broadcasting, Inc. v. Logsdon, No. 99-Civ.-0147 (W.D.Ky. March 8, 1988) (temporarily restraining election officials from enforcing Kentucky's 1211 electioneering statute to prohibit exit polling; holding that to construe the statute \"in such a way as to prohibit all exit polling would violate the first amendment rights\" of plaintiff-broadcaster). See also Clean-Up '84 v. Heinrich, 759 F.2d 1511, 1513 (11th Cir.1985) (in a challenge to a Florida statute prohibiting solicitation of signatures on petitions within 100 yards of a polling place on election day, the court held that \"asking a voter to sign a petition\" is protected \"speech\" and \"gathering at the polls to solicit signatures\" is protected association.)\nThe court rejects defendants argument that because the inquiries are achieved by the handing out of a written questionnaire, rather than through oral interviews, the plaintiffs' exit polling constitutes unprotected \"conduct\". The physical method of collection utilized by the plaintiffs in this case does not open otherwise protected activity to restriction by the State.\n\n1. Content-Based Restriction\nPlaintiffs argue that section 21-2-414(a) is a \"content-based\" restriction on speech. They contend that the statute limits only the conduct of exit polls and public opinion polls without limiting other expressive and non-expressive activities at or near the polling place. Defendants in response argue that the statute applies even-handedly to the press and public alike. The defendants also argue that there is no restriction on certain subjects; the restrictions apply whether the polling inquiry concerns demographics, voting patterns, sexual preference, or any other subject matter. The court however holds that the statute is \"content-based\" because it regulates a specific subject matter, the discussion of voting, and a certain category of speakers, exit pollsters. Daily Herald 838 F.2d at 385; see also Consolidated Edison Co. of New York v. Public Service Commission, 447 U.S. 530, 537, 100 S. Ct. 2326, 2333, 65 L. Ed. 2d 319 (1980); Widmar v. Vincent, 454 U.S. 263, 267-70, 102 S. Ct. 269, 273-75, 70 L. Ed. 2d 440 (1981).[4]\nRegulations which restrain speech on the basis of its content presumptively violate the First Amendment. Daily Herald 838 F.2d at 385; City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46-47, 106 S. Ct. 925, 928-29, 89 L. Ed. 2d 29 (1986); Carey v. Brown, 447 U.S. 455, 462-63 n. 7, 100 S. Ct. 2286, 2291-92 n. 7, 65 L. Ed. 2d 263 (1980); Police Department v. Mosley, 408 U.S. 92, 95, 98-99, 92 S. Ct. 2286, 2289, 2291-92, 33 L. Ed. 2d 212 (1972). Such a regulation may be held valid only if it is narrowly tailored to accomplish a compelling government interest. Daily Herald supra; Consolidated Edison Co., 447 U.S. at 540, 100 S. Ct. at 2334.\nThe court finds that the State's espoused interest in maintaining the sanctity and decorum of the polls and in encouraging the use of the franchise is a compelling one. However, section 21-2-414(a) is not narrowly tailored to promote this interest. Although the evidence at the preliminary injunction hearing indicated that the 250-foot ban on exit polling was enacted to preserve peace and order around the polling place in order not to discourage people from voting, the current statute proscribes all exit polling no matter how unobtrusive and non-disruptive.\nThe State argues that it prohibited all exit polling because exit polling intrinsically invades the privacy of voters and thus disturbs the sanctity and decorum of the polling place. The evidence at the hearing demonstrated to the contrary; however, that the statute was enacted in response to particular complaints about certain disruptive behavior by exit pollsters in and around the polling place and adjacent to the entrance and exit doors of the building within which the polling place was located.[5] The State produced no first-hand 1212 evidence that any voter had ever decided not to vote because of the existence of exit polls, or that such a result was in any way a real danger. Thus, the evidence produced by the State showed that exit polling was not inherently disruptive or obtrusive beyond the curtilage of the building that houses the polling place.\nTo the extent that the State's evidence showed that the statute was enacted so that voters not be \"bothered\" by the orderly, non-disruptive taking of an exit poll, many pronouncements by the Supreme Court indicate that such a justification may not constitutionally serve as the basis for a statute. In Boos v. Barry, ___ U.S. ___, ___, 108 S. Ct. 1157, 1163, 99 L. Ed. 2d 333 (1988) the Court recently held that \"in public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide `adequate \"breathing space\" to the freedoms protected by the First Amendment.'\" (quoting Hustler Magazine v. Falwell, ___ U.S. ___, 108 S. Ct. 876, 882, 99 L. Ed. 2d 41 (1988)). In Erznoznik v. City of Jacksonville, 422 U.S. 205, 210, 95 S. Ct. 2268, 2273, 45 L. Ed. 2d 125 (1975) the Court stated that \"the Constitution does not permit government to decide which types of otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer.\" See also Cohen v. California, 403 U.S. 15, 21, 91 S. Ct. 1780, 1786, 29 L. Ed. 2d 284 (1971) (\"[T]he mere presumed presence of unwitting listeners or viewers does not serve automatically to justify curtailing all speech capable of giving offense.\")\nAdditionally, plaintiffs have demonstrated that section 21-2-414(a) is duplicative of several Georgia statutes enacted precisely to preserve the sanctity of the polling place. Less restrictive means already available to the State include Code § 21-2-413(d) which prohibits \"electioneering\" within the polling place. Code § 21-2-413(e) restricts access to the \"enclosed space\" inside the building housing the polling place to voters and authorized officials. Indeed, numerous other statutory provisions ensure peace, order, and decorum of the polls. See Ga.Off'l Code Ann. §§ 21-1-1 (campaign posters); 21-2-408 (activities of poll watchers); 21-2-566 (interference with poll officer or election); 21-2-567 (intimidation of voters); 21-2-568 (interference with voting process); 21-2-569 (interference with poll officer); 21-2-570 (buying/selling votes); 21-2-579 (fraudulent pre-voting display of intended vote or ballot); and 21-2-597 (intentional interference with others' election duties). See Daily Herald, 838 F.2d at 385.\nTo the extent that the evidence showed that the conducting of past exit polls may have disrupted administration of the polling place, the disturbances mentioned in the record would have been prohibited by enforcement of these other Georgia statutory provisions. For example, the testimony of an \"aggressive\" women asking questions a few steps away from the voting booth is proscribed by § 21-2-413(e) (proscribing activities within the polling place) as the witness, Thomas E. Lawrence, Jr., a member of the Georgia House of Representatives, admitted.[6]\nLastly, the evidence showed that the State did not consider other effective, less restrictive alternatives. For example, regarding the State's concern of confusion between the exit pollsters and election officials, the State might have required more explicit definition of the identities of exit pollsters. Likewise, with regard to the concern that exit polling discourages exercise 1213 of the elective franchise, the State might inform voters that they need not answer some or all of an interviewer's questions. More simply, the State might have reduced the size of the restricted area consonant with the complaints it received. It could have required separate entrances and exits and required exit pollsters to stand outside the exit area.[7] Thus, the court finds that the statute is not narrowly-tailored to accomplish the permissible goal of maintaining the sanctity and decorum of the polling place and encouraging the elective franchise.\n\n2. Overbreadth\nSomewhat related to plaintiffs' contention that the statute is not narrowly-tailored to accomplish its goal and that less restrictive means are available, is plaintiffs' assertion that the statute is \"overbroad\". Facial invalidity on account of overbreadth exists where is seeks to prohibit such a broad range of protected activity that there is a realistic danger that the statute will significantly compromise recognized first amendment protections of parties not before the court. Clean-Up '84 v. Heinrich, 759 F.2d at 1513. Here, the statute is overbroad in that it prohibits orderly administration of non-disruptive exit polling as well as disruptive activity. See e.g., Secretary of State v. Joseph H. Munson Co., 467 U.S. 947, 967-68, 104 S. Ct. 2839, 2852-53, 81 L. Ed. 2d 786 (1984) (where \"a statute imposes a direct restriction on protected First Amendment activity, and where the defect in the statute is that the means chosen to accomplish the State's objectives are too imprecise, so that in all its applications the statute creates an unnecessary risk of chilling free speech, the statute is properly subject to facial attack.\")\n\n3. Saxbe and Pell\n\nThe State, in a variation of its argument that the activity of exit polling does not constitute protected speech, contends that this is an \"access\" case implicating no First Amendment interest. In support, the State cites the cases of Pell v. Procunier, 417 U.S. 817, 94 S. Ct. 2800, 41 L. Ed. 2d 495 (1974) and Saxbe v. Washington Post Co., 417 U.S. 843, 94 S. Ct. 2811, 41 L. Ed. 2d 514 (1974). Saxbe and Pell involved suits by journalists and inmates challenging a flat ban on interviews with inmates while in prison. These cases are often cited for the \"hornbook\" proposition that the press' right to access extends no further than that of the general public. More accurately, these cases stand for the proposition that the Constitution imposes no affirmative duty upon government to make available to journalists sources of information not available to members of the public generally. See Pell, 417 U.S. at 834-35, 94 S. Ct. at 2810-11; Saxbe, 417 U.S. at 850, 94 S. Ct. at 2815.\nThe court believes that because, as explained above, the statute at issue here targets one form of speech for prohibition, this case does not fall within the doctrinal category of \"access\" cases.[8] Nevertheless, when viewed even under the broadest reading of Saxbe and Pell, access in this case is not denied to all as in the prison context. It is available to all but a few exit pollsters. Under the statute, journalists may enter the 250-foot zone, take pictures and even interview willing voters so long as no poll is taken. Tr. at 186.[9] Discussions 1214 between voters or between voters and non-voters may also take places as long as they do not constitute campaigning. Thus, the media plaintiffs do not seek \"special access to information not shared by members of the public generally.\" Pell 417 U.S. at 834, 94 S. Ct. at 2810.\nMoreover, the Supreme Court has indicated that outside the limited context of prisoner interviews, the State's ability to interfere with newsgathering is severely limited. In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980), in reversing a courtroom closing by a state trial judge, the Court stated:\n\"It is not crucial whether we describe the right to attend criminal trials to hear, see and communicate observations concerning then as a `right of access,' cf. Gannett [Co., Inc. v. DePasquale,] supra [443 U.S. 368,] at 397, [99 S. Ct. 2898, at 2914, 61 L. Ed. 2d 608 (1979)] (Powell, J., concurring); Saxbe v. Washington Post Co., 417 U.S. 843, [94 S. Ct. 2811, 41 L. Ed. 2d 514] (1974); Pell v. Procunier, 417 U.S. 817, [94 S. Ct. 2800, 41 L. Ed. 2d 495] (1974), or a `right to gather information,' for we have recognized that `without some protection for seeking out the news, freedom of the press could be eviscerated.' Branzburg v. Hayes, 408 U.S. 665, 681, [92 S. Ct. 2646, 2656, 33 L. Ed. 2d 626] (1972).\"\nId. at 576, 100 S. Ct. at 2827. A footnote in that case indicates that \"Procunier and Saxbe are distinguishable in the sense that they were concerned with penal institutions which, by definition, are not `open' public places. Penal institutions do not share the long tradition of openness....\" Id. at 576 n. 11, 100 S. Ct. at 2827 n. 11. (plurality opinion by Burger, C.J.)\nIn further support, defendants cite United States v. Anderson, 799 F.2d 1438 (11th Cir.1986), which concerned the right of the press to access certain information filed in a criminal case. In that case, the court cited Branzburg for the proposition that the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public general. The Eleventh Circuit also cited Pell for this general proposition. Based on this citation, defendants argue that the Eleventh Circuit recognizes the validity of Pell beyond the prison context. Even assuming the accuracy of this characterization of Anderson, that case dealt with access to criminal discovery materials not available to the public or the press. In the case at bar, the information sought is at the core of the First Amendment's protection of political speech. As this court has already found that the statute here involves a \"content-based\" restriction of speech, the court has had no reason to analyze whether the 250-foot zone is a \"public forum\" under a \"time, place and manner\" analysis. Suffice it to say that regardless of any other statutory restrictions on activity within the 250-foot zone on election day, beyond the building containing the polling place itself, the 250-foot zone under the other Georgia \"poll conduct\" statutes does not involve the type of restricted access typical of the criminal discovery process or of a prison. Therefore, Saxbe and Pell are distinguishable from the case at bar.\nEven if the \"access\"-type analysis were applicable, the court notes that in the more analogous situation of post-trial access to juror interviews, the right to gather news cannot be restricted unless it is narrowly tailored to the purpose. In re Express-News Corp., 695 F.2d 807, 808 (5th Cir.1982). The court has already ruled that the statute cannot survive this test. In those cases involving protection of the integrity of jury involvement in the judicial process, courts have held that trial court orders preventing the media from interviewing jurors regarding their verdicts and deliberations violate the First Amendment rights of the press and of the jurors themselves. See e.g., In re Express News supra; Journal Publishing Co. v. Mecham, 1215 801 F.2d 1233 (10th Cir.1986); United States v. Sherman, 581 F.2d 1358 (9th Cir. 1978). These courts have observed, however, that the right to gather news is not absolute and that the accused's Sixth Amendment right to a fair trial must be safeguarded. Accordingly \"[t]he media must respect the decorum of the courtroom\"; and \"jurors, even after completing their duty, are entitled to privacy and to protection against harassment.\" 695 F.2d at 809-10.\n\n4. Permissible Restriction\nThe court in its March 2, 1988 order granting a preliminary injunction found that the evidence presented demonstrated that a ban on exit polling prohibiting any exit poll or public opinion poll within the interior of the building in which the \"polling place\" is located and within 25 feet of the exit of such a building, would likely satisfy even the most rigorous constitutional scrutiny. The court enjoined the function of the statute beyond this 25 foot limit.\nAt the hearing, the media plaintiffs did not dispute that the State may constitutionally limit activity inside the polling place to voting. Counsel for the plaintiffs summed up the evidence as citing no specific example of \"any alleged difficulty with exit polling or exit pollers which did not occur within the building or on the very immediate outside of the building.\" Tr. at 195. The evidence did show that exit polling inside or immediately outside the doors of the building housing the polling place could cause confusion as to the identity of election officials and had even obstructed voters from entering and leaving the building. The court finds that even when conducted in an orderly manner, the taking of an exit poll within the building housing the polling place and within 25 feet from the exit of such a building impermissibly interferes with voters' exercise of their elective franchise. In that area the State's compelling interest in preserving the sanctity and decorum of the polls and in encouraging the franchise outweighs any interest of the press and public in conducting an exit poll. Under the legal principles discussed above and the evidence produced at the hearing, the court finds that a 25-foot limit withstands constitutional scrutiny.\nThe court gives Code section 21-2-414(a) a narrowing construction and permanently enjoins the enforcement of the statute beyond 25 feet of the exit of any building in which a polling place is located. Cf. Boos v. Barry, supra ___ U.S. at ___, 108 S.Ct. at 1167. (approving a narrowing construction of a statute and reiterating the standard that employing a narrowing construction in interpreting a state statute is appropriate where such a construction is reasonable and readily apparent).\n\nB. Class Certification\n\nPlaintiffs have moved this court to certify the class of defendants. The proposed defendant class is comprised of all county Superintendents of Elections, who plaintiffs contend are responsible for ensuring that the primary and election laws are not violated. Ga.Off'l Code Ann. § 21-2-70. The county defendants, who are named by plaintiffs as the class representatives and are the subject of the motion to certify, contend that they are not vested with the responsibility to enforce this statute. The state defendants have filed a response stating the view that they take no position on the issue.[10]\nThe term Superintendent is defined by statute as the \"judge of the probate court of a county or the county board of elections if a county has such.\" Ga.Off'l Code Ann. § 21-2-2(30). A county board of elections has the powers and duties of a Superintendent. Ga.Off'l Code Ann. § 21-2-40(a). The General Assembly may also create a joint board of elections and registration. Ga.Off'l Code Ann. § 21-2-40(b).\nSuperintendents specifically have the power to appoint poll and other subordinate 1216 officers; to make rules deemed necessary to guide those running primaries and elections; and to ensure that primaries and elections are \"honestly, efficiently, and uniformly conducted.\" Ga.Off'l Code Ann. § 21-2-70(6)-(8). Under Georgia law, it is the State Election Board's duty to report election and primary law violations to the appropriate district attorney for prosecution. Ga.Off'l Code Ann. § 21-2-31(a)(5). The Board also has the power to institute legal action to see that the election laws are adhered to, and such actions are filed in the Superior Court of the county of residence of the relevant Superintendent. Ga. Off'l Code Ann. § 21-2-32.\nThe class consists of individual Superintendents, including Boards of Elections and Registration acting as Superintendents, for the 159 counties in Georgia. It is the Superintendents who supervise the election and primary process on a local level and ensure compliance with Georgia's election laws. See, e.g., Op.Att'y Gen.Ga. 82-41 (1982) (empowering probate judges, when acting as Superintendents, to issue rules barring statutorily restricted activities within 250 feet of a polling place.)\nRule 23, Fed.R.Civ.P. controls the propriety of class certification in this case. Rule 23(b) provides that an action may be maintained as a class action if four prerequisites of Rule 23(a) and any one of the requirements of Rule 23(b) are satisfied. Rule 23(a) provides that one or more members of a class may be sued as representative parties on behalf of a defendant class only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the defenses of the representative parties are typical of the defenses of the class and (4) the representative parties will fairly and adequately protect the interest for the class.\nThe defendant class consists of the Superintendents of Elections for each county in Georgia. There are 159 Superintendents of Elections dispersed throughout the state, which plaintiffs argue make joinder of all members of the class impracticable. The court believes that the size of the class satisfies the numerosity requirement of Rule 23(a)(1) as that provision has been interpreted by courts in cases involving a proposed defendant class of county sheriffs or similar state officials. See, e.g., Clean-Up '84 v. Heinrich, 582 F. Supp. 125 (M.D. Fla.1984) (certifying defendant class of Florida sheriffs in suit seeking injunctive relief enjoining enforcement of Fla.Stat. § 104.36, which banned the solicitation of voter signatures or opinions within 300 feet of polling places); Florida Businessmen For Free Enterprise v. Florida, 499 F. Supp. 346 (N.D.Fla.1980), aff'd sub nom., Florida Businessmen For Free Enterprise v. City of Hollywood, 673 F.2d 1213 (11th Cir.1982) (certifying defendant classes of 67 Florida sheriffs and state attorneys in suit seeking injunctive relief enjoining enforcement of Florida's \"Head Shop\" law); see also Brown v. Vance, 637 F.2d 272 (5th Cir.1981) (certifying defendant class of all Mississippi justices of the peace); Marcera v. Chinlund, 595 F.2d 1231 (2d Cir.1979), vacated on other grounds sub nom., Lombard v. Marcera, 442 U.S. 915, 99 S. Ct. 2833, 61 L. Ed. 2d 281 (1979) (defendant class of sheriffs of 43 counties is sufficiently large to meet numerosity requirement for class actions).\nSecondly, plaintiffs' action raises one significant question of law whether the prohibition against the conduct of exit polls or opinion polls within 250 feet of polling places in Georgia as set forth in Ga.Off'l Code Ann. § 21-2-414(a) is violative of the United States Constitution. That question is common to the entire defendant class satisfying the requirement of Rule 23(a)(2). See, e.g., Florida Businessmen, supra 499 F.Supp. at 350 n. 3 (holding that the commonality requirement was satisfied because \"[t]here is one question of law, and it is common to all members of the class.\")\nThirdly, Plaintiffs' action names the members of the Fulton County Board of Elections and Registration (\"Fulton County Board\"), acting as the Fulton County Superintendent of Elections, as the representative parties for the defendant class. The Fulton County Board, like every other county Superintendent of Elections, is charged with the enforcement of the Georgia election laws and has the non-discretionary obligation of ensuring that the election laws are upheld. Any defenses asserted *1217 by the members of the Fulton County Board as the class representatives will be typical of the defenses of the defendant class. Thus, the requirement of Rule 23(a)(3) is met. See Clean-Up '84, supra 582 F.Supp. at 127 (defendant class of sheriffs are \"nominal parties\" that cannot \"argue either for or against the validity of a state statute which by law they are sworn to enforce until or unless enjoined from doing so by lawful authority.\"); Florida Businessmen, supra 499 F.Supp. at 350 n. 3 (certifying defendant classes of sheriffs and state attorneys having the same statutory duties).\nLastly, the class representative named in plaintiffs' action is empowered with the same election law enforcement and oversight functions as every other county Superintendent of Elections in the State of Georgia. Because the Fulton County Board has the same duties and responsibilities as all other county Superintendents of Elections, the Fulton County Board, as class representative, can fairly and adequately protect the interests of the defendant class of Superintendents. As stated in Marcera v. Chinlund, supra 595 F.2d at 1239:\nRule 23(a)(4) does not require a willing representative by merely an adequate one. It will often be true that, merely by protecting his own interests, a named defendant will be protecting the class. Where, as here, the legal issues as to liability are entirely common to members of the defendant class, there is little reason to fear unfairness to absentees.\nSee also Clean-Up '84, supra 582 F.Supp. at 127 (\"all Florida sheriffs are actively in concert and participat[e] on a daily basis with defendant [class representative] Heinrich in enforcing the state's laws.\"); Kane v. Fortson, 369 F. Supp. 1342 (N.D.Ga.1873) (in suit challenging the constitutionality of sections of the Georgia elections laws, defendant members of one county board of registrars held to be adequate class representatives of all members of county boards of registrars).\nThe court now turns to whether plaintiffs' action satisfies one of the requirements of Rule 23(b). The court holds that the action is properly maintainable as a class action under Rule 23(b)(1)(A), Fed.R. Civ.P. Rule 23(b)(1)(A) requires that:\n(1) the prosecution of separate actions by or against individual members of the class would create a risk of (A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class....\nThere are 159 county Superintendents of Elections in Georgia and prosecution of separate actions against individual members of the defendant class would create a serious risk of inconsistent or varied adjudications with respect to individual members of the class and would establish incompatible standards of conduct for plaintiffs. The court believes that such a result would be at odds with the policies underlying Rule 23. See Louisell and Hazard, Pleading and Procedure: State and Federal 719 (1962) (quoted in Notes of Advisory Committee On Rules, Fed.R.Civ.P. 23). In the alternative, plaintiffs' action is properly brought as a class action under Rule 23(b)(2) in that the relief plaintiffs seek is identical as to each member of the defendant class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole. See Doss v. Long, 93 F.R.D. 112, 119 (N.D.Ga.1981) (\"[I]t is now settled that 23(b)(2) is an appropriate vehicle for injunctive relief against a class of local public officials.\") (quoting Marcera v. Chinlund, supra 595 F.2d at 1238).\n\nCONCLUSION\nIn summary, the court GRANTS plaintiffs' motion for summary judgement, DENIES defendants' motion for summary judgment and GRANTS plaintiffs' motion to certify the class. By this order, the court permanently enjoins the operation of Ga.Off'l Code Ann. § 21-2-414(a) beyond 25 feet of the exit of any building in which a \"polling place\" is located.\nSO ORDERED.\nNOTES\n[1] Code section 21-2-2 defines \"polling place\" as \"the room provided in each precinct for voting at a primary or election.\" Ga.Off'l Code Ann. § 21-2-2.\n[2] Defendants contend that their witness, Dr. John D. Hutcheson, Jr., testified that the term \"exit poll\" is susceptible to a broader definition; an intercept survey of persons exiting any activity. While technically correct, defendants' argument would not alter the definition of the term relative to an election statute.\n[3] The evidence is in agreement that the crucial information of whether a voter voted and how could not currently be as reliably obtained through a source other than an exit poll.\n[4] Enforcement of such a statute raises the real specter of requiring those government officials charged with enforcing the statute to monitor the activities of the press and public alike to determine if a \"poll\" as opposed to merely an \"interview\" or informal discussion is taking place.\n[5] The court feels that the evidence at the hearing of voters being approached by exit pollsters within the polling place itself and in the area immediately around the entry and exit doors of the building containing the polling place showed that the conduct of an exit poll could be a deterrent to voting and could be disruptive in causing confusion as to the identity of the state election officials and the exit pollsters. The court feels that the placement of an exit pollster in such close proximity to the poll or the exit and entry doors provides the voter very little opportunity to exercise his or her constitutional right to refuse to participate in the exit poll.\n[6] This discussion by the court is in no way intended to indicate that the use of these statutes to prohibit exit polling would be permissible. See Journal Broadcasting, Inc. v. Logsdon, No. 88-Civ.-0147 (W.D.Ky. March 8, 1988) (temporarily restraining election officials from enforcing Kentucky's electioneering statute to prohibit exit polling).\n[7] The court expresses no opinion about the constitutionality of the above-mentioned methods, but rather mentions these methods by way of illustrating that less restrictive alternatives exist to the 250-foot limit.\n[8] Pell by its own terms limits its applicability beyond the prison context. After evaluating the prison regulation at issue in that case in light of the ample alternatives to direct journalist-prisoner interviews, including by mail and permission to visit with family, friends, attorneys and clergy, the court stated:\n\nWe would find the availability of such alternatives unimpressive if they were submitted as justification for governmental restriction of personal communication among members of the general public.\"\n417 U.S. at 822, 94 S. Ct. at 2804.\n[9] The plain language of the statute indicates that only exit polls and public opinion polls are prohibited by its terms. At the hearing, Frances Duncan, the Director of the State Elections Division, took the untenable position that any interview was prohibited under Georgia law on the theory that an interview was a form of campaigning. Tr. at 183-85. The court finds that nothing in the statutory scheme of poll control bars basic journalistic activity within the 250-foot zone, but outside the building housing the polling place itself.\n[10] The plaintiffs and the class defendants filed a stipulation on June 9, 1988 stipulating that the court may make a determination regarding class certification based on the pleadings, briefs, and other papers already filed in this case, as well as the entire record, and that no hearing will be necessary.\n\n", "ocr": false, "opinion_id": 2127986 } ]	N.D. Georgia	District Court, N.D. Georgia	FD	Georgia, GA
2,637,669	Colbert, Edmondson, Hargrave, Kauger, Opala, Reif, Taylor, Watt, Winchester	2009-10-13	false	bank-of-oklahoma-na-v-red-arrow-marina-sales-service-inc	null	Bank of Oklahoma, N.A. v. Red Arrow Marina Sales & Service, Inc.	BANK OF OKLAHOMA, N.A., a National Association, Plaintiff/Appellant v. RED ARROW MARINA SALES & SERVICE, INC., an Oklahoma Corporation; Sullivan E. Johnson, an Individual; Brad Carson, an Individual; And Red Arrow, Inc., an Oklahoma Corporation, Defendants/Appellees	Paul DeMuro, J. Michael Medina, Frederic Dorwart, Lawyers, Tulsa, Oklahoma, for Plaintiff/Appellant., Lewis N. Carter, Doerner, Saunders, Daniel & Anderson, LLP., Tulsa, Oklahoma, for Defendants/Appellees Red Arrow Marina Sales & Service, Inc. and Sullivan E. Johnson., Jack N. Herrold, David H. Herrold, Emily M. Jones, Herrold, Herrold & Co., P.C., Tulsa, Oklahoma, for Defendants/Appellees Brad Carson and Red Arrow, Inc.1	null	null	null	null	null	null	null	null	null	null	39	Published	null	<citation id="b713-13"> 2009 OK 77 </citation><br><parties id="b713-14"> BANK OF OKLAHOMA, N.A., a National Association, Plaintiff/Appellant v. RED ARROW MARINA SALES & SERVICE, INC., an Oklahoma corporation; Sullivan E. Johnson, an individual; Brad Carson, an individual; and Red Arrow, Inc., an Oklahoma corporation, Defendants/Appellees. </parties><br><docketnumber id="b713-17"> No. 104,651. </docketnumber><court id="AseS"> Supreme Court of Oklahoma. </court><br><decisiondate id="b713-18"> Oct. 13, 2009. </decisiondate><br><attorneys id="b717-6"> <span citation-index="1" class="star-pagination" label="689"> *689 </span> Paul DeMuro, J. Michael Medina, Frederic Dorwart, Lawyers, Tulsa, Oklahoma, for Plaintiff/Appellant. </attorneys><br><attorneys id="b717-7"> Lewis N. Carter, Doerner, Saunders, Daniel & Anderson, LLP., Tulsa, Oklahoma, for Defendants/Appellees Red Arrow Marina Sales & Service, Inc. and Sullivan E. Johnson. </attorneys><br><attorneys id="b717-8"> Jack N. Herrold, David H. Herrold, Emily M. Jones, Herrold, Herrold & Co., P.C., Tulsa, Oklahoma, for Defendants/Appellees Brad Carson and Red Arrow, Inc. <a class="footnote" href="#fn1" id="fn1_ref"> 1 </a> </attorneys><div class="footnotes"><div class="footnote" id="fn1" label="1"> <a class="footnote" href="#fn1_ref"> 1 </a> <p id="b717-12"> . Identified herein are only those counsel for the parties whose names appear on the certiorari briefs. </p> </div></div>	[ "2009 OK 77", "224 P.3d 685" ]	[ { "author_str": "Opala", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 5456, "opinion_text": "\n2009 OK 77\nBANK OF OKLAHOMA, N.A., a National Association Plaintiff/Appellant\nv.\nRED ARROW MARINA SALES & SERVICE, INC., an Oklahoma corporation; SULLIVAN E. JOHNSON, an individual; BRAD CARSON, an individual; and RED ARROW, INC., an Oklahoma corporation Defendants/Appellees\nNo. 104651.\nSupreme Court of Oklahoma.\nOctober 13, 2009.\nPaul DeMuro, J. Michael Medina, Frederic Dorwart, Lawyers, Tulsa, Oklahoma, for Plaintiff/Appellant.\nLewis N. Carter, Doerner, Saunders, Daniel & Anderson, L.L.P., Tulsa, Oklahoma, for Defendants/Appellees Red Arrow Marina Sales & Service, Inc. and Sullivan E. Johnson.\nJack N. Herrold, David H. Herrold, Emily M. Jones, Herrold, Herrold & Co., P.C., Tulsa, Oklahoma, for Defendants/Appellees Brad Carson and Red Arrow, Inc.[1]\nOPALA, J.\n¶ 1 Certiorari was granted to settle the first-impression question whether a creditor who does not impose liability on a mortgage debtor for the deficiency that remains after a foreclosure sale may maintain a suit against the debtor and other parties for fraud in the inducement of the loan that is secured by mortgage. In short, we are asked to decide whether the mortgage debt's satisfaction under Oklahoma's anti-deficiency statute[2] closes for a defrauded lender all other legal avenues of recovery. We hold that it does not.\n¶ 2 The statute's protection extends only to mortgage debtors. But even for debtors this protection is not absolute. A lender's failure timely to seek imposition of deficiency liability will absolve borrowers of liability on the underlying debt, but will not free them from answering in damages for their fraudulent acts in the mortgage transaction. Though the debt's guarantor may in some instances derive some incidental benefit from the satisfaction of the underlying obligation, the anti-deficiency statute will not provide a shield against liability for anyone's fraudulent misrepresentations to a mortgage lender.\n¶ 3 The trial court, though correct in finding that the mortgagor's liability on the mortgage debt stood extinguished by plaintiff's failure to seek deficiency recovery, erred in giving summary judgment to the other defendants on the bank's remaining claims. The statutory satisfaction of the mortgage debt, standing alone, is ineffective to defeat defendants' guaranty and fraud liability. The trial court also erred in denying plaintiff's quest for postjudgment relief by reconsideration of its earlier summary judgment.\n¶ 4 The Court of Civil Appeals affirmed in part and reversed in part the trial court's decision. Although we reach here the same result as that of the Court of Civil Appeals, we vacate that court's opinion to provide precedential guidance on a question of substantive law not previously determined by this court. We also re-emphasize this court's established jurisprudence holding that the outer reach of a guarantor's obligation must be determined by the precise terms of the guaranty agreement and of the law that governs that obligation, not by resort to the separate, distinct, and totally inapplicable protections of the mortgage debtor by the shield of the anti-deficiency statute.\n\nI. ANATOMY OF THE LITIGATION\n¶ 5 Bank of Oklahoma (Bank) provided financing in 2000 for a $1,400,000 U.S. Small Business Administration loan to Red Arrow Marina Sales & Service, Inc. (Red Arrow Marina) for the purchase of a lakefront marina near Afton, Oklahoma then owned by Brad Carson (Carson) and Red Arrow, Inc. (collectively the Carson defendants). Evidenced by a promissory note, the obligation to the bank was secured by a mortgage on real property; a security agreement covering the marina's fixtures, inventory and equipment; and a guaranty for the full amount of the debt[3] given by Sullivan E. Johnson (Johnson), Red Arrow Marina's president. Neither Red Arrow Marina nor Johnson ever made a payment on the loan obligation in suit.\n¶ 6 Upon default Bank brought suit against: (1) Red Arrow Marina on the promissory note and to foreclose both the mortgage and security interest, (2) Johnson on the guaranty agreement and (3) both Red Arrow Marina and Johnson for fraud in inducing Bank to make a loan it claims it would not have made had it not been for defendants' alleged misrepresentations. Bank later amended its petition to allege fraud against the Carson defendants as well, claiming they too had conspired to mislead Bank into extending the loan.[4] The thrust of Bank's fraud claim is that the marina's sellers, Carson and Red Arrow, Inc., and the marina's buyers, Johnson and Red Arrow Marina, jointly undertook fraudulently to misrepresent the marina property's value and Johnson's ability to repay the loan. Bank claims it was thereby misled into financing what amounted to an utterly sham transaction between Carson and Johnson.\n¶ 7 The trial court gave in 2001 judgment to Bank against Red Arrow Marina and Johnson on the note and guaranty and decreed foreclosure of the mortgage and security interest to satisfy the loan obligation.[5] The court held Bank's fraud claim in abeyance pending the outcome of the foreclosure sale. The sale's occurrence was long delayed: the foreclosed marina property failed to receive any bids at seven separate sheriff's sales conducted between 2002 and 2005 until finally selling for $280,000 at a public auction in November 2005.[6] The district court confirmed the sale the following month. Although the amount realized from the sale fell far short of satisfying the full amount of the mortgaged debt, Bank did not seek judicial determination of the deficiency's[7] amount due the creditor as authorized by the terms of 12 O.S. 2001 § 686.[8]\n¶ 8 In 2006 nearly one year after the sale Bank filed a notice of renewal of the judgment obtained against Red Arrow Marina and Johnson five years earlier that decreed foreclosure of the mortgaged property.[9] All defendants moved for summary judgment, arguing that the statutory satisfaction of the mortgage debt in toto that followed, as a matter of law, Bank's failure to obtain a deficiency determination[10] absolved them of any further liability on the guaranty and fraud claims. The trial court gave summary judgment to all defendants. Plaintiff then unsuccessfully pressed the trial court for reconsideration of its summary disposition.[11] The Court of Civil Appeals, Division I, affirmed the trial court's judgment in favor of the defendant mortgagor Red Arrow Marina[12] but reversed that given for the other defendants on the remaining guaranty and fraud claims. We granted certiorari to determine and define by a precedential pronouncement the breadth of the protection afforded by Oklahoma's anti-deficiency statute.\n\nII. STANDARD OF REVIEW\n¶ 9 Summary process a special pretrial procedural track pursued with the aid of acceptable probative substitutes[13] is a search for undisputed material facts which, without resort to forensic combat, may be utilized in the judicial decision-making process.[14] A court may grant summary judgment only when neither genuine issues of material fact nor any conflicting inferences that may be drawn from uncontested facts are in dispute and the law favors the moving party's claim or liability-defeating defense as a result of which the moving party becomes entitled to judgment as a matter of law.[15] Only those evidentiary materials which eliminate from trial some or all fact issues on the merits of the claim (or of the defense) afford legitimate support for a trial court's use of summary process for a claim's adjudication, partial or total.[16]\n¶ 10 Issues in summary process stand before us for de novo review.[17] All facts and inferences tendered in a summary proceeding must be viewed in the light most favorable to the non-moving party.[18] Just as trial courts must decide whether summary judgment is proper in the first instance, so too must appellate courts undertake an independent and non-deferential de novo review when testing the legal sufficiency of all evidentiary materials proffered by the parties in their quest for or in the defense against summary relief.[19] If no material fact or inference derived from the materials stands in dispute, the movant is entitled to summary judgment if the law favors the moving party's claim or liability-defeating defense.[20]\n¶ 11 A trial court's denial of a motion for new trial here denominated erroneously as a motion for reconsideration of the judgment is reviewed for abuse of discretion.[21] Where, as here, our assessment of the trial court's exercise of discretion in denying plaintiff a new trial rests on the propriety of the earlier summary judgment, we settle the abuse-of-discretion question by a de novo review of the summary adjudication's correctness.[22] A trial court abuses its discretion when it errs with respect to a pure, unmixed question of law.[23]\n\nIII. THE COURT OF CIVIL APPEALS' OPINION AND THE PARTIES' ARGUMENTS ON CERTIORARI\n¶ 12 The Court of Civil Appeals (COCA) affirmed in part and reversed in part the judgment of the trial court. COCA held that the absence from the record of an adjudicated deficiency extinguished Red Arrow Marina's debt but that the anti-deficiency statute's provisions did not also bar Bank's claims against the remaining defendants for guaranty and fraud liability. In affirming in part the trial court's judgment COCA relied on this court's well-settled jurisprudence holding that the failure timely to obtain a deficiency amount's determination releases the mortgagor from further liability on the mortgage debt.[24] COCA next correctly evaluated the issue of Johnson's guaranty liability by looking strictly to the terms of the guaranty agreement. COCA determined that Bank's decision to forgo imposing deficiency liability on Red Arrow Marina did not eo ipso[25] discharge Johnson's separate guaranty obligation.\n¶ 13 COCA's interpretation of the anti-deficiency statute also demanded reversal of the summary judgment given by the trial court to defendants on Bank's fraud claim. COCA held that the terms of the anti-deficiency statute provide only for the satisfaction of the amount of the mortgagor's debt left outstanding after a foreclosure sale. Because a suit for fraud stemming from a separate harm with an entirely distinct measure of damages presents a wholly different claim from a suit on the mortgage debt, COCA held that plaintiff's failure to seek deficiency recovery did not operate to defeat its fraud claim.\n¶ 14 On certiorari defendants argue that COCA erred in its interpretation of both the guaranty agreement and the anti-deficiency statute.[26] All defendants assert that COCA decided the case in a way likely not in accord with previous decisions by this court. First, Johnson claims that the terms of his guaranty contract allow him to avoid his obligation through Bank's omission to seek deficiency recovery. Johnson urges a reading of the guaranty that preserves his liability-defeating defenses against enforcement of the debt based on the absence of a deficiency adjudication.\n¶ 15 Secondly, Carson and Red Arrow, Inc. assert that Bank's fraud claim is untenable sans an antecedent judicial determination of deficiency. The Carson defendants argue that the amount of deficiency provides the measure of damages for fraud. Consequently the failure to obtain a deficiency determination renders Bank's fraud damages unprovable and hence destroys its claim. The Carson defendants also urge that COCA's decision conflicts with the opinion of another division of the Court of Civil Appeals in First United Bank & Trust Co. v. Wiley.[27] According to the Carson defendants, the Wiley decision correctly construes the anti-deficiency statute to eliminate a court's power to consider any claim based on a deficiency including, as defendants argue here, a suit for fraud the damages of which are to a large extent measured by the amount of deficiency whenever a lender fails timely to obtain a deficiency adjudication. The Carson defendants' reading of Wiley, if correct, is in obvious discord with COCA's holding in this case and would also prompt a reexamination of this court's jurisprudence concerning a guarantor's continuing liability for a debt after the release of the mortgage debtor from deficiency liability.\n¶ 16 For its part, Bank argues that COCA correctly reversed the trial court's summary judgment for defendants on its guaranty and fraud claims. Bank counters Johnson's arguments by urging a broad construction of the guaranty agreement's waivers of liability-defeating defenses. Emphasizing the correctness of COCA's decision, Bank asserts that: (1) because the decision in Wiley did not involve a creditor's tort claims against a third party, no interdivisional conflict exists within the Court of Civil Appeals on the anti-deficiency statute's interpretation; (2) the anti-deficiency statute governs only the relationship between a mortgage debtor and creditor, not that between creditors, guarantors, and tortfeasors; and (3) the anti-deficiency statute does not absolve defendants of the consequences of their fraudulent acts when a mortgagee omits to impose deficiency liability on a mortgage debtor.\n\nIV. THE ANTI-DEFICIENCY STATUTE MAY NOT BE INTERPOSED AS A DEFENSE AGAINST A FRAUD CLAIM\n¶ 17 The question of first impression tendered on certiorari is whether a mortgagee's failure to seek a deficiency determination against a mortgagor ever can defeat the mortgagee's separate claim against the mortgage debtor, the guarantor or a third-party defendant for fraud in the inducement of the loan. We answer this question in the negative. No legal principle will allow the defeat of a fraud claim against any party by interposition of the mortgagee's failure timely to impose deficiency liability on the mortgagor.\n¶ 18 The anti-deficiency statute[28] addresses itself exclusively to the relationship between mortgage creditor and debtor,[29] and its protection applies to the debtor alone.[30] But the statute's protection of the mortgage debtor is not absolute. Its benefit avails to the debtor only insofar as a mortgagee may seek to recover a deficiency (rendered unreasonable as a matter of law) by the creditor's untimeliness. In such instances the provisions of § 686 will discharge a mortgagor from further liability on the mortgage debt but not on a separate fraud claim. Having achieved its well-defined aim, the statute cannot then be pressed into service as a defense against a fraud claim that seeks a separate recovery for an entirely different legal harm. To read § 686 as absolving defendants of liability for their misrepresentations is to force upon the statute a construction wholly unrelated to its limited and specific purpose. Fraud claims exist nowhere within the statute's ambit.\n¶ 19 The Oklahoma Legislature amended § 686 in 1941 to add the statute's current anti-deficiency language. Adopted in the wake of the Great Depression, the anti-deficiency statute sought to protect mortgage debtors from personal liability after foreclosure sales conducted at a time of greatly deflated land values in a depressed economy.[31] The anti-deficiency provision evolved as a direct legislative response to the plight of mortgage debtors rendered vulnerable to burdensome deficiency liability in harsh economic circumstances. A corrective measure derived from a depression-era desire to ease the burden of displaced mortgagors cannot be invoked today to absolve defendants of liability for fraud.\n¶ 20 Defendants urge that the absence of a deficiency adjudication removes the basis for measuring damages for Bank's fraud claim. Damages suffered as a natural and probable consequence of a plaintiff's reliance on a defendant's misrepresentations are an indispensable element of proving a claim of fraud.[32] In contending that Bank voluntarily surrendered its right to maintain a fraud claim by its failure to impose deficiency liability on the mortgagor, defendants mistakenly conflate the statutory satisfaction of a mortgage debt with recovery for damages in fraud. Deficiency liability and fraud damages are different remedies born of separate legal injuries, each with a distinct and independent measure of damages to satisfy the alleged harm.\n¶ 21 The amount of the deficiency does not automatically establish the proper measure of damages for Bank's fraud claim. Bank's omission to impose deficiency liability on Red Arrow Marina resulted only in the extinguishment of the recovery claim it could have obtained against its debtor in the amount of an adjudicated deficiency. The omission did not simultaneously eliminate its potentially recoverable damages in a different fraud claim because § 686 contemplates no more than the full satisfaction of the mortgage debt.\n¶ 22 Plaintiff in a fraud action does not seek satisfaction of the mortgage debt. Rather, it seeks compensation for a tortious wrong. The fraud claim stands completely apart from the mortgage debtor's now-satisfied obligation on the note. Bank's quest for fraud recovery may not now be frustrated by interposition of a statute wholly inapplicable to the satisfaction of the harm remediable only in tort.\n¶ 23 The question of Bank's damages in fraud cannot be settled merely by looking to the amount Bank could have obtained from the debtor after a deficiency determination. The trial court must instead evaluate the extent to which Bank suffered injury, if any, by making a $1,400,000 loan in reliance upon defendants' alleged misrepresentations. Upon proving all the elements necessary to establish fraud a party may recover the difference between the actual value of the property encumbered by mortgage and the security value it would have received had that value been exactly as represented.[33] On remand Bank might also press its damages in terms of the value it reasonably believed it would realize from the sale of mortgaged property had it not been for defendants' alleged misrepresentation of the mortgaged property's value.\n¶ 24 We neither opine on the merits of plaintiff's fraud claim nor speculate on the ability of defendants to marshal on remand successful liability-defeating defenses against it. The precise computation of damages and Bank's ultimate success or failure in proving them stands beyond the reach of this court's present review. We simply hold that the anti-deficiency statute does not afford a defense against Bank's fraud claim.[34]\n¶ 25 Lastly we dispense with defendants' contention that COCA's decision conflicts with that pronounced by another COCA division in First United Bank & Trust Co. v. Wiley.[35] The Carson defendants mistakenly ascribe to Wiley a meaning that strays far beyond the court's actual holding in the case. To give full effect to defendants' interpretation would also impermissibly clash with this court's extant jurisprudence holding that the satisfaction of a mortgage debt under § 686 does not eo ipso defeat a mortgagee's claim against a guarantor to recover the amount of the obligation left outstanding.[36]\n¶ 26 The plaintiff bank in Wiley, having failed timely to seek a deficiency determination, argued that the defendant mortgagor had waived his right to claim § 686's protection after he had initially neglected to raise the bank's delay as a defense against liability.[37] In accord with earlier pronouncements by this court the COCA panel in Wiley correctly held that the anti-deficiency statute is not an ordinary statute of limitations, but rather a condition upon a mortgagee's exercise of the right to obtain a deficiency determination.[38] A statute of limitations is a remedial time bar. The time bar on lodging motions for deficiency determination, which is a condition upon the exercise of a right, is a substantive-law deadline. It destroys the right rather than the remedy.\n¶ 27 A mortgage debtor can interpose the protection of § 686 at any time because compliance with the statute's time limit is an absolute prerequisite for a mortgagee's ability subsequently to obtain a valid deficiency determination. But defendants appear to urge a reading of Wiley that would eliminate a court's power to adjudicate any claim including claims against parties other than the mortgagor based in some part on a creditor's failure in timely receiving satisfaction from the mortgage debtor. From the outset defendants' argument is unavailing. Bank's fraud claim does not depend for its viability upon the existence or nonexistence of a deficiency. It is not a disingenuous attempt to recover a statutorily extinguished deficiency cloaked in a suit for fraud. It is a completely independent claim the satisfaction of which is neither based on nor measured by the deficiency left unrecovered by operation of § 686. Damages from fraud do not and need not reflexively mirror the amount of deficiency. For this reason alone defendants' reliance on Wiley is misplaced.\n¶ 28 But defendants also stretch the holding in Wiley beyond what this court's jurisprudence allows. The opinion in Wiley contains language to the effect that a mortgagee's failure to comply with § 686's requirements will eliminate a court's jurisdiction \"to consider a deficiency.\"[39] This statement is correct only insofar as it applies to extinguishing the mortgagor's debt and does not extend to the separate liability of guarantors and others whose obligation to the mortgagee stands independently of the underlying mortgage debt. Defendants may not reap the benefit of Wiley's imprecise language to suggest that claims tangentially related to the mortgage debt automatically dissolve in the absence of a timely deficiency adjudication. If the mortgagee does not timely seek deficiency adjudication against the mortgagor, the mortgagor is exonerated by the mortgagee's inaction from post-sale liability only on the mortgage debt. Between those parties, in contemplation of law, no deficiency liability may survive the sale.\n¶ 29 Because the benefits of § 686 inure exclusively to the mortgage debtor, the same principle does not apply to a mortgagee's claims against a guarantor or against defendants in a suit for fraud. This court has previously held that the satisfaction of a mortgage debt under § 686 will not eo ipso discharge a mortgagee's claim to recover the debt assumed by the guarantor.[40] The reading of Wiley pressed by defendants would permit the absence of a deficiency determination to absolve guarantors and others whose obligations to the lender exist independently of the self-contained creditor-debtor relationship and the statute that governs it, § 686.\n¶ 30 This court's prior jurisprudence will not countenance such a result. We expressly reject any interpretation of Wiley's language suggesting otherwise. Although we today reaffirm our previous statements defining § 686 not as a statute of limitations but as a condition upon the exercise of a right,[41] we limit the scope of that right to encompass only the purpose served and the party protected by the anti-deficiency statute. The proper purpose served by § 686 is to extinguish a mortgage debt in toto if its continued existence is claimed after a mortgagee fails timely to obtain a deficiency determination. The sole party protected by § 686 is the mortgage debtor insofar as the debtor stands in the capacity of a mortgagor, not as a fraud defendant.\n¶ 31 By operation of the anti-deficiency statute Bank can no longer recover a deficiency from the mortgagor. With this the statute has achieved its single purpose: the protection of the mortgage debtor from the untimely imposition of deficiency liability. But the Bank also alleges it has been injured in a way distinct from that measured by the residue of a mortgage debt left unsatisfied after a foreclosure sale. It claims it has been harmed by its reliance upon defendants' fraud, a separate and independent harm the satisfaction of which falls outside the scope of the anti-deficiency statute. A plaintiff's recovery upon a valid claim may not be frustrated by a defendant who interjects as a liability-defeating defense an incongruous statute in no way applicable to determining the remedy plaintiff invokes. We hold that the anti-deficiency statute cannot be interposed as a defense to defeat Bank's fraud claim.\n\nV. THE TERMS OF THE GUARANTY AGREEMENT AT ISSUE DO NOT BY THEMSELVES ABSOLVE THE GUARANTOR OF LIABILITY\n¶ 32 Johnson contends that the agreement's terms preclude Bank from seeking recovery on the guaranty when a deficiency is not timely sought. In effect Johnson argues that no part of the guaranty contract waives his right to raise Bank's omission as a defense against his continued liability on the debt. We disagree. The guaranty at issue contains wholesale waivers of defenses that militate strongly against ruling here that, as a matter of law, plaintiff's claim against the guarantor cannot go forward.\n¶ 33 A guaranty[42] arising from a contractual obligation distinct and separate from the principal debt is governed by statutory provisions unrelated to those of § 686.[43] Because \"the protection of § 686 applies only to [mortgage] debtors,\"[44] that statute's satisfaction of the mortgage debt cannot automatically discharge guarantors from further liability on their independent and separate guaranty obligations.[45] The question whether a guarantor's liability survives in the absence of a deficiency determination will be decided by reference to the precise terms of the guaranty itself.[46]\n¶ 34 The terms of the guaranty agreement define the specific nature of the promise exacted from the guarantor and thus determine both the scope of the guarantor's liability and the available defenses the guarantor may raise against that liability. As the specially protected beneficiaries of the anti-deficiency statute, mortgage debtors cannot contract away that statute's protection.[47] The guarantor is not so constrained. A consenting guarantor may waive the protections provided by the separate statutory scheme regulating guaranty contracts. Such waivers as may exist will be ascertained from the express terms of the agreement.\n¶ 35 The breadth of the guaranty agreement, purely contractual in nature, must be ascertained according to established principles of contract interpretation.[48] The intent of the parties at the time of the contract's formation, as expressed within the four corners of the document, controls the meaning of the written contract.[49] Intent must be discerned from the entire instrument taken as a whole.[50] Where a contract is complete in itself and, as viewed in its entirety, contains clear and explicit language leaving it free of ambiguity, its language is the only legitimate evidence of what the parties intended.[51]\n¶ 36 This court has long adhered to the principle that a guaranty agreement should be interpreted in favor of the creditor the party who has parted with property in reliance on the promise contained in the guaranty. In other words the terms of the guaranty agreement should be most closely construed against the guarantor,[52] whose collateral promise to answer for the debt of another in the event of default gives a lender the assurance needed to extend the loan. Guided by these established principles of guaranty interpretation, we determine that Johnson in fact gave a promise broad enough to waive the very defenses he now raises against liability.\n¶ 37 Though a mortgagor's and guarantor's obligations are independent of each other, a creditor's failure to seek deficiency recovery may materially affect the guarantor's continued responsibility for the debt.[53] In this case plaintiff's failure to obtain a deficiency adjudication led to the total exoneration of Red Arrow Marina from all further liability on the note, simultaneously eliminating Johnson's ability to recover from Red Arrow Marina any amount relating to the debt. But the question in this case is not whether Bank's omission impaired the guarantor's future right to recover from the debtor. There can be no dispute that it did. The pertinent question is whether by the terms of his contract Johnson relinquished his right to complain of that omission, leaving him alone responsible for the unpaid residue of the debt.[54]\n¶ 38 The terms of 15 O.S. 2001 § 338 provide that a guarantor is exonerated from liability when any act of the creditor alters the debtor's obligation or impairs the creditor's rights against the debtor without the guarantor's consent.[55] The terms of 15 O.S. 2001 § 344 state that a guarantor is not exonerated by the release of the debtor absent some intervention or omission of the creditor.[56] Bank's omission altered Red Arrow Marina's obligation, impairing both Johnson's and its own right of recovery against that debtor. The question whether Johnson consented to such omission will be resolved by reference to the unambiguous language of the contract.\n¶ 39 The guaranty contract states that Bank could \"delay or forgo enforcing any of its rights without losing or impairing any of them.\" Though not the sole waiver embodied in the contract,[57] this clause is itself sufficient to defeat defendant's proffered defense against liability. The imposition of deficiency liability on the mortgage debtor is a right inherent in the creditor's ability to recover the amount of a defaulted loan. The mortgagee's right to seek deficiency recovery is ingrained both in the foreclosure process and the statute that regulates it, § 686. By the guaranty's terms, Bank could choose to forgo that right without impairing its ability to recover from the guarantor.\n¶ 40 Because in the absence of illegality a party may freely set the outer limit of the bargain, that party will be bound by the unambiguous terms of the contract even though the result may be harsh.[58] Faced with the clear terms of the guaranty at issue, we cannot give a defendant the benefit of some other contract he in hindsight might wish he had made. We can only interpret the plain language of the contract now before us.[59] Through the express terms of the agreement Bank exacted from defendant a promise broad enough to ensure repayment even when, as here, Bank took or failed to take actions that ultimately impaired the guarantor's right of recourse against the mortgage debtor.\n¶ 41 The effect of the contract's extensive waivers precludes defendant from interposing that impairment by Bank as a defense against his present liability on the debt. Because defendant's right to this defense stands expressly waived by the unambiguously worded provisions of the contract, we need not say more about the contentions by which defendant seeks to avoid liability from the consequences of the loss of his waived rights. Accordingly we remand this cause to the trial court for determination of all issues in post-remand proceedings in a manner consistent with today's opinion.\n\nVI. ISSUES NOT URGED AS ERROR ON BANK'S APPEAL OR BY PETITION FOR CERTIORARI ARE BEYOND THIS COURT'S POWER TO REVIEW AND HENCE STAND RESOLVED AS THE SETTLED LAW OF THE CASE\n¶ 42 Plaintiff did not argue on appeal that the trial court erred in giving summary judgment to the mortgage debtor, Red Arrow Marina. As the sole recipient of the anti-deficiency statute's protection, Red Arrow Marina was exonerated from further liability on the debt when Bank declined to impose on it deficiency liability within the statutorily prescribed time period. Asserting that Red Arrow Marina had been insolvent since the time of its default in 2000, Bank likewise did not appeal from the dismissal of its fraud claim against Red Arrow Marina. An issue settled by the trial court and not urged as error on appeal becomes the settled law of the case and cannot be re-pressed on remand.[60]\n¶ 43 Because Bank did not include in its appeal the trial court's dismissal of Red Arrow Marina on any ground or claim, we do not disturb that portion of the COCA opinion dealing with the correctness of the trial court's summary judgment in favor of Red Arrow Marina. We do not comment on the legal correctness of the trial court's ruling because the issue was not pressed by appeal. We note only that plaintiff's decision not to contest the dismissal of Red Arrow Marina has achieved what the anti-deficiency statute will not: the release of the mortgage debtor from potential liability on a fraud claim.\n¶ 44 In his petition for certiorari Johnson presses for review only the portion of COCA's decision dealing with his guaranty liability. It is beyond this court's power to grant corrective relief from issues resolved by COCA but not explicitly pressed for certiorari review.[61] COCA's determination that Bank's fraud claim may proceed against Johnson is now the settled law of the case.[62] It is left undisturbed by this opinion.\n\nVII. SUMMARY\n¶ 45 Plaintiff, alleging fraud in the inducement of its loan, seeks a remedy that cannot be withheld by invocation of a statute wholly irrelevant to the satisfaction of the harm alleged. The anti-deficiency statute cannot be interposed as a defense against a claim of fraud because the statute properly serves but a single purpose: the protection of mortgage debtors from the untimely imposition of deficiency liability. The resolution of a fraud claim lies beyond its reach.\n¶ 46 The distinct obligation of a guaranty also falls outside the anti-deficiency statute's purview. The precise terms of the guaranty contract and the law governing that obligation not the anti-deficiency statute will determine the breadth of the guarantor's promise. The anti-deficiency statute's extinguishment of the mortgage debt (by lapse of time) does not confer on the guarantor any defenses beyond those the guaranty's unambiguous terms will allow.\n¶ 47 Because the anti-deficiency statute completely extinguishes one type of obligation the mortgage debt defendants in a suit brought by a lender may be tempted to claim that the statute's operation erases other liabilities as well. But the statute cannot be stretched to accommodate claims or defenses it in no way addresses. In short, defendants cannot escape liability by invoking a defense to whose benefit they are not entitled. Upon satisfaction of the mortgage debt the anti-deficiency statute had fully achieved its purpose. We now hold that it may serve no other.\n¶ 48 On certiorari granted upon defendants' petitions, the Court of Civil Appeals' opinion is vacated; the trial court's summary judgment is affirmed in part and reversed in part; and the cause is remanded for further proceedings to be consistent with today's pronouncement.\n¶ 49 EDMONDSON, C.J., TAYLOR, V.C.J., HARGRAVE, OPALA, WINCHESTER and REIF, JJ., CONCUR\n¶ 50 WATT, KAUGER and COLBERT, JJ., CONCUR IN PART AND DISSENT IN PART\nNOTES\n[1] Identified herein are only those counsel for the parties whose names appear on the certiorari briefs.\n[2] 12 O.S. 2001 § 686.\n[3] The pertinent terms of the guaranty agreement are:\n\nUNCONDITIONAL GUARANTEE [sic]\n* * \n1. GUARANTEE [sic]:\nGuarantor unconditionally guarantees payment to Lender of all amounts owing under the Note. This Guarantee [sic] remains in effect until the Note is paid in full. Guarantor must pay all amounts due under the Note when Lender makes written demand upon Guarantor. Lender is not required to seek payment from any other source before demanding payment from Guarantor.\n2. NOTE:\nThe \"Note\" is the promissory note dated May 18, 2000 in the principal amount of One Million Four Hundred Thousand and No/100 Dollars, from Borrower to Lender. It includes any assumption, renewal, substitution, or replacement of the Note, and multiple notes under a line of credit.\n * \n11. GUARANTOR ACKNOWLEDGMENT OF TERMS:\nGuarantor acknowledges that Guarantor has read and understands the significance of all terms of the Note and this Guarantee [sic], including all waivers.\n(emphasis added). Part V of this opinion discusses the guaranty's pertinent waivers.\n[4] Bank initially brought twin actions on its fraud claim, suing Red Arrow Marina and Johnson in Delaware County District Court and Carson in the United States District Court for the Northern District of Oklahoma. Bank's federal court claim was dismissed due to Bank's failure to join parties necessary to the action Red Arrow Marina, Johnson, and Red Arrow, Inc. under Rule 19, Federal Rules of Civil Procedure. Bank then amended its fraud claim in its state court action to include Carson and Red Arrow, Inc. as defendants.\n[5] The trial court's order is memorialized in a document entitled \"Order Granting Motion for Partial Summary Judgment.\" It is more properly to be regarded as a decree of foreclosure for want of payment under the terms of the mortgage agreement. A decree of foreclosure holds a defendant in default for want of payment by first determining the amount in default and then declaring the mortgage foreclosed and the property subject to sale. Neil Acquisition, L.L.C. v. Wingrod Inv. Corp., 1996 OK 125, ¶ 7, 932 P.2d 1100, 1103; Sooner Fed. Sav. & Loan Ass'n v. Okla. Cent. Credit Union, 1989 OK 170, ¶ 17 n.18, 790 P.2d 526, 530 n.18. The trial court's decree addressed only Red Arrow Marina's and Johnson's note and guaranty liability and expressly reserved for later adjudication Bank's fraud claim. In other words the trial court withheld judgment on Bank's fraud claim while resolving solely the mortgagor's liability on the note and the guarantor's liability on the guaranty through its decree of foreclosure of the property securing the defaulted loan.\n[6] The marina property was appraised by order of the district court four times between 2002 and 2005. Though initially appraised for the first foreclosure sale at a value of $1,585,000, each subsequent appraisal indicated a significant decline in the property's worth. The final appraisal, conducted in February 2005, showed the value of the property as $350,000.\n[7] A deficiency is defined as \"[t]he amount still owed when the property secured by a mortgage is sold at a foreclosure sale for less than the outstanding debt; [especially], the shortfall between the proceeds from a foreclosure sale and an amount consisting of the principal debt plus interest plus the foreclosure costs.\" Black's Law Dictionary at 455 (8th ed. 2004). A so-called \"deficiency judgment\" is defined as \"[a] judgment against a debtor for the unpaid balance of the debt if a foreclosure sale or a sale of repossessed personal property fails to yield the full amount of the debt due.\" Black's Law Dictionary at 859 (8th ed. 2004).\n[8] The terms of 12 O.S. 2001 § 686, supra note 2, provide in pertinent part:\n\nIn actions to enforce a mortgage, deed of trust, or other lien or charge, a personal judgment or judgment or judgments shall be rendered for the amount or amounts due * . Notwithstanding the above provisions no judgment shall be enforced for any residue of the debt remaining unsatisfied as prescribed by this act after the mortgaged property shall have been sold, except as herein provided. Simultaneously with the making of a motion for an order confirming the sale or in any event within ninety (90) days after the date of the sale, the party to whom such residue shall be owing may make a motion in the action for leave to enter a deficiency judgment upon notice to the party against whom such judgment is sought * . If no motion for a deficiency judgment shall be made as herein prescribed the proceeds of the sale regardless of amount shall be deemed to be in full satisfaction of the mortgage debt and no right to recover any deficiency in any action or proceeding shall exist.\n12 O.S. 2001 § 686 is known as the \"anti-deficiency statute\":\nThis is so because in mortgage foreclosure actions, when a creditor fails to seek an order determining a deficiency on the judgment within 90 days after foreclosure sale, the mortgagor's liability may be considered to have terminated by fictional satisfaction of the mortgage debt.\nFounders Bank & Trust Co. v. Upsher, 1992 OK 35, ¶ 3 n.4, 830 P.2d 1355, 1359 n.4.\n[9] The terms of 12 O.S. 2001 § 735, Oklahoma's so-called \"dormancy statute,\" provide that a judgment not executed upon within five years of the date of judgment shall become unenforceable and of no effect if, among other things, a notice of renewal of judgment is not timely filed. In this case Bank's filing of the \"notice of renewal of judgment\" served as a precautionary measure to protect the judgment entered against the debtor and guarantor in the decree of foreclosure from lapse through the passage of time.\n[10] We do not refer to the deficiency determination as a \"deficiency judgment.\" The term is a misnomer. There can be only one \"judgment\" on a single cause of action. Neil Acquisition, L.L.C. v. Wingrod Inv. Corp., supra note 5, at ¶ 8 n.6, at 1104 n.6; Founders Bank & Trust Co. v. Upsher, supra note 8, at ¶ 5 n.8, at 1360 n.8; Fed. Deposit Ins. Corp. v. Tidwell, 1991 OK 119, ¶ 2, 820 P.2d 1338, 1343 (Opala, C.J., concurring in result). In a foreclosure proceeding the single judgment is the court's determination of the amount due the creditor and its order that the encumbered property be sold to satisfy the mortgage lien. Neil, at ¶ 8 n.6, at 1104 n.6; Upsher, at ¶ 5 n.8, at 1360 n.8.\n\nThough at common law a deficiency automatically sprang into existence without judicial intervention, our modern statutory scheme \"mandates a hearing and a determination of deficiency in accordance with the statutory formula\" detailed in 12 O.S. 2001 § 686. Neil, at ¶ 9, at 1104. The deficiency is thus a creature of postjudgment process. Although a deficiency determination may have the effect of a judgment for some purposes, it is in the strict sense a postjudgment order determining a deficiency on a judgment previously rendered. Neil, at ¶ 8 n.6, at 1104 n.6; Upsher, at ¶ 5 n.8, at 1360 n.8; Tidwell, at ¶ 5, at 1341; Jones v. England, 1989 OK 142, ¶ 10, 782 P.2d 119, 121; Baker v. Martin, 1975 OK 112, ¶ 25, 538 P.2d 1048, 1051.\n[11] A \"motion for reconsideration\" is a relatively new arrival in the lexicon of Oklahoma trial practice and procedure. If timely filed it effectively functions as a motion for new trial. Halliburton Oil Producing Co. v. Grothaus, 1998 OK 110, ¶ 6 n.6, 981 P.2d 1244, 1248 n.6. Although summary judgment, which is a determination that there shall be no trial at all, is perhaps semantically inconsistent with the notion of a \"new trial,\" our statutory scheme for postjudgment relief nevertheless authorizes a \"new trial\" to arise from a reconsideration of the judgment.\n[12] Bank did not urge error in the trial court's dismissal of its claims against Red Arrow Marina. Part VI of this opinion discusses the effect of Bank's failure to include that error.\n[13] \"'Acceptable probative substitutes' are those which may be used as `evidentiary materials' in the summary process of adjudication.\" Jackson v. Okla. Mem'l Hosp., 1995 OK 112, ¶ 15 n.35, 909 P.2d 765, 773 n.35. See also Seitsinger v. Dockum Pontiac, Inc., 1995 OK 29, ¶ ¶ 16-17, 894 P.2d 1077, 1080-81; Davis v. Leitner, 1989 OK 146, ¶ 15, 782 P.2d 924, 927.\n[14] The focus in summary process is not on the facts that might be proven at trial, but rather on whether the evidentiary material in the record tendered in support of summary disposition reveals only undisputed material facts supporting but a single inference that favors the movant's quest for relief. Polymer Fabricating, Inc. v. Employers Workers' Comp. Ass'n, 1998 OK 113, ¶ 8, 980 P.2d 109, 113; Hulsey v. Mid-America Preferred Ins. Co., 1989 OK 107, ¶ 8 n.15, 777 P.2d 932, 936 n.15.\n[15] In determining the appropriateness of summary relief the court may consider, in addition to the pleadings, items such as depositions, affidavits, admissions, and answers to interrogatories, as well as other evidentiary materials which are offered in acceptable form without objection from other parties or are admitted over the challenging exception. Polymer Fabricating, Inc. v. Employers Workers' Comp. Ass'n, supra note 14, at ¶ 8, at 113. See also Seitsinger v. Dockum Pontiac, Inc., supra note 13, at ¶ ¶ 16-17, at 1080-81.\n[16] Russell v. Bd. of County Comm'rs, 1997 OK 80, ¶ 7, 952 P.2d 492, 497. See also Gray v. Holman, 1995 OK 118, ¶ 11, 909 P.2d 776, 781.\n[17] An order granting summary relief, in whole or in part, disposes solely of questions of law reviewable by a de novo standard. Brown v. Nicholson, 1997 OK 32, ¶ 5, 935 P.2d 319, 321. \"Issues of law are reviewable by a de novo standard and an appellate court claims for itself plenary independent and non-deferential authority to reexamine a trial court's legal rulings.\" Kluver v. Weatherford Hosp. Auth., 1993 OK 85, ¶ 14, 859 P.2d 1081, 1084 (citing Salve Regina Coll. v. Russell, 499 U.S. 225, 231, 111 S. Ct. 1217, 1221, 113 L. Ed. 2d 190 (1991)).\n[18] Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053.\n[19] Spirgis v. Circle K Stores, Inc., 1987 OK CIV APP 45, ¶ 10, 743 P.2d 682, 685 (approved for publication by the Oklahoma Supreme Court).\n[20] The purpose of summary process is not to deprive parties of their right to have the disputed facts of the case tried by a jury, but rather to decide the legal sufficiency of the evidentiary materials presented to determine whether a triable case is tendered. Bowman v. Presley, 2009 OK 48, ¶ 7, 212 P.3d 1210, 1216; State ex rel. Fent v. State ex rel. Okla. Water Res. Bd., 2003 OK 29, ¶ 14 n.31, 66 P.3d 432, 440 n.31; Bowers v. Wimberley, 1997 OK 24, ¶ 18, 933 P.2d 312, 316; Stuckey v. Young Exploration Co., 1978 OK 128, ¶ 15, 586 P.2d 726, 730.\n[21] Reeds v. Walker, 2006 OK 43, ¶ 9, 157 P.3d 100,106-07; Head v. McCracken, 2004 OK 84, ¶ 2, 102 P.3d 670, 673; Jones, Givens, Gotcher & Bogan, P.C. v. Berger, 2000 OK 31, ¶ 5, 46 P.3d 698, 701.\n[22] Reeds v. Walker, supra note 21, at ¶ 9, at 107; Head v. McCracken, supra note 21, at ¶ 2, at 673-74; Evers v. FSF Overlake Assocs., 2003 OK 53, ¶ 6, 77 P.3d 581, 584.\n[23] Reeds v. Walker, supra note 21, at ¶ 9, at 107; Christian v. Gray, 2003 OK 10, ¶ 43, 65 P.3d 591, 608; Jones, Givens, Gotcher & Bogan, P.C. v. Berger, supra note 21, at ¶ 5, at 701.\n[24] E.g., Riverside Nat'l Bank v. Manolakis, 1980 OK 72, ¶ 10, 613 P.2d 438, 441 (stating that \"the protection of § 686 applies only to debtors\").\n[25] \"By that very act.\" Black's Law Dictionary at 575 (8th ed. 2004).\n[26] In his petition for certiorari Johnson presses for review only the portion of COCA's decision dealing with his guaranty liability. It is beyond this court's power to grant relief from issues resolved by COCA but not explicitly pressed for certiorari review. Nealis v. Baird, 1999 OK 98, ¶ 61, 996 P.2d 438, 462.We hence leave undisturbed as the settled law of the case COCA's determination that Bank's fraud claim may proceed against Johnson and thus limit our review to the issues explicitly before us as submitted by certiorari petition: Johnson's guaranty liability and the potential fraud liability of the Carson defendants.\n[27] 2008 OK CIV APP 39, 183 P.3d 1022.\n[28] 12 O.S. 2001 § 686, supra note 2. In-text references to the statute hereinafter refer to its section number only.\n[29] \"Our anti-deficiency statute, § 686, addresses itself exclusively to the creditor/debtor relationship.\" Riverside Nat'l Bank v. Manolakis, supra note 24, at ¶ 10, at 441.\n[30] This court has unequivocally stated that \"the protection of § 686 applies only to debtors.\" Riverside Nat'l Bank v. Manolakis, supra note 24, at ¶ 10, at 441.\n[31] Riverside Nat'l Bank v. Manolakis, supra note 24, at ¶ 7, at 440; see also Founders Nat'l Bank & Trust Co. v. Upsher, supra note 8, at ¶ 3 n.4, at 1359 n.4.\n[32] LeFlore v. Reflections of Tulsa, Inc., 1985 OK 72, ¶ 31, 708 P.2d 1068, 1076; State ex rel. Southwestern Bell Tel. Co. v. Brown, 1974 OK 19, ¶ 19, 519 P.2d 491, 495; McGuigan v. Harris, 1968 OK 58, ¶ 11, 440 P.2d 680, 682; Sharp v. Keaton, 1926 OK 335, ¶ 0, 245 P. 852 (First Syllabus by the Court).\n[33] LeFlore v. Reflections of Tulsa, Inc., supra note 32, at ¶ 36, at 1077.\n[34] For a similar conclusion to that reached here see Alliance Mortgage Co. v. Rothwell, 900 P.2d 601 (Cal. 1995); Tretheway v. Miracle Mortgage, Inc., 995 P.2d 599 (Utah 2000) (interpreting New Mexico law).\n[35] 2008 OK CIV APP 39, 183 P.3d 1022, supra note 27.\n[36] Riverside Nat'l Bank v. Manolakis, supra note 24, at ¶ 8, at 440.\n[37] First United Bank & Trust Co. v. Wiley, supra note 27, at ¶ 9, at 1026.\n[38] First United Bank & Trust Co. v. Wiley, supra note 27, at ¶ 32, at 1031. This court has previously explained the difference between a statute of limitations and a condition upon the exercise of a right, stating that:\n\nThe common law recognizes two different time bars that are conceptually distinct: [1] an \"ordinary\" or \"true\" statute of limitations that regulates the time to bring an action and [2] a time limit that establishes a condition upon the right or constitutes a substantive element of the claim. * * [A] time bar falling into the category of a condition upon the right is a substantive element of the claim and cannot be tolled. It differs vastly from a statute [of limitations] that regulates merely the time for the commencement of an action. This is so because it operates to extinguish the right as well as the remedy and in so doing it may also transfer an interest lost by time lapse. Time bars in this category do not merely destroy the claim but also confer a new right on one who may invoke the benefit of the lapse.\nIn re Estate of Speake, 1987 OK 61, ¶ 13, 743 P.2d 648, 652-53.\n[39] First United Bank & Trust Co. v. Wiley, supra note 27, at ¶ 25, at 1030.\n[40] Riverside Nat'l Bank v. Manolakis, supra note 24, at ¶ 8, at 440.\n[41] \"We prefer to view the § 686 bar as a condition upon the exercise of a right. Unless deficiency is timely sought the mortgagee's debt is deemed satisfied, through the use of legal fiction, by the proceeds from the sale of the specific mortgaged property.\" Neil Acquisition, L.L.C. v. Wingrod Inv. Corp., supra note 5, at ¶ 9 n.10, at 1104 n.10 (citations omitted). \"Section 686 by its express language is more than a statute of limitation. It specifically discharges and extinguishes the debt.\" Apache Lanes, Inc. v. Nat'l Educators Life Ins. Co., 1974 OK 106, ¶ 13, 529 P.2d 984, 986 (a later appeal in this cause, involving different issues, is found in Nat'l Educators Life Ins. Co. v. Apache Lanes, Inc., 1976 OK 121, 555 P.2d 600). Accord Ingerton v. First Nat'l Bank & Trust Co. of Tulsa, 291 F.2d 662, 665 (10th Cir. 1961) (interpreting § 686 as extinguishing the right to a \"deficiency judgment\" after the lapse of the prescribed 90-day period), later appeal on another issue, 303 F.2d 439 (10th Cir. 1962); Int'l Paper Co. v. Whitson, 595 F.2d 559, 562 (10th Cir. 1979).\n[42] The terms of 15 O.S. 2001 § 321 define a guaranty as \"a promise to answer for the debt, default or miscarriage of another person.\"\n[43] In Riverside Nat'l Bank v. Manolakis, supra note 24, at ¶ 10, at 441, we explained that:\n\nOur anti-deficiency statute, § 686, addresses itself exclusively to the creditor/debtor relationship. It does not deal with the more complex, tripartite relationship of guarantor/debtor/creditor or with the rights under a guaranty agreement. The obligations in the latter category are regulated by the distinctly unrelated and separate provisions of 15 O.S. [2001] §§ 321-344.\n[44] Riverside Nat'l Bank v. Manolakis, supra note 24, at ¶ 10, at 441. \"[W]e absolutely reject the notion that the benefits of a § 686 discharge automatically avail to a guarantor.\" Riverside, at ¶ 8, at 440. \"Although a creditor's failure to seek a deficiency recovery may impair a guarantor's right to proceed against the principal debtor, it does not follow that a guarantor is automatically discharged in every case. That must, of course, depend on the nature of the guarantor's undertaking.\" Riverside, at ¶ 10, at 441.\n[45] \"A guarantor's undertaking * * * creates a collateral obligation independent and separately enforceable from that of the principal debtor.\" Riverside Nat'l Bank v. Manolakis, supra note 24, at ¶ 9, at 441; see also Founders Bank & Trust Co. v. Upsher, supra note 8, at ¶ 9, at 1361.\n[46] \"The obligation of a guaranty is contractual, and the inquiry must, in each case, focus on the precise terms of the guarantor's undertaking the dimension or breadth of the promise.\" Riverside Nat'l Bank v. Manolakis, supra note 24, at ¶ 9, at 441. see also Founders Bank & Trust Co. v. Upsher, supra note 8, at ¶ 10, at 1361 (noting the \"general rule that obligations of a private-law guarantor are purely contractual\"); Lum v. Lee Way Motor Freight, Inc., 1987 OK 112, ¶ 16, 757 P.2d 810,815. The terms of 15 O.S. 2001 § 154 provide that \"The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity.\"\n[47] Founders Bank & Trust Co. v. Upsher, supra note 8, at ¶ 3 n.4, at 1359 n.4.\n[48] The terms of 15 O.S. 2001 § 151 state that \"All contracts, whether public or private, are to be interpreted by the same rules, except as otherwise provided by law.\"\n[49] The statutory rules for determining that intent are set out at 15 O.S. 2001 §§ 151 through 157. The terms of 15 O.S. 2001 § 152 provide that \"A contract must be so interpreted as to give effect to the mutual intention of the parties, as it existed at the time of contracting, so far as the same is ascertainable and lawful.\"\n[50] The terms of 15 O.S. 2001 § 157 provide that \"The whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the others.\"\n[51] Founders Bank & Trust Co. v. Upsher, supra note 8, at ¶ 11, at 1362; Mercury Inv. Corp. v. F.W. Woolworth Co., 1985 OK 38, ¶ 9, 706 P.2d 523, 529.\n[52] Founders Bank & Trust Co. v. Upsher, supra note 8, at ¶ 11, at 1362; Riverside Nat'l Bank v. Manolakis, supra note 24, at ¶ 13, at 442; Rucker v. Republic Supply Co., 1966 OK 118, ¶ 9, 415 P.2d 951, 954 (per curiam); First Nat'l Bank v. Cleveland, 1927 OK 194, ¶ 0, 260 P. 80 (First Syllabus by the Court); Lamm & Co. v. Colcord, 1908 OK 216, ¶ 1, 98 P. 355, 356.\n[53] See Apache Lanes, Inc. v. Nat'l Educators Life Ins. Co., supra note 41, at ¶ 15, at 986-87.\n[54] Johnson also contends he should be absolved of liability on the guaranty as a matter of public policy, asserting that as Red Arrow Marina's owner his identity is inseparable from that of the mortgage debtor's. In effect Johnson argues that the protection of § 686 should be extended to dissolve the personal guaranty liability of individuals whose indebted businesses have been released from liability by operation of § 686. Because defendant's argument impermissibly blends two entirely distinct legal obligations the guaranty and the mortgage debt his argument does not avail him in his quest to escape guaranty liability. By signing the guaranty agreement Johnson undertook an obligation that existed wholly apart from, and could survive the extinguishment of, the mortgage debt. Commonalities of identity or association between one who obtains the loan and one who guarantees it cannot overcome the inherent separateness of the two obligations.\n[55] The terms of 15 O.S. 2001 § 338 provide in full:\n\nA guarantor is exonerated, except so far as he may be indemnified by the principal, if by any act of the creditor, without the consent of the guarantor, the original obligation of the principal is altered in any respect, or the remedies or rights of the creditor against the principal, in respect thereto, in any way impaired or suspended.\n[56] The terms of 15 O.S. 2001 § 344 provide in full:\n\nA guarantor is not exonerated by the discharge of his principal by operation of law, without the intervention or omission of the creditor.\n[57] Additional key provisions in the contract state that:\n\n4. LENDER'S GENERAL POWERS:\nLender may take any of the following actions at any time, without notice, without Guarantor's consent, and without making demand upon Guarantor:\n* * \nB. Refrain from taking any action on the Note, the Collateral, or any guarantee [sic] * * .\n* * \n6. RIGHTS, NOTICES, AND DEFENSES THAT GUARANTOR WAIVES:\nTo the extent permitted by law,\n * \nC. Guarantor waives defenses based upon any claim that:\n * \n2. Lender failed to obtain, perfect, or maintain a security interest in any property offered or taken as Collateral * * .\n[58] Founders Bank & Trust Co. v. Upsher, supra note 8, at ¶ 13, at 1362; Cook v. Okla. Bd. of Pub. Affairs, 1987 OK 22, ¶ 15, 736 P.2d 140, 147.\n[59] Founders Bank & Trust Co. v. Upsher, supra note 8, at ¶ 11, at 1362; Mercury Inv. Co. v. F.W. Woolworth Co., supra note 51, at ¶ 11, at 530.\n[60] Smedsrud v. Powell, 2002 OK 87, ¶ 13, 61 P.3d 891, 896.\n[61] Nealis v. Baird, supra note 26, at ¶ 61, at 462; Nichols v. Mid-Continent Pipe Line Co., 1996 OK 118, ¶ 23, 933 P.2d 272, 281; Hough v. Leonard, 1993 OK 112, ¶ 15, 867 P.2d 438, 445; Barnett v. Barnett, 1996 OK 60, ¶ 13, 917 P.2d 473, 477.\n[62] The settled-law-of-the-case doctrine bars relitigation of issues that are finally settled by an appellate opinion or those that the aggrieved party has failed timely to raise in the course of appellate contest. Walters v. J.C. Penney Co., 2003 OK 100, ¶ 6, 82 P.3d 578, 582; Nichols v. Mid-Continent Pipe Line Co., supra note 61, at ¶ 24, at 281. The doctrine derives from a principle of judicial economy that seeks to avoid the \"rehashing\" of issues in successive appeals. Patel v. OMH Med. Cent., Inc., 1999 OK 33, ¶ 22, 987 P.2d 1185, 1195.\n\n", "ocr": false, "opinion_id": 2637669 } ]	Supreme Court of Oklahoma	Supreme Court of Oklahoma	S	Oklahoma, OK
1,774,648	Warren, Duggan and Price	1982-03-25	false	carruth-mortgage-corp-v-ford	Ford	Carruth Mortgage Corp. v. Ford	CARRUTH MORTGAGE CORPORATION, Appellant, v. W. Jaye FORD, Et Al, Appellees	Goldberg, Kusin & Brown, Barry Allan Brown, Houston, for appellant., Green, Sims, Van Os & Lee, Thomas J. Sims, Houston, for appellees.	null	null	null	null	null	null	null	null	null	null	13	Published	null	<parties id="b927-12"> CARRUTH MORTGAGE CORPORATION, Appellant, v. W. Jaye FORD, et al, Appellees. </parties><br><docketnumber id="b927-16"> No. 01-81-0749-CV. </docketnumber><br><court id="b927-17"> Court of Appeals of Texas, Houston (1st Dist.). </court><br><decisiondate id="b927-18"> March 25, 1982. </decisiondate><br><attorneys id="b928-14"> <span citation-index="1" class="star-pagination" label="898"> *898 </span> Goldberg, Kusin <em> & </em> Brown, Barry Allan Brown, Houston, for appellant. </attorneys><br><attorneys id="b928-15"> Green, Sims, Van Os & Lee, Thomas J. Sims, Houston, for appellees. </attorneys><br><judges id="b928-16"> Before WARREN, DUGGAN and PRICE, JJ. </judges>	[ "630 S.W.2d 897" ]	[ { "author_str": "Price", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n630 S.W.2d 897 (1982)\nCARRUTH MORTGAGE CORPORATION, Appellant,\nv.\nW. Jaye FORD, et al, Appellees.\nNo. 01-81-0749-CV.\nCourt of Appeals of Texas, Houston (1st Dist.).\nMarch 25, 1982.\n898 Goldberg, Kusin & Brown, Barry Allan Brown, Houston, for appellant.\nGreen, Sims, Van Os & Lee, Thomas J. Sims, Houston, for appellees.\nBefore WARREN, DUGGAN and PRICE, JJ.\nPRICE, Justice.\nThis is an appeal from a judgment denying recovery on a promissory note and guaranty agreement. The trial was to a jury which found that the appellant should take nothing on its cause of action for deficiency on the note amount, and made negative findings on appellees' affirmative defense of promissory estoppel and cross-action for fraud. Before submission of the case to the jury, the trial court granted appellees' motion for directed verdict on appellees' claim that the appellant's cause of action for fraud was barred by the statute of limitations.\nThe record reflects that on August 21, 1974, the Walker-Southwest Investment Co., appellee, executed a promissory note and deed of trust to Carruth Mortgage, appellant, in the amount of $2,050,000.00 for certain real property. A guaranty agreement was executed at the same time by Mr. Jaye Ford, appellee. The duration of the note was for one year, to become due on August 20, 1975. When the note became due it was not paid. The appellant and appellees executed an extension agreement in December, 1975, to be due and payable on January 10, 1976. For the agreement, appellees paid consideration of $20,000.00. The note was not paid under the terms of the extension agreement. The appellant, Carruth, foreclosed on the deed of trust and at the trustee's sale, Carruth made the highest bid of $1,783,692.00. This amount was credited to the principal of the note, leaving a remaining balance of principal at $266,308. The appellant sued on the note for the remaining deficiency and alleged damages amounting to $350,000. The appellant further contended that the transaction was fraudulent in that the appraisal, loan application and other documents, relied on by Carruth in making the loan, contained an inflated purchase price more than that necessary to purchase the property. As a defense, the appellees asserted promissory estoppel, claiming that the promissory 899 note was based on an agreement that Carruth Mortgage would extend permanent financing to Walker-Southwest Investment Co. so that they could make major renovations to the building and secure permanent tenants for the building. Appellees also counterclaim for fraud, maintaining that the agreement for permanent financing was relied on by them to their detriment and that at the time the promise was made, the appellant had no intention of honoring it. At trial, the Court granted the appellees' motion for an instructed verdict dismissing the claim of fraud made by the appellant because it was barred by the two year statute of limitations. The court denied all other motions and the case was submitted to the jury. The jury found that the appellant was entitled to recover nothing on the note, and made negative findings on both the appellees' defense of promissory estoppel and their counterclaim for fraud.\nIn its first four points of error, appellant complains that the trial court erred in refusing to grant appellant's motion for a directed verdict against appellees on the note where appellant properly pleaded a cause of action for recovery and appellees failed to plead payment as required by Tex. R.Civ.Pro. 94 and 95 and because there was no evidence to support a jury finding that the principal of the note had been paid. Carruth also complains that the trial court erred in submitting a special issue on the determination of the amount due under the note based on the offsets claimed by appellees since the offsets were not legitimate credits toward the principal. Finally, appellant contends that the court erred in refusing to grant appellant's motion to disregard special issue No. 1 because there was no evidence to support such an answer.\nIt is settled Texas law that where a validly executed note goes into default and there is a resulting trustee's sale of the security for the note, a mortgagee must prove 1) the amount due on the note at the time of foreclosure, 2) that proper notice of acceleration had been given, 3) that a valid foreclosure sale was made and 4) that he has given credit to the mortgagor for the amount received at the trustee's sale and any other legitimate credits before he is entitled to a judgment for any deficiency remaining on his note. Williams v. Henderson, 580 S.W.2d 37 (Tex.Civ.App.Houston [1st Dist. 1979] no writ). The appellees do not contend that the note was not properly executed. They also do not contend that the property was sold pursuant to an invalid trustee's sale or that any of the above steps were not complied with. Their only contentions are that there was fraud on the part of the appellant as the appellant did not intend, at the time of executing the contract, to extend permanent financing, and that appellees are entitled to an offset due to this fraud and for any principal, interest or points already paid.\nThe evidence reflects that the foreclosure, trustee's sale and the credit from this sale applied to the amount of the note was made properly. Therefore, the appellant is entitled to at least $266,308.00, the remainder on the principal of the note after the credit has been applied. The record indicates that there is no dispute that there was no payment made on the principal of the note. The appellees, however, contend that they are entitled to offsets for the interest and points previously paid. We disagree. These offsets are not legitimate credits to be applied against the principal. The loan origination fee and any points that the appellees had to pay are fees that are added to the principal of the note as a matter of course and do not affect the principal on the note. Before a payment can be claimed as a legitimate credit against the principal, one must comply with the mandatory provisions of Tex.R.Civ.Pro. 94 and 95 by affirmatively pleading the payment and filing an account stating distinctly the nature of such payment. This was not done. Consequently, no legal offset exists.\nThe appellees' claim that they are entitled to an offset due to the fraud of the appellant, by refusing to extend permanent financing after they had agreed to do so, is without merit. Not only did the jury find against appellees on the fraud issue, but a *900 careful reading of the provisions of the promissory note and deed of trust reflect nothing regarding permanent financing. The provisions are clear and unambiguous, consequently, may not be varied by parol evidence. Town North National Bank v. Broaddus, 569 S.W.2d 489 (Tex.1978).\nBecause the provisions of the contract are clear, and because the offsets claimed by the appellees are not legitimate credits, there is no evidence to support a jury finding that the principal of the note had been paid.\nWe sustain appellant's points of error one, two, three and four.\nIn his fifth, sixth, and seventh points of error the appellant complains that the trial court erred in granting appellees' motion for directed verdict on appellant's claim for fraud on the grounds that recovery was barred by the two year statute of limitations. The claim for fraud centers around the allegation that appellees misrepresented, through an inflated appraisal and earnest money contract, the true purchase price of the property. Appellant claims that they relied on the figures contained in these documents. Appellant, further contends that due to this misrepresentation, the appellant loaned appellees an amount that far exceeded the true purchase price, and that this fraudulent misrepresentation was not discoverable until the property was sold at the trustee's sale, thereby causing a legal injury.\nThe law is clear that fraud prevents the running of the statute of limitations until it is discovered, or by the exercise of reasonable diligence might have been discovered. Knowledge of facts that would have excited inquiry in the mind of a reasonably prudent person, which if pursued by him with reasonable diligence would lead to the discovery of fraud, is equivalent to knowledge of the fraud as a matter of law. Ruebeck v. Hunt, 142 Tex. 167, 176 S.W.2d 738 (1943); Wise v. Anderson, 359 S.W.2d 876 (Tex.Sup.1962).\nSince we are dealing with a directed verdict in favor of appellees, we will look only to that evidence which supports appellant's position and accept such as true. Adams v. Slattery, 156 Tex. 433, 295 S.W.2d 859 (1956).\nThe appellant does not refer us to any portion of the record where we might find any fact bearing upon the question of fraud as required by Tex.R.Civ.Pro. 418. Nevertheless, we have examined the record and find that there is no evidence to indicate that if fraud did exist, it should not have been discovered before the loan was executed. The trial court did not err in granting the instructed verdict.\nAppellant's points of error five, six and seven are overruled. However, because points of error one, two, three and four are sustained this cause of action is reversed and remanded to the trial court.\n", "ocr": false, "opinion_id": 1774648 } ]	Court of Appeals of Texas	Court of Appeals of Texas	SA	Texas, TX
1,762,140	Foret, Swift and Stoker	1980-05-21	false	williams-v-louisiana-machinery-co-inc	null	Williams v. Louisiana MacHinery Co., Inc.	null	null	null	null	null	null	null	null	null	null	null	null	21	Published	null	null	[ "387 So. 2d 8" ]	[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 7456, "opinion_text": "\n387 So. 2d 8 (1980)\nJames Henry WILLIAMS, Plaintiff,\nv.\nLOUISIANA MACHINERY COMPANY, INC., et al., Defendants.\nNo. 7602.\nCourt of Appeal of Louisiana, Third Circuit.\nMay 21, 1980.\n10 John G. Williams, Natchitoches, for plaintiff.\nWatson, Murchison, Crews, Arthur & Corkern, William P. Crews, Jr., Natchitoches, for defendants.\nBefore FORET, SWIFT and STOKER, JJ.\nFORET, Judge.\nThis is a suit by James Henry Williams against Louisiana Machinery Company, Inc., and its insurer, Commercial Union Assurance Company, to recover damages to a Caterpillar 397 diesel engine allegedly sustained as a result of repair work performed on the engine's governor.[1]\nThe trial court, finding the defendant negligent and the plaintiff free of contributory negligence, awarded $4,000.00 to plaintiff for the loss of the engine, $1,043.93 for the purchase price of the replacement parts and repair services, and $1,800.00 for the cost of installation of a new engine.\nBoth parties have appealed. The defendants seek the reversal of the trial court's judgment, or, in the alternative, that it be affirmed as to quantum. Plaintiff urges that the judgment should be reversed insofar as it fails to recognize this claim as one in redhibition and that he is therefore entitled to attorney's fees. Additionally, plaintiff seeks an increase in damages.\nThe plaintiff is the owner and operator of a cotton gin in Natchitoches Parish, Louisiana. This gin was powered by a 397 Caterpillar diesel engine from 1951 through part of 1977. Plaintiff had several employees, some of whom were mechanics, who did some service and maintenance on this engine from time to time. Defendant, Louisiana Machinery Company, was called upon to repair any condition which required involved or expert mechanical skills.\nIn July of 1977, plaintiff took the governor to the shop of Louisiana Machinery in Alexandria, Louisiana. It was discovered during the course of repairs being made to the governor that the spindle shaft needed replacement. A new spindle shaft along with a new pinion assembly was installed in the governor by Bradford Beebe, a mechanic employed by Louisiana Machinery. The new pinion assembly was approximately 5/8 11 inches to ¾ inches shorter than the old assembly which was removed from the governor, a characteristic which prevented the governor from functioning properly. On or about September 8, 1977, the repaired governor was replaced on the Caterpillar diesel engine. The engine was then started to determine whether or not it was functioning properly. As a result of the malfunction of the governor, the engine ran at an excessively high rate of speed and was virtually destroyed before it stopped.\n\nREDHIBITION\nCounsel for plaintiff labors at length in an attempt to show that this suit is one in redhibition, thereby entitling plaintiff to an award for attorney's fees. This contention is without merit.\nRedhibition is dealt with in our Civil Code by Articles 2520, et seq. Article 2520 provides:\n\n\"Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.\"\nPlaintiff is correct in his assertion that the spindle and pinion assembly sold to him were useless for the purpose for which they were purchased. This uselessness, however, was not due to any vice or defect in the thing. \"Vice or defect\" as used in Article 2520 contemplated a physical imperfection or deformity; a lacking of a necessary component or level of quality. The thing plaintiff purchased was not defective within the contemplation of Article 2520. It was merely the wrong part. It was not capable of performing the function for which it was purchased, not because it was defective, but because it was the wrong part. As the trial court very astutely observed: \"Redhibition addresses itself to the quality of the merchandise or thing, and not to a situation where a buyer is furnished with a part, or component, that does not fit\". Therefore, the basis of plaintiff's remedy lies not in an action in redhibition, but in negligence.[2]\n\nFAULT\nLSA-C.C. Article 2315 states, in pertinent part:\n\"Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.\". . .\nThis article is the basis for tort liability in Louisiana. For a plaintiff to recover in Louisiana for damages, the damages must have been caused by the \"fault\" of another. There must be a duty owed by the defendant, or by someone for whom the defendant is answerable, to the plaintiff; a breach of this duty; and this duty must be the cause-in-fact of the damages suffered by the plaintiff. Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So. 2d 620 (1972); Dixie Drive It Yourself System v. American Beverage Co., 242 La. 471, 137 So. 2d 298 (1962); Ferdinand F. Stone, Tort Doctrine, 12 Louisiana Civil Law Treatise § 270 (1977).\n\"Fault\" as used in Article 2315 encompasses more than negligence. It is the breach of a duty owed by one party to another under particular facts and circumstances of a given case. United States Fidelity & Guaranty Co. v. State, Through Department of Highways, 339 So. 2d 780 (La.1976). \"Fault\" is a broad concept embracing all conduct falling below a proper standard. Kahoe v. State Farm Mutual Automobile Insurance Co., 349 So. 2d 1345 (La.App. 1 Cir. 1977), writ denied, 350 So. 2d 1212 (1977).\nThe standard of care to be applied to the case sub judice is found in LSA-C.C. Article 2316 which states:\n\"Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.\"\n12 All persons or entities holding themselves out as possessing certain skills or capabilities owe a duty to whomever procures their services to perform the task in a non-negligent, prudent and skillful manner.\nA repairer has a duty, arising in tort, to exercise reasonable care and skill in the design and repair of the object to be repaired commensurate with the risk of harm flowing from the normal use of that product. Todd Ship Yards Corp. v. Turbine Service, Inc., 467 F. Supp. 1257 (5 Cir. 1978), Restatement (Second) of Torts, § 404 (1965).\nThe record shows that Bradford Beebe, a Louisiana Machinery mechanic, was never given instructions as to the size of spindle required in the type of governor presented for repair. More importantly, Beebe testified that he did not use the serial numbers from the engine when ordering the new spindle and in fact admitted that the wrong part was used. (Tr., pgs. 176-187) Furthermore, plaintiff was told by an employee of defendant, Louisiana Machinery, that no special skill or expertise was required to re-attach the governor to the engine. It is disputed whether or not plaintiff was instructed as to the procedure to be followed in performing a \"backlash\" test. The trial court was in a much better position to evaluate the credibility of the witnesses on this issue than is this Court. We can find nothing which would indicate that his determination as to this issue is manifestly erroneous. We are therefore of the opinion that Louisiana Machinery's negligence was a cause-in-fact of the plaintiff's harm; that Louisiana Machinery owed a duty of workmanlike performance to plaintiff; that this duty was breached, and plaintiff's damage was a direct and consequential result thereof.\nDefendants could exculpate themselves from liability by showing that an intervening act of plaintiff rose to the status of a superseding cause. Defendants argue that plaintiff was negligent in not performing a \"backlash\" test before attaching the governor to the engine and in not connecting the throttle linkage which would have allowed him to shut the engine off before it was damaged. Defendants further assert that this alleged negligence of plaintiff was a superseding cause. We disagree. We do not think plaintiff was negligent in acting as he did. Even if he were negligent, a repairer or manufacturer is subject to liability even though a dangerous condition is discoverable by an inspection which a person in William's position should be under a duty to make. Todd Ship Yards Corporation v. Turbine Service, Inc., supra, Restatement (Second) of Torts, § 396 (1965). Intervening negligence or an intervening cause does not necessarily relieve the tortfeasor of liability. Dixie Drive It Yourself System v. American Beverage Co., supra; Hernandez v. Toney, 289 So. 2d 318 (La.App. 1 Cir. 1973).\n\nDAMAGES\nThe primary objective of a plaintiff seeking redress for property damage through the courts is to be returned as nearly as possible to the status or position he was in immediately preceding the damage caused by the defendant. Our Supreme Court, in Lambert v. American Box Co., 144 La. 604, 81 So. 95 (1919), stated:\n\". . . The obligation of defendant, however, is to indemnify plaintiffto put him in the position that he would have occupied if the injury complained of had not been inflicted on him. . . .\"\nIn Coleman v. Victor, 326 So. 2d 344 (La. 1976), at page 347, the Supreme Court noted:\n\"Three tests have been utilized in determining property damage: (1) cost of restoration, if the damage [sic] item can be adequately repaired; (2) value differential, difference in value prior to and subsequent to the damage; (3) cost of replacement, less depreciation, if the value before and after the damage cannot be reasonably determined or if the cost of repair is more than the value. Peak v. Cantey, 302 So. 2d 335 (La.App.1st Cir. 1974); Roshong v. Travelers Insurance Company, 281 So. 2d 785 (La.App.3rd Cir. 1973); Aetna Insurance Company v. Palao, 13 263 So. 2d 394 (La.App.4th Cir. 1972); Granger v. Bouillion, 220 So. 2d 764 (La. App.1st Cir. 1969); Taylor v. Allstate Insurance Company, 205 So. 2d 807 (La. App.1st Cir. 1967); Keating v. Boyce Machinery Corp., 196 So. 2d 623 (La.App.1st Cir. 1967).\"\nThe Court continued stating that no mechanical rule can be applied with exactitude in assessment of property damage under LSA-C.C. Article 2315. Each case must rest on its own facts and circumstances as supported by the proof in the record.\nIn applying the tests mentioned above to the facts and circumstances of this case, we conclude that the value differential, the difference in value prior to and subsequent to the damage, would be a proper award. The record shows that the cost of restoration is far in excess of the value of the engine at the time that it was destroyed. Likewise, the third test mentioned above cannot be used since this engine was no longer manufactured at the time it was destroyed and therefore could not be replaced by one like the original. Also, the record is devoid of any evidence relating to depreciation.\nBoth Bobby Wilson and George Rolph, defendants' experts, testified that the value of the engine at the time of its destruction was between $2,000.00 and $4,000.00. The trial court accepted the amount of $4,000.00 as appropriate. We agree. The record also reveals that the cost of repair of the governor was $1,043.93, and that the cost of installation of a new engine would be approximately $1,800.00. We think the trial court's award of $6,843.93 is proper.\nFor the above and foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are to be borne equally by the parties, one-half by plaintiff, James Henry Williams, and one-half by the defendants, Louisiana Machinery Company, Inc. and Commercial Union Assurance Company.\nAFFIRMED.\nNOTES\n[1] \"Governor\", as used herein, is an apparatus attached to an engine which is designed to regulate its speed or revolutions per minute.\n[2] Having concluded that plaintiff's action is not one of redhibition, plaintiff's demands for attorney's fees is without merit.\n\n", "ocr": false, "opinion_id": 1762140 } ]	Louisiana Court of Appeal	Louisiana Court of Appeal	SA	Louisiana, LA
1,610,739	Arceneaux	1990-05-21	false	newport-ltd-v-sears-roebuck-co	null	Newport Ltd. v. Sears, Roebuck & Co.	NEWPORT LIMITED, Etc. v. SEARS, ROEBUCK & CO.	Phillip A. Wittmann, Stone, Pigman, Walther, Wittmann & Hutchinson, New Orleans, La., for plaintiff., Harry McCall, Jr., Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, La., for defendant.	null	null	null	null	null	null	null	null	null	null	6	Published	null	<parties id="b1174-3"> NEWPORT LIMITED, etc. v. SEARS, ROEBUCK & CO. </parties><br><docketnumber id="b1174-5"> Civ. A. No. 86-2319. </docketnumber><br><court id="b1174-6"> United States District Court, E.D. Louisiana. </court><br><decisiondate id="b1174-8"> May 21, 1990. </decisiondate><br><attorneys id="b1175-6"> <span citation-index="1" class="star-pagination" label="1079"> *1079 </span> Phillip A. Wittmann, Stone, Pigman, Walther, Wittmann & Hutchinson, New Orleans, La., for plaintiff. </attorneys><br><attorneys id="b1175-7"> Harry McCall, Jr., Chaffe, McCall, Phillips, Toler <em> & </em> Sarpy, New Orleans, La., for defendant. </attorneys>	[ "739 F. Supp. 1078" ]	[ { "author_str": "Arceneaux", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 120, "opinion_text": "\n739 F.Supp. 1078 (1990)\nNEWPORT LIMITED, etc.\nv.\nSEARS, ROEBUCK & CO.\nCiv. A. No. 86-2319.\nUnited States District Court, E.D. Louisiana.\nMay 21, 1990.\n1079 Phillip A. Wittmann, Stone, Pigman, Walther, Wittmann & Hutchinson, New Orleans, La., for plaintiff.\nHarry McCall, Jr., Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, La., for defendant.\n\nORDER AND REASONS\nARCENEAUX, District Judge.\nThis matter comes before the Court on motion to dismiss filed by Sears, Roebuck & Co. (\"Sears\"), seeking the dismissal of two claims made by the plaintiff, Newport Limited (\"Newport\"), including Newport's seventh cause of action under the Racketeer Influenced and Corrupt Organizations Act (\"RICO\"), 18 U.S.C. § 1962(c). Sears argues that Newport has failed to allege facts sufficient to meet RICO's \"continuity\" requirement, and that the allegations relating to predicate acts and pattern, association with and participation in an enterprise, and damages are legally insufficient. For the reasons set forth hereinafter, the Court has determined that dismissal of the RICO claim is appropriate, and that the pendent state claims should be dismissed as well.\nDiscovery has been completed in this matter, and a motion for summary judgment has been filed by Sears (Doc. 442) in which its motion to dismiss the RICO claim is effectively incorporated, and in opposition to which Newport has incorporated its argument. (Doc. 448, p. 82). The facts have been extensively briefed by the parties, and to the degree that undisputed facts are relied upon, the motion to dismiss shall be treated as a motion for summary judgment under Fed.R.Civ.Pro. 56(b).[1]\nThe facts germane to this Court's analysis of the RICO claim are largely undisputed. The parties signed a letter dated January 9, 1985, in which Sears stated:\nWe have analyzed the proposal offered by you for the construction of a new import/export warehousing facility to be located within the Newport Industrial Park, New Orleans, Louisiana, such construction to be on a build-to-suit basis. Based upon our analysis and subject to the preparation of mutually agreeable legal documentation, we are prepared to enter into the transaction on substantially the following terms and conditions.... It is to be understood that the matters contained in this letter will form the basis of a much more detailed document, the terms and conditions of which are subject to the mutual agreement of the parties. It is not intended to be a comprehensive statement of our respective rights, duties and obligations which will be fully set forth in said document.\nNewport claims that sometime in the summer of 1986, \"Sears management had made the decision not to go forward with the proposed project because of a change in their philosophy concerning their \"`replenishment program'\" and that \"[d]espite having internally reached the decision not to go forward with the project, Sears failed to communicate its decision to Newport opting instead to misrepresent its true intentions to Newport by advising that the project would continue as planned and agreed between the parties.\" (Doc. 323, p. 14). At the same time, Newport claims that the gist of the fraud is that Sears sought to create a contract dispute with Newport in order to coerce Newport into withdrawing from the project and shift the blame for the failure of the project from Sears to Newport. (See e.g.: Doc. 448, p. 23, 29, 79-81, att. p. 11, 13, 24).[2] Newport sets forth as predicate acts alleged violations 1080 of mail fraud, 18 U.S.C. § 1341, and wire fraud, 18 U.S.C. § 1343, between July 1985 and May 1986. (Doc. 343, pp. 16-21).\nIn general, RICO liability requires proof of the existence of an enterprise, the defendant's employment by or association with that enterprise and the defendant's conduct of or participation in the conduct of the enterprise's affairs through a pattern of racketeering activity. United States v. Cauble, 706 F.2d 1322, 1333 (5th Cir.1983), cert. denied, 465 U.S. 1005, 104 S.Ct. 996, 79 L.Ed.2d 229 (1984). The defendant must be one who engages in a pattern of racketeering activity connected to the acquisition, establishment, conduct or control of an enterprise.\" Howell Hydrocarbons, Inc. v. Adams, 897 F.2d 183, 190 (5th Cir.1990). Liability under § 1962(c)[3] is visited upon those persons \"who being employed by or associated with ... an enterprise, conducts or participates in the conduct of its affairs through a pattern of racketeering activity.\" H.J., Inc. v. Northwestern Bell Telephone Co., ___ U.S. ___, 109 S.Ct. 2893, 2897, 106 L.Ed.2d 195 (1989).\nIn Delta Truck & Tractor, Inc. v. J.I. Case Co., 855 F.2d 241, 242 (5th Cir. 1988), cert. denied, ___ U.S. ___, 109 S.Ct. 1531, 103 L.Ed.2d 836 (1989), the Fifth Circuit delineated how \"the principle of continuity limits the types of persons, patterns and enterprises that civil RICO may reach.\" The principle of continuity requires that the RICO person be one that either poses or has posed a continuous threat of engaging in acts of racketeering. Generally, that continuity is supplied by pleading the existence of a pattern of racketeering activity. However, \"[t]he continuous threat requirement may not be satisfied if no more is pled than that the person has engaged in a limited number of predicate racketeering acts.\" Delta Truck, 855 F.2d at 242.\nIn H.J., Inc., supra, the Supreme Court established that a RICO pattern requires a showing that the racketeering predicates are related and that they amount to or pose a threat of continued criminal activity. With regard to continuity, the Supreme Court held:\n\"Continuity\" is both a closed- and openended concept, referring either to a closed period of repeated conduct, or to past conduct that by its nature projects into the future with a threat of repetition ... It is, in either case, centrally a temporal conceptand particularly so in the RICO context, where what must be continuous, RICO's predicate acts or offenses, and the relationship these predicates must bear one to another, are distinct requirements. A party alleging a RICO violation may demonstrate continuity over a closed period by proving a series of related predicates extending over a substantial period of time. Predicate acts extending over a few weeks or months and threatening no future criminal conduct do not satisfy this requirement: Congress was concerned in RICO with long-term criminal conduct. Often a RICO action will be brought before continuity can be established in this way. In such cases, liability depends on whether the threat of continuity is demonstrated.\nH.J., Inc., 109 S.Ct. at 2901 (emphasis original).\nThe Supreme Court concluded that related predicates occurring with some frequency over at least six years may be sufficient to satisfy the continuity requirement, as would a showing at trial that such predicates were a regular way of conducting the defendant's business, or a regular way of conducting or participating in the conduct of the alleged and ongoing RICO enterprise. H.J., Inc., 109 S.Ct. at 2906. The Court rejected the argument that very short periods of criminal activity that do not carry a threat of continued criminal 1081 activity fall within the reach of RICO: \"... when Congress said predicates must demonstrate `continuity' before they may form a RICO pattern, it expressed an intent that RICO reach activities that amount to or threaten long-term criminal activity.\" H.J., Inc., 109 S.Ct. at 2902, fn. 4.\nThe Fifth Circuit has applied H.J., Inc.'s pattern requirement in two recent cases. In Howell Hydrocarbons, supra, a single misrepresentation or fraudulent statement was found insufficient in the absence of proof of activities that indicate long-term criminal activity. In Landry v. Air Line Pilots Assn. Int'l AFL-CIO, 901 F.2d 404 (5th Cir.1990), reh. granted in part & denied in part (5th Cir. Ap. 27, 1990), the Fifth Circuit singled out the allegation that one of the defendants had fraudulently received and continued to receive retirement benefits for a number of years as a fact relevant to the existence of a continuing threat. In finding a continuing threat adequately pleaded, the Court ignored three acts of alleged mail fraud directly involving the plaintiffs, which took place over a period of approximately one month, thereby implicitly finding that such acts insufficiently alleged a closed-end pattern by virtue of a lack of continuity.\nHere, the predicates pleaded by Newport are alleged acts of mail and wire fraud between July 1985 and May 1986. (Doc. 323, pp. 16-21). The Court finds, as a matter of law, that these acts do not provide the continuing threat required of a closed-ended RICO pattern. Neither do they constitute, implicitly or explicitly, the continuous threat required for an open-ended pattern. No allegations relating to an open-ended are pleaded, and none exist under the facts relied upon by Newport in support of its claims in this matter.\nIn addition, Newport has not shown that all of the predicate acts constitute violations of the applicable statutes. While Newport alleges that \"[e]ach of the predicate acts alleged by Newport relates to Sears' plan to defraud Newport in connection with the development of the Newport Industrial Park,\" (Doc. 323, p. 22), the statutes require more.[4] At a minimum, the crimes of mail and wire fraud require that the communication be in furtherance of the scheme to defraud, and that the communication relate to material facts. Newport does not allege and the facts do not support the allegation that all of the acts listed were made in furtherance of the alleged scheme to defraud or related to a material fact.\nAs it pertains to Newport's allegations concerning enterprise, the Court refuses to find, as a matter of law, that a plaintiff cannot be deemed the enterprise under § 1962(c). However, Sears' arguments regarding the deficiency regarding its alleged association with the enterprise are well-taken. In this regard, Newport is alleging that \"Sears was associated with Newport in connection with the plans for the development of the Newport Industrial Park ...\" (Doc. 323, p. 22). In effect, Newport would place Sears in the position of conducting or participating in the conduct of Newport's affairs, or in any event so \"associated\" with Newport as to warrant application of the first of the three RICO tests.\nThe facts as pleaded and the undisputed facts established through discovery show that Sears was not associated with Newport as that term is commonly understood: \"[j]oined in companionship, united in action or purpose, sharing in dignity or office, allied,\" 1 Oxford English Dictionary 718 1082 (2d ed. 1989), \"closely connected, joined, or united with another (as in interest, function, activity or office),\" Webster's Third New Int'l Dictionary 132 (1976). Here, it is undisputed that Sears and Newport signed a letter dated January 9, 1985. However, by the very terms of that letter, and even assuming it may have created contractual obligations of some sort, any contemplated association between the parties was in the future, after the preparation of mutually acceptable legal documentation. No matter how important it was for Newport to have Sears in its facility, it remained Newport's facility and Newport was solely responsible for its planning. During the times relevant to this claim, the parties were negotiating toward an association, no more and no less.\nThis lack of association again reveals itself in the related requirement of participation in the enterprise's affairs. \"RICO criminalizes the conduct of an enterprise through a pattern of racketeering activity and not merely the defendant's engaging in racketeering activity.\" Cauble, 706 F.2d at 1331-1332 (emphasis added). In this regard,\nA defendant does not \"conduct\" or \"participate\" in the conduct of a lawful enterprise's affairs, unless (1) the defendant has in fact committed the racketeering acts as alleged; (2) the defendant's position in the enterprise facilitated his commission of the racketeering acts; and (3) the predicate acts had some effect on the lawful enterprise.\nCauble, 706 F.2d at 1332-1333 (emphasis added). See also: United States v. Carlock, 806 F.2d 535, 546 (5th Cir.1986), cert. denied, 480 U.S. 949, 950, 107 S.Ct. 1611, 1613, 94 L.Ed.2d 796, 798 (1987). Here, Newport ignores the second requirement enumerated hereinabove, and relies instead on the first and third element only. Newport does not allege and the facts do not support a finding that Sears occupied anything akin to a \"position\" in Newport, which is necessarily dependent on an underlying association as that term is commonly understood.\nFinally, it is clear that Newport's allegations regarding damages are woefully lacking. Civil actions are authorized under 18 U.S.C. § 1964(c): \"[a]ny person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefore ...\" The Supreme Court has held:\n`[a] defendant who violates section 1962 is not liable for treble damages to everyone he might have injured by other conduct' ... Any recoverable damages occurring by reason of a violation of § 1962(c) will flow from the commission of the predicate acts.\"\nSedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 498, 105 S.Ct. 3275, 3286, 87 L.Ed.2d 346 (1985) (quoting Haroco, Inc. v. American National Bank & Trust Co., 747 F.2d 384, 398 (7th Cir.1984), aff'd, 473 U.S. 606, 105 S.Ct. 3291, 87 L.Ed.2d 437 (1985)). The Fifth Circuit has interpreted this language to require the injury to be caused both factually (but for) and legally (proximately) by the predicate acts. Ocean Energy II, Inc. v. Alexander & Alexander, Inc., 868 F.2d 740 (5th Cir.1989); Zervas v. Faulkner, 861 F.2d 823 (5th Cir.1988).\nNewport has repeatedly refused to specify its damages throughout this litigation.[5] It is clear that it may recover only those damages factually and legally caused by the predicate acts of mail and wire fraud in this RICO claim, not those otherwise owing by virtue of an alleged breach of contract. Here, Newport seeks recovery of damages, not of those monies shown to have been expended as the result of the predicate acts, but of lump sum amounts based on the successful completion of the project, itemized as \"out of pocket loss, lost public monies and lost profits.\" (Doc. 498, p. 9). In addition to a failure of proof regarding causation by virtue of the mail and wire fraud, the generalized damages sought by Newport are, at best, speculative 1083 and based on assumed facts finding no support in the record.\nIndeed, the Court fails to see evidence of even factual causation herein. In this regard, the relevant inquiry is whether the damages claimed by Newport were caused by Sears' alleged misrepresentations concerning its intent in occupying the facility upon development. See: Ocean Energy II, 868 F.2d 740, 747. In considering this issue, all of the undisputed facts, not just those hand-picked by Newport, are considered. Not only has Newport failed to suggest how the requisite causation can be inferred, but has continually and deliberately sought to avoid providing a coherent itemization of damages.\nThe record is replete with examples of undisputed facts which perhaps provide evidence of motivation for Newport's recalcitrance toward specificity. For example, it should be noted that Newport admits that it sent a document to Sears in September 1985 which called on Sears to purchase the property from Newport and finance its construction because Newport felt \"[i]t's time we formalized our agreement.\" (Doc. 442, Exh. 15). In addition, Newport admits that it was informed, at least intermittently during the time in which the alleged predicate acts were performed, that Sears was not interested in additional warehouse space. (See e.g.: Doc. 448, pp. 28-36). Also, contrary to Newport's assertions, it has provided the Court with clear and unambiguous evidence of an April 1986 partnership agreement with a Florida concern and attendant funding in the amount of $23,500,000.00 cash for the development of the Newport facility, which makes no reference to Sears' occupancy therein. (Doc. 448, Exh. 121). These examples are not unintended or isolated, nor limited to those allegations relating to damages.\nWhere a plaintiff claims fraudulent conduct by a defendant as a basis for its RICO claim, Fed.R.Civ.Pro. 9(b) requires that fraud be pleaded with specificity. The requirements set forth in Fed.R.Civ.Pro. 8(a) and 8(e)(1) that pleadings shall contain a \"short and plain statement of the claim\" and \"shall be simple, concise and direct\" applies to allegations of fraud. Old Time Enterprises v. Int'l Coffee Corp., 862 F.2d 1213, 1217 (5th Cir.1989). Here, not only are the pleadings deficient, but Newport has continually sought to obfuscate the facts surrounding their claims.\nThroughout the strained history of this litigation, Newport's refusal to specify its claims of fraud, relevant here to the scheme to defraud underlying the mail and wire fraud predicates and the allegations of damages, also has been continuous and blatant. On the eve of trial after years of difficult discovery, Sears filed a motion to compel aimed at the discovery of the most rudimentary facts concerning the plaintiff's case, including those facts basic to the RICO claim. (Doc. 430). After being provided with literally hundreds of pages of responses, the Magistrate twice ordered Newport to revise its responses in a coherent and specific manner. (Doc. 446, 468). Again, over a hundred pages of answers and responses replete with cross-references were provided.[6]\nThe Magistrate sanctioned Newport by permitting Sears to brief the Court on the effect of Newport's responses by way of supplemental memorandum to this Court on its effect on the pending motions. (Doc. 483). The Court finds that Newport's disregard of orders and deliberate refusal to specify its claims and the facts upon which it relies is pure contumacy. Given the hundreds of Court hours devoted to routine pre-trial matters, at the very least, it reflects the futility of permitting amendment to either the complaint or the RICO case statement; at most, it warrants imposition of the more severe sanctions under Fed.R. Civ.Pro. 37(b), including dismissal with prejudice.\nNewport initially claimed diversity as the basis of this Court's subject matter jurisdiction. Over two years later, by way of fourth amended complaint filed on October 5, 1988, Newport added a RICO claim and alternatively claimed federal question jurisdiction. The Court has recently been 1084 advised by Newport that diversity does not exist between the parties, and that the complaint should be amended to reflect federal question jurisdiction as the basis for this Court's subject matter jurisdiction. (Doc. 503). Carden v. Arkoma Associates, ___ U.S. ___, 110 S.Ct. 1015, 108 L.Ed.2d 157 (1990).[7] Where federal claims are dismissed before trial, pendent state claims should be dismissed as well. United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Wong v. Stripling, 881 F.2d 200 (5th Cir. 1989).\nFinally, the Court has considered Sears' memorandum as to jurisdiction, in which it argues that a Louisiana partnership in commendam should be treated as a corporation for jurisdictional purposes. However, the Supreme Court in Carden specifically commented that entities other than the Puerto Rican sociedad en comandita discussed in Puerto Rico v. Russell & Co., 288 U.S. 476, 53 S.Ct. 447, 77 L.Ed. 903 (1933), would likely be treated as unincorporated groups for diversity purposes. Carden, 110 S.Ct. at 1018. The Court notes that the similarities shared by all limited partnerships was detailed by the dissent in Carden, and recognized by the majority when it simply stated that it had rejected applying Russell beyond its facts in Steelworkers v. R.H. Bouligny, 382 U.S. 145, 86 S.Ct. 272, 15 L.Ed.2d 217 (1965). Carden, 110 S.Ct. at 1019, fn 2.[8] The Court has been provided with no good reason to apply Russell to the facts herein.\nAccordingly,\nIT IS ORDERED that the motion to dismiss filed by Sears, Roebuck & Company, treated in part as a motion to dismiss, is hereby GRANTED as to the claim brought under 18 U.S.C. § 1962(c), and the pendent state law claims are DISMISSED. Judgment shall be entered accordingly.\nNOTES\n[1] Although the Court has ruled on Sears' motion to strike privileged materials, its opinion herein would remain unchanged even if evidence otherwise deemed privileged were considered.\n[2] There is, of course, an inherent inconsistency in these allegations to be noted, which is otherwise pertinent to Newport's lack of specificity, discussed infra.\n[3] The statute provides:\n\n(c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt.\n[4] 18 U.S.C. § 1341 provides in pertinent part:\n\nWhoever, having devised or intending to devise any scheme or artifice to defraud ... for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or takes or receives therefrom, any such matter or thing, ... shall be fined not more than $1,000.00 or imprisoned not more than five years, or both.\n18 U.S.C. § 1343 provides in pertinent part:\nWhoever, having devised or intending to devise any scheme or artifice to defraud ... transmits or causes to be transmitted by means of wire ... in interstate commerce, any writings, signs, signals, pictures or sounds for the purpose of executing such scheme or artifice, shall be fined not more than $1,000.00 or imprisoned not more than five years, or both.\n[5] Newport's refusal to specify is not limited to the issue of damages, but extends to all allegations surrounding the issues of fraud presented in this matter, including those underlying its RICO claim, as discussed infra.\n[6] Newport's responses to the Magistrate's order are hereby made part of the record.\n[7] The Court notes that Newport failed to properly allege diversity jurisdiction even under Fifth Circuit precedent requiring reference to citizenship of general partners, which was reversed by the Supreme Court in Carden, supra, despite being ordered to amend its jurisdictional statement. (Docs. 1, 176, 177).\n[8] The Court parenthetically notes that Louisiana, while enjoying a civilian tradition, is one of the United States. The fact that a Louisiana partnership in commendam derives from a civilian code provides no reason for treatment different from other American limited partnerships. In addition, to otherwise construe \"American-but Louisianian\" limited partnerships as incorporated entities could have far-reaching implications, such as subjecting such entities to that system of federal income taxation imposed upon corporations.\n\n", "ocr": false, "opinion_id": 1610739 } ]	E.D. Louisiana	District Court, E.D. Louisiana	FD	Louisiana, LA
369,283	East, Ely, Sneed	1979-09-20	false	united-states-v-donald-lee-calhoun	null	United States v. Donald Lee Calhoun	UNITED STATES of America, Plaintiff-Appellee, v. Donald Lee CALHOUN, Defendant-Appellant	J. Toney (argued), Toney & Trivellini, West Sacramento, Cal., for defendant-appellant., Julian G. Macias, Jr., Fern M. Segal, Asst. U. S. Atty. (argued), Sacramento, Cal., for plaintiff-appellee.	null	null	null	null	null	null	null	null	null	null	3	Published	null	<parties data-order="0" data-type="parties" id="b1308-5"> UNITED STATES of America, Plaintiff-Appellee, v. Donald Lee CALHOUN, Defendant-Appellant. </parties><br><docketnumber data-order="1" data-type="docketnumber" id="b1308-8"> No. 79-1017. </docketnumber><br><court data-order="2" data-type="court" id="b1308-9"> United States Court of Appeals, Ninth Circuit. </court><br><decisiondate data-order="3" data-type="decisiondate" id="b1308-11"> Sept. 20, 1979. </decisiondate><br><attorneys data-order="4" data-type="attorneys" id="b1308-22"> J. Toney (argued), Toney & Trivellini, West Sacramento, Cal., for defendant-appellant. </attorneys><br><attorneys data-order="5" data-type="attorneys" id="b1308-23"> Julian G. Macias, Jr., Fern M. Segal, Asst. U. S. Atty. (argued), Sacramento, Cal., for plaintiff-appellee. </attorneys><br><p data-order="6" data-type="judges" id="b1309-3"> <span citation-index="1" class="star-pagination" label="1217"> 1217 </span> Before ELY and SNEED, Circuit Judges, and EAST <a class="footnote" href="#fn" id="fn_ref"> </a> , District Judge. </p><div class="footnotes"><div class="footnote" data-order="7" data-type="footnote" id="fn" label=""> <a class="footnote" href="#fn_ref"> </a> <p id="b1309-9"> Honorable William G. East, Senior Judge of the United States District Court for the District of Oregon, sitting by designation. </p> </div></div>	[ "604 F.2d 1216" ]	[ { "author_str": "Sneed", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/604/604.F2d.1216.79-1017.html", "author_id": null, "opinion_text": "604 F.2d 1216\n 5 Fed. R. Serv. 53\n UNITED STATES of America, Plaintiff-Appellee,v.Donald Lee CALHOUN, Defendant-Appellant.\n No. 79-1017.\n United States Court of Appeals,Ninth Circuit.\n Sept. 20, 1979.\n \n J. Toney (argued), Toney & Trivellini, West Sacramento, Cal., for defendant-appellant.\n Julian G. Macias, Jr., Fern M. Segal, Asst. U. S. Atty. (argued), Sacramento, Cal., for plaintiff-appellee.\n Appeal from the United States District Court for the Eastern District of California.\n Before ELY and SNEED, Circuit Judges, and EAST, District Judge.\n SNEED, Circuit Judge:\n \n \n 1\n Appellant Donald Calhoun appeals from his jury trial conviction for bank robbery, 18 U.S.C. § 2113(a)(d), and possession of a firearm by a convicted felon, 18 U.S.C.App. § 1202(a)(1). Because we find that the trial court admitted improper, prejudicial evidence, we reverse.\n \n FACTS\n \n 2\n Two black males robbed the Citizens Savings and Loan in Sacramento, California July 17, 1978. The robbers wore masks with eye cutouts. Two tellers viewed one of the robbers for approximately sixty and fifty seconds, respectively. One shot was fired at the vault in an attempt to open it. Bullet fragments from the shot were collected for identification.\n \n \n 3\n On August 15, 1978, appellant purchased a used car with $3,000 in small denomination bills that he removed from a brown paper bag. Two days later, the person from whom he bought the car recognized a photograph in a local newspaper, called the Federal Bureau of Investigation, and turned over $2,975 of the cash paid by appellant. Subsequent to a photo identification by one of the tellers, appellant was arrested August 18, 1978 while driving the recently purchased automobile. During a search of the car to which the appellant consented, agents discovered a loaded pistol concealed under the spare tire cover. Ballistics comparison revealed that the bullet fired in the robbery had been fired from the pistol found in appellant's trunk. Conflicting testimony indicated that appellant's sister received the pistol prior to the Citizens robbery, but that she was not the person who placed the gun in appellant's car.\n \n \n 4\n At trial a large part of the government's case depended upon identification of the appellant by the two tellers. The government emphasized that appellant's unique eyes aided identification. The defense attempted to attack the identifications in several ways that were thwarted by the trial court's rulings.1 Critical to our disposition, however, is the propriety of certain testimony elicited by the government on redirect examination of a prosecution witness. The government elicited testimony first that appellant paid for the car with $3,000 cash in small bills. On cross-examination of an agent, defense counsel brought out the fact that none of the $2,975 turned over to the agents was bait money that could be traced to the Citizens robbery:\n \n \n 5\n Q. Was any of the money in that $2,975.00 taken from the Citizens Savings and Loan, or were there any bait bills from Citizens Savings and Loan in that money?\n \n \n 6\n A. Not from Citizens.\n \n \n 7\n Reporter's Transcript at 161.\n \n \n 8\n On redirect, the government, over objection, connected the bait bills to a different bank robbery. The agent testified that $70 of the bills were bait bills from an unrelated bank robbery for which appellant had not been charged. The appellant attacks the admission of this testimony.\n \n DISCUSSION\n Federal Rule of Evidence 404(b) provides:\n \n 9\n Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.\n \n \n 10\n This provision is a so-called \"inclusionary\" rule; all evidence of other crimes relevant to an issue at trial is admissible under Rule 404(b) Unless the evidence tends to prove only a criminal disposition. 2 Weinstein's Evidence P 404(08). The government's evidence will clear the Rule 404(b) hurdle in this case only if it was relevant to an issue at trial. Even if particular evidence is admissible under Rule 404(b), Rule 403 provides for discretionary exclusion:\n \n \n 11\n Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.\n \n \n 12\n Although the trial judge has broad discretion in assessing the balance of these factors in a given case, our duty is to reverse if we are convinced that there has been an abuse of discretion. United States v. Hearst, 563 F.2d 1331, 1348-49 (9th Cir. 1977), Cert. denied, 435 U.S. 1000, 98 S. Ct. 1656, 56 L. Ed. 2d 90 (1978).\n \n \n 13\n We do not believe that the evidence the government elicited on redirect only tends to prove a criminal disposition on the part of the defendant. The government contends with considerable force that this evidence was relevant to rebut an exculpatory inference raised by the defense. It argues that the defense raised the bait bill issue, first by questioning the tellers to establish that the robbers of Citizens had taken bait bills, R.T. at 91, 132, and later by establishing that a check of the $2,975 against lists of bait bills did not show that any bait bills from the Citizens robbery were used by appellant to purchase the car, R.T. at 161. Having opened the door, it was proper, the government insists, to show that in fact some of the bills were bait bills from another robbery.\n \n \n 14\n In support of its position, the government cites United States v. Cook, 538 F.2d 1000 (3d Cir. 1976). On cross-examination of a federal agent in that case, the defense attorney asked whether\n \n \n 15\n it was a federal crime to transport an unregistered firearm across state lines. The agent answered that it was not, and further testified that the seized pistol appeared to be a legal weapon. The defense attorney next asked whether it was against Maryland law to carry a concealed weapon. The agent answered affirmatively . . . .\n \n \n 16\n 538 F.2d at 1002.\n \n \n 17\n The trial court then allowed the prosecution to establish that the defendant had been convicted of sodomy previously and thus it was a federal crime for him to be in possession of a firearm. The Third Circuit, however, reversed the conviction. The circuit court recognized that evidence of other crimes could be introduced \"to dispel an exculpatory implication implanted by the defense attorney during cross-examination of a prosecution's witnesses.\" 538 F.2d at 1004. Although it thus found the prior conviction relevant, it applied the balancing analysis of Rule 403 and reversed, stating:\n \n \n 18\n If the inference suggested to the jury is only vaguely favorable to the defendant, is irrelevant to the issues at trial, and does not truly harm the government's case, then the need to refute that inference is not sufficient to outweigh the risk of prejudice that would be posed by the introduction of evidence of other crimes.\n \n \n 19\n 538 F.2d at 1004-05.\n \n \n 20\n We believe our disposition should be guided by Cook. In pursuing the bait bill question as it did at trial, the defense sought to imply that the $2,975 did not derive from the Citizens robbery. The testimony elicited from the tellers and from the agent was all directed to this exculpatory goal. Testimony that $3,000 in $20 and smaller denominations were used to purchase a car obviously implied that the money may have come from the Citizens robbery. That the money was pulled from a brown paper bag strengthened this inference. The defense sought to demonstrate that the government had not established that the bills came from the Citizens robbery. Not content with the still strong inculpatory implication of the manner of payment, the government then went further and sought to connect the appellant with another robbery.\n \n \n 21\n This it should not have done. If strengthening of its already strong inference on redirect were thought necessary, it perhaps could have been done by eliciting responses concerning the denominations of the bills taken from the Citizens robbery and the approximate number of bait bills in the Citizens robbery loot. Even if this means of inference strengthening were not available, the exculpatory force of the defense bait bill inquiry was relatively weak. The possible prejudicial effect of the prosecution's evidence strongly implying that the bait bills came from another robbery, on the other hand, is quite apparent. In short, we believe the probative value of this evidence is substantially outweighed by the danger of unfair prejudice. Therefore, it should have been excluded pursuant to Rule 403. Not to have done so constitutes an abuse of discretion.\n \n \n 22\n We also reject the argument that the prosecution's error was harmless. The government's case rested in large part on witness identification based on brief exposure to a robber wearing a mask covering all but the eyes and upon a gun given to the appellant's sister and found in his car. The elicited evidence linked the appellant to a bank robbery, the precise type of crime with which he was charged. A reasonable jury could have regarded this as the evidence that provided the final weight that enabled it to find the appellant guilty beyond a reasonable doubt.\n \n \n 23\n REVERSED.\n \n \n \n \n Honorable William G. East, Senior Judge of the United States District Court for the District of Oregon, sitting by designation\n \n \n 1\n Appellant attacks trial court decisions to exclude certain defense presentations and testimony. Such decisions are within the discretion of the trial court in managing the trial. In light of our holding as to the appellant's contention concerning prejudicial prosecution evidence, we need not reach these other arguments\n \n \n ", "ocr": false, "opinion_id": 369283 } ]	Ninth Circuit	Court of Appeals for the Ninth Circuit	F	USA, Federal
369,309	null	1979-09-20	false	louis-earl-melanson-v-john-j-duane-co-inc-appeal-of-building	null	null	Louis Earl Melanson v. John J. Duane Co., Inc., Appeal of Building Wreckers' Local 1421, Chelsea, Mass., of the Laborers' International Union of North America	null	null	null	null	null	null	null	null	null	null	null	2	Published	null	null	[ "605 F.2d 31" ]	[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/605/605.F2d.31.79-1097.html", "author_id": null, "opinion_text": "605 F.2d 31\n 102 L.R.R.M. (BNA) 2597, 87 Lab.Cas. P 11,631\n Louis Earl MELANSON, Plaintiff-Appellee,v.JOHN J. DUANE CO., INC., Defendant-Appellee.Appeal of BUILDING WRECKERS' LOCAL 1421, CHELSEA, MASS., OFthe LABORERS' INTERNATIONAL UNION OF NORTHAMERICA, Defendant.\n No. 79-1097.\n United States Court of Appeals,First Circuit.\n Argued June 7, 1979.Decided Sept. 20, 1979.\n \n Ira Sills, Boston, Mass., with whom Segal, Roitman & Coleman, Boston, Mass., was on brief, for defendant-appellant.\n Dianne W. Hayes, Quincy, Mass., with whom Hayes & Hayes, Quincy, Mass., was on brief, for Louis Earl Melanson.\n Jason Berger, Boston, Mass., with whom Snyder, Tepper & Berlin, Boston, Mass., was on brief, for John J. Duane Co., Inc.\n Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.\n BOWNES, Circuit Judge.\n \n \n 1\n The issue in this labor case is whether the district court abused its discretion in refusing to dissolve an order enjoining arbitration of plaintiff's grievances against his employer.\n \n The Facts\n \n 2\n Plaintiff-appellee, Louis Earl Melanson, brought a five count complaint on September 28, 1974, against his former employer, John J. Duane Company, Inc., defendant-appellee, and the Building Wreckers' Local 1421 of the Laborers' International Union (the Union), defendant-appellant. The action was brought pursuant to section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, and 29 U.S.C. § 158(a) and (b). Count I alleged that the employer had wrongfully discharged plaintiff. In Count II, plaintiff claimed that he was paid less than required under the collective bargaining agreement. Count III accused the employer of slander and libel by stating and publishing words alleging that plaintiff was an alcoholic and incapable of doing his job. Count IV alleged damages for loss of income and mental suffering. Count V alleged that the Union failed to process plaintiff's grievance properly and that the Union representative was arbitrary, hostile, and acted in bad faith.\n \n \n 3\n Prior to bringing the complaint in the district court, plaintiff had filed unfair labor practice charges against both the Union and the employer. He alleged that the Union did not fairly represent him in the grievance procedure and had caused or attempted to cause the employer to discharge him and that the employer had underpaid him in violation of the Union contract and wrongfully fired him. The Regional Director dismissed the underpayment claim and the claim that the Union had been instrumental in plaintiff's discharge, but found merit in the claims of a discriminatory discharge and that the Union failed to represent him fairly. Since the Union had indicated a desire to bring the discharge and underpayment claims to arbitration, the Regional Director deferred to the arbitration process and the Union and employer proceeded towards arbitration. Plaintiff opposed arbitration and appealed the dismissal and the arbitration deferral to the Board's General Counsel who affirmed the dismissal of all allegations relative to underpayment, but reversed the Regional Director's decision to defer to arbitration. A complaint issued and a hearing was scheduled. However, due to the Union's insistent demand that the grievances against the employer be arbitrated, the American Arbitration Society had already set a date for a hearing. This caused the General Counsel to reverse himself and defer to arbitration. The plaintiff continued to oppose arbitration and when he refused to attend the hearing, the Union subpoenaed him. Plaintiff promptly filed a motion for a temporary restraining order and preliminary injunction in the district court. On May 8, 1975, the district court enjoined the Union and the employer from proceeding with the arbitration pending further order of the court and quashed the subpoena.\n \n \n 4\n On August 16, 1977, the district court, in response to the Union's motion to dismiss the complaint, dismissed Counts II, III, and IV as to the Union and modified the damage claims in Counts I and V.\n \n \n 5\n On May 8, 1978, the Union moved to dissolve the temporary restraining order issued three years prior, on May 8, 1975, alleging substantial change of circumstances. The motion was referred to a magistrate for a hearing and recommendation. He recommended that the motion be denied and his findings and recommendations were adopted by the district court. This appeal followed.\n \n \n 6\n Each of the parties focuses differently on the issues. The Union argues that plaintiff's failure to exhaust his arbitration remedy precludes him from proceeding further in the district court. The employer agrees with the Union that plaintiff had a duty to arbitrate and says that his failure to do so requires dismissal of his claims of unfair representation and wage underpayments. Plaintiff trains his sights primarily on the discretion that a district court has to refuse to dissolve a preliminary injunction and urges that the injunction be kept in effect.\n \n \n 7\n The first issue is whether we have jurisdiction to hear the appeal. If we were dealing in fact with a temporary restraining order, there could be no appeal. 28 U.S.C. § 1292(a) speaks specifically in terms of appeals from the refusal or granting of injunctions.1 But the temporary restraining order here continued for three years. Its duration and effect were more than temporary. It has to be treated for what it is, a preliminary injunction, not what it was labelled.\n \n \n 8\n A district court, if it were able to shield its orders from appellate review merely by designating them as temporary restraining orders, rather than as preliminary injunctions, would have virtually unlimited authority over the parties in an injunctive proceeding.\n \n \n 9\n Sampson v. Murray, 415 U.S. 61, 86-87, 94 S.Ct. 937, 951, 39 L.Ed.2d 166 (1974). In a situation very similar to the one here, the Second Circuit held: \"When the district court extended for an indefinite period of time the terms of the temporary restraining order issued on November 19 and refused to dissolve it, the order became appealable as the grant of a preliminary injunction.\" Truck Drivers Local Union No. 807 v. Bohack Corp., 541 F.2d 312, 316 (2d Cir. 1976), Cert. denied, 439 U.S. 825, 99 S.Ct. 95, 58 L.Ed.2d 117 (1978). See also Adams v. Vance, 187 U.S.App.D.C. 41, 570 F.2d 950, 953 (D.C.Cir.1978).\n \n \n 10\n Since we are dealing with what is in reality an injunction, the question is whether the district court abused its discretion in refusing to allow arbitration. The Union urges that there has been a substantial change of circumstances requiring dissolution of the order of May 8, 1975. It does not dispute the power of the district court to issue the original order and did not appeal from it. One change of circumstances alleged is the dismissal by the Board on May 30, 1976, pursuant to plaintiff's request, of his unfair labor charge against the Union. The charge had been pending when the order of May 30, 1975, issued. We do not view this as changing in any way the situation facing the district court. The withdrawal of the charge against the Union did not diminish plaintiff's adamant opposition to arbitration of his grievances or his distrust of the Union.\n \n \n 11\n The Union also relies on an affidavit by its business manager as indicating another change in circumstances. This affidavit, which accompanied the Union's motion to dissolve the injunction, states, among other things, that the Union will prosecute plaintiff's grievance fully, fairly and vigorously and that the Union will permit plaintiff to have his own counsel at the arbitration hearing. The district court's order of August 16, 1977, is also relied on as a change of circumstance.\n \n \n 12\n The Union does not seem to fully apprehend the position of plaintiff. He has accused the Union of more than inept representation. He has charged the Union's business representative with being \"blatantly arbitrary, hostile and in marked bad faith.\" The complaint strongly suggests that the Union's business agent was in league with the employer and acted in the interests of the employer and contrary to the interests of plaintiff. In his unfair labor practice charge against the Union, he accused it outright of causing or attempting to cause the employer to fire him. The focus of plaintiff's charges against the Union was its business agent whom he accused of bad faith and hostility. An affidavit by the same business agent that the Union will act vigorously and fairly is not likely to change plaintiff's feelings about the Union, whether they are justified or not. The Union affidavit is not a change of circumstances. It merely restates the Union's original position.\n \n \n 13\n Nor is the district court's order of August 17, 1977, such a change of circumstances as to affect the injunction. The order was made in response to the Union's motion to dismiss the complaint. By eliminating Counts II, III, and IV and limiting the claims in Counts I and V, the court honed the issues for trial. The August 17 order in no way changed the thrust or meaning of the original order of May 8, 1975.\n \n \n 14\n The district court thus did not abuse its discretion when it refused to dissolve the preliminary injunction preventing the union and employer from arbitrating the employee's grievance at this time. It is important to emphasize that the original decision to enter this restraining order is not before us. The basis for the order does not appear clearly in the record. Ordinarily, we would expect a district court to determine initially whether an employee bringing suit on the labor contract under § 301 had exhausted his contractual remedies or could bring himself within a valid exception to that requirement before enjoining arbitration of his complaint. In the unusual circumstances of this case, however, and given the long passage of time since the issuance of the preliminary injunction, we cannot say that it is unreasonable for the district court to retain jurisdiction of this case until such a determination can be made. The district court should now consider whether plaintiff can show that he falls within one of the narrow exceptions to the usual requirement that exhaustion of contractual grievances must precede any § 301 action. See Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); Hayes v. New England Millwork Distributors, Inc., 602 F.2d 15 (1st Cir. 1979); Soto Segarra v. Sea-Land Service, Inc., 581 F.2d 291 (1st Cir. 1978).\n \n \n 15\n Affirmed.\n \n \n \n 1\n 28 U.S.C. § 1292(a) reads as follows:\n (a) The 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, except where a direct review may be had in the Supreme Court(.)\n \n \n ", "ocr": false, "opinion_id": 369309 } ]	First Circuit	Court of Appeals for the First Circuit	F	USA, Federal
91,800	Waite	1887-01-10	false	ex-parte-ralston	null	Ex Parte Ralston	Ex Parte Ralston	Mr. S. .Prentiss Putt for the motion for a mandamus, and opposing the motion as to supersedeas., Mr. James Lowndes, on behalf of The British and American Mortgage Gonvpcmy^ Limited, for the motion to vacate the supersedeas.	null	null	<p>The clerk below is not required to furnish a transcript of the record in a cause iu error, until a writ of error lias issued to which it can he annexed.. ■</p> <p>In error to a state court it has been the prevailing custom, from the begin- . ning, for the clerk of this court or the clerk of the Circuit Court for the prop'er circuit to issue the writ, and for such writ to be lodged with the clerk of the state court before’he could be called on to make the necessary • transcript to be lodged in this court.</p> <p>This court is without jurisdiction to vacate a supersedeas granted where ■ no writ of error was sued out, as it has no legal effect.</p>	null	ORIGINAL. ■ These were applications to the court as a court of original jurisdiction (1) for a writ of mandamus to compel the cleric below to send up a transcript of a record, and (2) to vacate a ; supersedeas. The case is stated in the opinion of the court. ,	null	null	Argued and submitted December 20, 1886.	null	null	3	Published	null	<parties id="b637-6"> EX PARTE RALSTON. </parties><br><summary id="b637-7"> ORIGINAL. </summary><br><otherdate id="b637-8"> Argued and submitted December 20, 1886. </otherdate><decisiondate id="AiQ"> Decided January 10, 1887. </decisiondate><br><syllabus id="b637-9"> The clerk below is not required to furnish a transcript of the record in a cause iu error, until a writ of error lias issued to which it can he annexed.. ■ </syllabus><br><syllabus id="b637-10"> In error to a state court it has been the prevailing custom, from the begin- . ning, for the clerk of this court or the clerk of the Circuit Court for the prop'er circuit to issue the writ, and for such writ to be lodged with the clerk of the state court before’he could be called on to make the necessary • transcript to be lodged in this court. </syllabus><br><syllabus id="b637-11"> This court is without jurisdiction to vacate a supersedeas granted where ■ no writ of error was sued out, as it has no legal effect. </syllabus><br><summary id="b637-12"> ■ These were applications to the court as a court of original jurisdiction (1) for a writ of mandamus to compel the cleric below to send up a transcript of a record, and (2) to vacate a ; supersedeas. The case is stated in the opinion of the court. , </summary><br><attorneys id="b637-13"> <em> Mr. S. .Prentiss Putt </em> for the motion for a mandamus, and opposing the motion as to supersedeas. </attorneys><br><attorneys id="b637-14"> <em> Mr. James </em> Lowndes, on behalf of <em> The British and American Mortgage Gonvpcmy^ </em> Limited, for the motion to vacate the supersedeas. </attorneys>	[ "119 U.S. 613", "7 S. Ct. 317", "30 L. Ed. 506", "1887 U.S. LEXIS 1926" ]	[ { "author_str": "Waite", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 3338, "opinion_text": "\n119 U.S. 613 (1887)\nEX PARTE RALSTON.\nSupreme Court of United States.\nArgued and submitted December 20, 1886.\nDecided January 10, 1887.\nORIGINAL.\nMr. S. Prentiss Nutt for the motion for a mandamus, and opposing the motion as to supersedeas.\nMr. James Lowndes, on behalf of The British and American Mortgage Company, Limited, for the motion to vacate the supersedeas.\nMR. CHIEF JUSTICE WAITE delivered the opinion of the court.\nThis is an application for a writ of mandamus requiring the clerk of the Supreme Court of the state of Louisiana to transmit to this court a true copy of the record in that court of a judgment in the suit of the British and American Mortgage Company against Mrs. E.J. Ralston and her husband, omitting 614 therefrom certain portions not material to the Federal question involved. From the showing made it sufficiently appears that the judgment was rendered April 5, 1886, and that on the 31st of May, 1886, the Chief Justice of the state court allowed a writ of error to this court, \"on furnishing bond, with security, according to law, for one thousand dollars, not to operate as a supersedeas.\" No writ was, however, issued in fact, but the order of allowance, with the petition therefor, was filed in the office of the clerk of the state court, \"and a demand made on the clerk... for a copy of the record.\" According to the statements in the petition, the clerk refused to give such a transcript unless it should include everything used on the trial in the state court, but the petitioner wanted only such parts of the record as were necessary to present the single question of which this court had jurisdiction.\nAfter the allowance of the writ by the Chief Justice of the state court, on application of the petitioner, Mr. Justice Woods, the Associate Justice of this court allotted to the Fifth Circuit, made this order, evidently supposing that a writ of error had actually been issued:\n\"A writ of error having been allowed in this case, and a bond given and duly approved, without an allowance of supersedeas, though the right of supersedeas is claimed by Mrs. E.J. Ralston, the plaintiff in error, it is ordered that further proceedings to enforce executory process in execution sought to be enforced in this case in the Supreme Court of Louisiana, or in the District Court from which the case was appealed to said Supreme Court of Louisiana, be suspended until the further order of the Supreme Court of the United States.\"\nFrom this statement it is apparent that we have no authority over the clerk in the matter about which the mandamus is asked. As no writ of error has in fact been issued, we have no jurisdiction of the suit. Mussina v. Cavazos, 6 Wall. 355, 358; Bondurant v. Watson, 103 U.S. 278. Waiving the question whether the clerk of the state court could issue the writ on the allowance of the Chief Justice of that court, which, to say the least, has never yet been held by this court, McDonogh v. Millaudon, 3 How. 693, it is sufficient to say that he never has 615 done so, and, so far as this record shows, he has never been asked to do it. Certainly it has been the prevailing custom from the beginning for the clerk of this court, or the clerk of the Circuit Court for the proper district, to issue the writ, and for such a writ to be lodged with the clerk of the state court before he could be called on to make the necessary transcript for use in this court. Consequently, the simple lodging of the allowance with him cannot be considered as a demand for the writ; and, besides, this proceeding is not to require him to issue the writ, but to furnish a transcript to be annexed to and returned with the writ, (Rev. Stat. § 997,) which it is not his duty to give until there is a writ to which it can be annexed and with which it can be returned. The application for the mandamus is consequently denied.\nPending these proceedings for mandamus the British and American Mortgage Company has filed a motion to vacate the supersedeas allowed by Mr. Justice Woods. But, as no writ of error has ever been issued, that order has no legal effect. A supersedeas cannot be allowed except as an incident to an appeal actually taken or a writ of error actually sued out. We, however, are as much without jurisdiction to vacate the order of the Justice as he was without jurisdiction to grant it. Consequently, the motion to vacate must be denied, although the order as it stands is of no validity.\nBoth motions denied.\n", "ocr": false, "opinion_id": 91800 } ]	Supreme Court	Supreme Court of the United States	F	USA, Federal
824,031	null	2012-09-07	false	in-re-e-m-montanez-minor	in Re E M Montanez Minor	in Re E M Montanez Minor	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/20120907_S145675_49_145675_2012-09-07_or.pdf", "author_id": null, "opinion_text": "Order Michigan Supreme Court\n Lansing, Michigan\n\n September 7, 2012 Robert P. Young, Jr.,\n Chief Justice\n\n 145675-6 Michael F. Cavanagh\n Marilyn Kelly\n Stephen J. Markman\n Diane M. Hathaway\n Mary Beth Kelly\n Brian K. Zahra,\n ____________________________________ Justices\n\n\n\n SC: 145675-6\n In re E. M. MONTANEZ, Minor. COA: 307908; 307909\n Oakland CC Family Division:\n 11-784286-NA\n ____________________________________/\n\n On order of the Court, the application for leave to appeal the July 17, 2012\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, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the\n foregoing is a true and complete copy of the order entered at the direction of the Court.\n September 7, 2012 _________________________________________\n h0904 Clerk\n\f", "ocr": false, "opinion_id": 824031 } ]	Michigan Supreme Court	Michigan Supreme Court	S	Michigan, MI
2,676,354	null	2014-05-29	false	orders-pursuant-to-rules-3025b-andor-8416b	null	Orders Pursuant to Rules 30.25(b) and/or 84.16(b)	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": "https://www.courts.mo.gov/file.jsp?id=73833", "author_id": null, "opinion_text": " Missouri Court of Appeals\n Southern District\n\n\nMAY 29, 2014\nTHE FOLLOWING CASES WERE AFFIRMED PURSUANT TO RULE 84.16(b).\n\n1. Case No. SD32861\n\n Re: FLOYD MARTIN HAWKINS,\n Movant-Appellant,\n vs.\n STATE OF MISSOURI,\n Respondent-Respondent.\n\f", "ocr": false, "opinion_id": 2676354 } ]	Missouri Court of Appeals	Missouri Court of Appeals	SA	Missouri, MO
589,170	null	1992-08-28	false	kenneth-andrew-friedman-v-jack-mccormick	null	Kenneth Andrew Friedman v. Jack McCormick	null	null	null	null	null	null	null	null	null	null	null	null	0	Unpublished	null	null	[ "972 F.2d 1338" ]	[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/972/972.F2d.1338.91-35856.html", "author_id": null, "opinion_text": "972 F.2d 1338\n NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Kenneth Andrew FRIEDMAN, Petitioner-Appellant,v.Jack McCORMICK, Respondent-Appellee.\n No. 91-35856.\n United States Court of Appeals, Ninth Circuit.\n Submitted Aug. 24, 1992.Decided Aug. 28, 1992.\n \n Before BRUNETTI, RYMER and KLEINFELD, Circuit Judges.\n \n \n 1\n MEMORANDUM\n \n \n 2\n Kenneth A. Friedman, a Montana state prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2254 habeas petition. Friedman was convicted by guilty plea for sexual intercourse without consent and aggravated assault. He was sentenced to consecutive sentences of 20 years for each count. We have jurisdiction under 28 U.S.C. § 2253 and review the denial de novo. Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir.1989). We affirm in part, reverse in part, and remand for an evidentiary hearing and appointment of counsel.\n \n Evidentiary Hearing\n \n 3\n Friedman's only assignment of error is that the district court erred by dismissing his habeas petition without first holding an evidentiary hearing and appointing counsel. The district court must hold an evidentiary hearing if (1) the petitioner's allegations, if they were true, would entitle him to relief, and (2) the state court trier of fact has not, after a full and fair hearing, reliably found the relevant facts. Townsend v. Sain, 372 U.S. 293, 312-13 (1963); see also Bashor v. Risley, 730 F.2d 1228, 1233 (9th Cir.1984). An evidentiary hearing also is required where the petitioner alleges occurrences outside the record which are not patently frivolous. 28 U.S.C. § 2254(d)(8); Shah v. United States, 878 F.2d 1156, 1158 (9th Cir.1989); United States v. Barrows, 872 F.2d 915, 917 (9th Cir.1989). When a district court denies a habeas petition without an evidentiary hearing, it must make specific findings and conclusions in order to show that it has independently reviewed the record. Lincoln v. Sunn, 807 F.2d 805, 808-09 (9th Cir.1987). Appointment of counsel is mandatory for indigent petitioners when an evidentiary hearing is required. Rule 8, 28 U.S.C. foll. § 2254; Bashor, 730 F.2d at 1234.\n \n \n 4\n Friedman contends that an evidentiary hearing is required for all the claims raised in his petition, arising out of two state habeas petitions. In the first state habeas petition, Cause No. 85-141, Friedman alleged that prison authorities denied his right to take kosher meals and to practice his religion. The district court concluded that these allegations cannot be raised on a habeas petition because they do not allege that Friedman is being imprisoned in violation of his constitutional rights. We agree with the district court concerning these claims.\n \n \n 5\n Friedman's second state habeas petition, Cause No. 84-476, raised 16 claims for relief. The Montana Supreme Court dismissed the petition without a hearing on the ground that Friedman's guilty plea was a waiver of each claim that he raised. The district court, applying the balancing test established in Matthews v. Eldridge, 424 U.S. 319, 334-35 (1976), held that Friedman was not deprived of his due process rights by the state court's denial of a hearing. We hold that the majority of Friedman's claims were properly denied but reverse the district court's opinion based upon three claims.\n \n Coerced Guilty Plea\n \n 6\n Friedman alleges that his guilty plea was coerced by the actions of defense counsel. The voluntariness of a guilty plea is a mixed question of fact and law and is reviewed de novo. Marshall v. Lonberger, 459 U.S. 422, 431 (1983). A guilty plea can be rendered involuntary by the actions of defense counsel. Iaea v. Sunn. 800 F.2d 861, 867 (9th Cir.1986). In Iaea, the court remanded the case to the district court for an evidentiary hearing to determine whether counsel's threat to withdraw if the defendant did not plead guilty rendered the plea involuntary, particularly after the defendant dismissed previous counsel due to similar coercion. Iaea, 800 F.2d at 867.\n \n \n 7\n Friedman alleges that counsel would not prepare a defense if Friedman did not plead guilty. Furthermore, Friedman dismissed his previous counsel because of similar pressure to plea. In addition, Friedman's allegations, discussed further below, suggest that there was ample evidence upon which counsel could have raised a defense. The district court did not make any specific findings concerning this claim as required by Lincoln, 807 F.2d at 808-09. Because Friedman's allegations, if true, would entitle him to relief under Iaea, we remand this case to the district court for an evidentiary hearing concerning this claim. Townsend, 372 U.S. at 312-13.\n \n Ineffective Assistance of Counsel\n \n 8\n Friedman contends that counsel's ineffective assistance rendered his guilty plea involuntary. A petitioner must show that counsel's performance fell below a reasonable range of competence to the extent that, but for counsel's errors, there is a reasonable probability that he would not have pleaded guilty and insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985). This court has held that counsel was ineffective where the defendant pleaded guilty and received a life sentence after his counsel told him that he had a good chance of getting probation if he pled, and would almost surely not get an extended sentence. Iaea, 800 F.2d at 865.\n \n \n 9\n Friedman, through numerous affidavits, alleges that he had an exculpatory witness willing to testify which counsel ignored. He also alleged that one of the complaining witnesses went through a line-up at least four times before choosing Friedman, and identified him only after questioning by the police concerning why she had not chosen Friedman. According to Friedman, counsel would not object to the line-up procedure despite his request to do so. In addition, Friedman alleges that counsel stated that he would not receive more than 20 years if he pled, and failed to mention the possibility of concurrent sentences or the fact that Friedman might be designated a dangerous offender, which he was at sentencing.1\n \n \n 10\n The district court dismissed this claim without applying the standard under Hill v. Lockhart, 459 U.S. at 57. In addition, the district court made no specific findings concerning this claim as required by Lincoln, 807 F.2d at 808-09. These claims, if they were proven, would entitle Friedman to relief under Iaea, 800 F.2d at 866. Therefore, an evidentiary hearing should be held on this claim.\n \n Breached Plea Agreement\n \n 11\n Friedman contends that his original sentence was above the maximum that was set out in the plea agreement. Because the plea agreement was not lodged with the district court and the court made no findings concerning this claim, we remand the case for an evidentiary hearing on this claim as well.\n \n Conclusion\n \n 12\n We affirm in part the district court's dismissal of Friedman's habeas petition. We reverse the dismissal in part and remand for an evidentiary hearing on the above three claims. Counsel will be appointed for the hearing according to Rule 8, 28 U.S.C. foll. § 2254.\n \n \n 13\n AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.*\n \n \n \n \n The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4\n \n \n \n This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3\n \n \n 1\n Friedman's sentence was modified to suspend 20 years of his original 40-year sentence if he successfully completed a sex offender treatment program. His original sentence was reinstated because he failed to complete the program\n \n \n *\n Friedman's request for an oral argument before this court is accordingly denied\n \n \n ", "ocr": false, "opinion_id": 589170 } ]	Ninth Circuit	Court of Appeals for the Ninth Circuit	F	USA, Federal
2,618,265	Per Curiam	1992-02-18	false	people-v-dieters	Dieters	People v. Dieters	The PEOPLE of the State of Colorado, Complainant, v. Dirk Tinglan DIETERS, Attorney-Respondent	Linda Donnelly, Disciplinary Counsel, Jay P.K. Kenney, Asst. Disciplinary Counsel, Denver, for complainant., Dirk Tinglan Dieters, pro se.	null	null	null	null	null	null	null	Rehearing Denied March 10, 1992.	null	null	13	Published	null	<parties id="b520-11"> The PEOPLE of the State of Colorado, Complainant, v. Dirk Tinglan DIETERS, Attorney-Respondent. </parties><br><docketnumber id="b520-14"> No. 91SA211. </docketnumber><br><court id="b520-15"> Supreme Court of Colorado, En Banc. </court><br><decisiondate id="b520-17"> Feb. 18, 1992. </decisiondate><br><otherdate id="b520-18"> Rehearing Denied March 10, 1992. </otherdate><br><attorneys id="b521-11"> <span citation-index="1" class="star-pagination" label="479"> *479 </span> Linda Donnelly, Disciplinary Counsel, Jay P.K. Kenney, Asst. Disciplinary Counsel, Denver, for complainant. </attorneys><br><attorneys id="b521-12"> Dirk Tinglan Dieters, pro se. </attorneys>	[ "825 P.2d 478" ]	[ { "author_str": "Per Curiam", "per_curiam": true, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n825 P.2d 478 (1992)\nThe PEOPLE of the State of Colorado, Complainant,\nv.\nDirk Tinglan DIETERS, Attorney-Respondent.\nNo. 91SA211.\nSupreme Court of Colorado, En Banc.\nFebruary 18, 1992.\nRehearing Denied March 10, 1992.\n479 Linda Donnelly, Disciplinary Counsel, Jay P.K. Kenney, Asst. Disciplinary Counsel, Denver, for complainant.\nDirk Tinglan Dieters, pro se.\nPER CURIAM.\nIn this attorney discipline proceeding, a hearing panel of the Supreme Court Grievance Committee recommended that the respondent be suspended from the practice of law for thirty days for submitting an altered stipulation in a judicial proceeding that the respondent knew did not express the agreement of the parties. We issued an order to show cause why more severe discipline should not be imposed. We have considered the responses of the respondent and the assistant disciplinary counsel and now conclude that a suspension for ninety days is warranted.\n\nI.\nThe respondent was admitted to the bar of this court on May 25, 1983, is registered as an attorney upon this court's official records, and is subject to the jurisdiction of this court and its grievance committee. C.R.C.P. 241.1(b). After listening to the testimony of the witnesses, including the testimony and other statements of the respondent, and considering the exhibits introduced by both sides, the hearing board found that the following facts were established by clear and convincing evidence.\nThe respondent represented Patricia Daugherty in a dissolution of marriage proceeding in Arapahoe County District Court. Daugherty's then spouse, Fred Gramse, was not represented by counsel in the proceeding. Settlement negotiations were underway in the fall of 1988 and early 1989. The respondent prepared a document entitled \"Stipulated Permanent Orders,\" which was given to Gramse for his review and approval. Gramse made certain changes to the proposed stipulation. The document was redrafted by the respondent to reflect the changes Gramse requested. When this document was presented to Fred Gramse for his signature on or about January 23, 1989, paragraph 3 on page one provided:\nThe Respondent [Fred Gramse] shall pay child support in the amount of two-hundred ninety-two dollars ($292.00) per month to the Registry of the Court of Arapahoe County. Further, the Respondent acknowledges that he is in arrears from previously ordered child support and maintenance payments in the amount of five-thousand three-hundred eighty-nine dollars ($5,389.00) and still owes in January 1989, two-hundred ninety-two dollars ($292.00). The total arrearage is five-thousand six-hundred eighty-one dollars ($5,681.00). The Petitioner [Patricia Daugherty] agrees to 480 waive interest on the arrearage and the Respondent agrees to enter into and keep in effect a Wage Assignment requiring his employer to deduct from his earnings four-hundred ninety-two dollars ($492.00) per month, representing the child support and two-hundred dollars ($200.00) per month for twenty-eight and one-half (28.5) months as payment upon the arrearage.\n(Emphasis added.) On January 23 and 24, 1989, Fred Gramse demanded that additional changes be made to the redrafted stipulation. The changes, which Daugherty agreed to, were made by interlineation and by striking out of portions of paragraph 3. After the changes were made, paragraph 3 on the first page of the stipulated permanent orders stated:\nThe Respondent shall pay child support in the amount of two-hundred ninety-two dollars ($292.00) per month to the Registry of the Court of Arapahoe County. Further, the Respondent acknowledges that he is in arrears from previously ordered child support and maintenance payments in the amount of five-thousand three-hundred eighty-nine dollars ($5,389.00). The Petitioner agrees to waive interest on the arrearage and the Respondent agrees to enter into and keep in effect a Wage Assignment requiring his employer to deduct from his earnings four-hundred ninety-two dollars ($492.00) per month, representing the child support and maintenance for twenty-seven months as payment upon the arrearage, beginning in March 1989.\n\n(Emphasis added.) Gramse and Daugherty both signed the amended document on the second page and their signatures were notarized. A subsequent hearing in the dissolution proceeding was vacated by a court order which indicated that the parties had entered into a stipulation.\nOn February 22, 1989, the permanent orders hearing was held. Daugherty and the respondent appeared, but Gramse did not. The respondent did not have the original signed and notarized document with him at the hearing. The court instructed the respondent to file the original signed document with the court following the hearing.\nThe first page of the document filed with the court on March 1, 1989, however, was not the document agreed to and signed by Gramse and Daugherty, but was in fact the first page of the redrafted stipulated permanent orders to which Fred Gramse objected on January 23 and 24, 1989. The stipulation which was filed in the court stated that the arrearage in child support and maintenance owed by Gramse was $5,681.00 instead of the $5,389.00 agreed on by Gramse and Daugherty; it introduced some uncertainty as to whether the wage assignment was to be $492.00 or $692.00 per month; and it provided that the wage assignment was to last for twenty-eight and one-half months as opposed to twenty-seven months. A decree of dissolution incorporating the incorrect terms of the altered stipulation was ultimately signed by the court. A wage assignment entered thereafter reflected the higher amount of arrearage.\nThe respondent testified that he did not know how the altered stipulation came to be filed in the court. The hearing board concluded that it had been established by clear and convincing evidence that the respondent removed the first page of the signed, notarized stipulation agreed to on January 24, 1989. In its place, the respondent substituted the page which omitted the changes made by the parties, and he filed this altered document with the court knowing that it did not reflect the actual agreement between the parties. Moreover, the respondent knowingly permitted the court to enter a decree of dissolution which incorporated the terms of the altered document without the consent of the parties and without notifying the court of the alteration.\nThe respondent filed exceptions in this court to the findings and recommendation of the hearing board. The respondent's exceptions were subsequently stricken, however, because he did not request the reporter to prepare a transcript of the proceedings before the hearing board as required *481 by C.R.C.P. 241.20(b)(4). The respondent's exceptions were to a large extent based on findings of fact that the board resolved against the respondent after listening to conflicting testimony. When they are approved by the hearing panel, the board's factual findings are binding on this court unless, after considering the record as a whole, the findings are unsupported by substantial evidence. People v. Genchi, 824 P.2d 815, 817 (Colo. 1992); People v. Bennett, 810 P.2d 661, 665 (Colo.1991). When acting as a fact finder, the hearing board has the duty to assess the credibility of evidence before it, controverted and uncontroverted. People v. Distel, 759 P.2d 654, 662 (Colo.1988). The respondent has not filed with this court a transcript of the hearing before the board, and we cannot say that the board's findings are unsupported by record before us. We therefore conclude, as did the board, that the respondent altered the stipulation and knowingly filed it with the court.\n\nII.\nThe hearing board found, and we agree, that the respondent's conduct violated DR 1-102(A)(4) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation) and DR 1-102(A)(5) (a lawyer shall not engage in conduct prejudicial to the administration of justice). The panel approved the board's recommendation that the respondent be suspended for thirty days. The panel's recommendation of discipline is entitled to deference, but the recommendation is advisory only and we must independently assess the proper level of discipline. People v. Whitaker, 814 P.2d 812, 815 (Colo.1991).\nUnder the American Bar Association's Standards for Imposing Lawyer Sanctions (1986) (ABA Standards), in the absence of aggravating or mitigating factors,\n[s]uspension is generally appropriate when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding.\nABA Standards 6.12. This case presents the following factors in aggravation: (1) the respondent made false or misleading statements to the board, id. at 9.22(f); (2) the respondent has refused to acknowledge the wrongful nature of his conduct, id. at 9.22(g); and (3) the respondent has been indifferent to making restitution, id. at 9.22(j). In mitigation, the board determined that the respondent has no prior disciplinary record, id. at 9.32(a); and did not have a selfish motive, id. at 9.32(b).\nWe believe that the respondent's false and misleading statements to the hearing board also constituted \"obstruction of the Committee or any part thereof in the performance of its duties,\" contrary to C.R.C.P. 241.6(7). The respondent's obstruction of the disciplinary process and his knowing submission of a falsified document to the trial court distinguish this case from others in which a thirty-day suspension was found sufficient. See, e.g., People v. Crimaldi, 804 P.2d 863, 865 (Colo.1991) (rejecting hearing panel's recommendation of thirty-day suspension as too lenient). We conclude that a suspension for ninety days is appropriate considering the nature and extent of the respondent's misconduct.\n\nIII.\nAccordingly, it is hereby ordered that Dirk Tinglan Dieters be suspended from the practice of law for ninety days, effective thirty days after the issuance of this opinion. See C.R.C.P. 241.21(a). It is further ordered that Dieters pay the costs of this proceeding in the amount of $436.65 within thirty days after the announcement of this opinion to the Supreme Court Grievance Committee, 600 Seventeenth Street, Suite 500-S, Dominion Plaza, Denver, Colorado 80202.\n", "ocr": false, "opinion_id": 2618265 } ]	Supreme Court of Colorado	Supreme Court of Colorado	S	Colorado, CO
274,756	Brown, Maris, Thornberry	1967-02-16	false	rayford-lavaughn-thompson-v-united-states	null	Rayford Lavaughn Thompson v. United States	Rayford Lavaughn THOMPSON, Appellant, v. UNITED STATES of America, Appellee	David C. Clark, West Palm Beach, Fla., for appellant., Robert B. McGowan, Asst. U. S. Atty., Edward F. Boardman, U. S. Atty., Tampa, Fla., for appellee.	null	null	null	null	null	null	null	null	null	null	16	Published	null	<parties data-order="0" data-type="parties" id="b874-13"> Rayford Lavaughn THOMPSON, Appellant, v. UNITED STATES of America, Appellee. </parties><br><docketnumber data-order="1" data-type="docketnumber" id="b874-15"> No. 23427. </docketnumber><br><court data-order="2" data-type="court" id="b874-16"> United States Court of Appeals Fifth Circuit. </court><br><decisiondate data-order="3" data-type="decisiondate" id="b874-17"> Feb. 16, 1967. </decisiondate><br><attorneys data-order="4" data-type="attorneys" id="b875-10"> <span citation-index="1" class="star-pagination" label="827"> 827 </span> David C. Clark, West Palm Beach, Fla., for appellant. </attorneys><br><attorneys data-order="5" data-type="attorneys" id="b875-11"> Robert B. McGowan, Asst. U. S. Atty., Edward F. Boardman, U. S. Atty., Tampa, Fla., for appellee. </attorneys><br><p data-order="6" data-type="judges" id="b875-12"> Before MARIS <a class="footnote" href="#fn" id="fn_ref"> </a> BROWN and THORNBERRY, Circuit Judges. </p><div class="footnotes"><div class="footnote" data-order="7" data-type="footnote" id="fn" label=""> <a class="footnote" href="#fn_ref"> </a> <p id="b875-14"> Of the Third Circuit, Sitting by Designation. </p> </div></div>	[ "372 F.2d 826" ]	[ { "author_str": "Thornberry", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/372/372.F2d.826.23427.html", "author_id": null, "opinion_text": "372 F.2d 826\n Rayford Lavaughn THOMPSON, Appellant,v.UNITED STATES of America, Appellee.\n No. 23427.\n United States Court of Appeals Fifth Circuit.\n Feb. 16, 1967.\n \n David C. Clark, West Palm Beach, Fla., for appellant.\n Robert B. McGowan, Asst. U.S. Atty., Edward F. Boardman, U.S. Atty., Tampa, Fla., for appellee.\n Before MARIS,* BROWN and THORNBERRY, Circuit Judges.\n THORNBERRY, Circuit Judge.\n \n \n 1\n Appellant was convicted by jury verdict on both counts of a two-count indictment charging him with interstate transportation and sale of a stolen motor vehicle in violation of 18 U.S.C. 2312-2313. On this appeal, appellant advances numerous points of error, only two of which merit discussion and none of which necessitates reversal of the conviction.\n \n \n 2\n Appellant strongly urges that the trial court erred in refusing to allow his counsel on redirect examination to introduce evidence of a previous acquittal in a similar case involving a stolen vehicle after the Government had allegedly elicited facts related to the prior criminal proceedings on cross-examination. This contention might conceivably have merit were it not for the fact that the record contains no indication whatsoever that the Government brought out any evidence concerning the former prosecution in the course of its cross-examination of appellant. It is true that appellant was questioned concerning the alleged purchase of a 1960 Chevrolet from one Farris approximately one month after his alleged purchase from the same Farris of the 1958 Chevrolet involved in the instant prosecution. It is further true that appellant had been acquitted by jury verdict of the charges relating to the 1960 Chevrolet some three months prior to the trial of the instant case.1 As the trial court reasoned, however, the mere fact that previous charges had been brought against appellant involving the 1960 Chevrolet did not summarily preclude all inquiry into the alleged transactions with Farris, transactions upon which appellant placed primary reliance in refutation of the Government's contentions that appellant had knowledge that the vehicles had been stolen.2 A close study of the entire testimony on cross-examination convinces us that neither Government counsel nor appellant made reference to any fact from which the jury might have inferred that appellant had previously been subject to prosecution involving the 1960 Chevrolet. It is therefore reasonable to conclude that the jury would have never had reason to suspect that appellant had been involved in prior criminal proceedings were it not for the fact that appellant's own counsel on redirect examination inquired of appellant whether he had been previously tried on charges involving the 1960 Chevrolet.3 The prosecution immediately entered an objection, which was sustained by the trial court together with appropriate instructions to the jury to disregard completely the question and answer in its deliberations of the case.4 It is sufficient to say that appellant cannot under these circumstances successfully challenge the validity of his conviction by urging that the jury was prejudiced by evidence of the prior criminal proceeding brought to its attention by appellant's own counsel, nor by urging that the court then erred in rejecting counsel's further attempt to introduce evidence of the prior acquittal.\n \n \n 3\n Appellant further asserts that the trial court erred in refusing to subpoena appellant's daughter as a defense witness pursuant to Rule 17(b),5 and in refusing to grant appellant a continuance during the trial to secure the attendance of such witness. The right afforded by Rule 17(b) to have a witness subpoenaed at government expense is not absolute. Such action is committed to the sound discretion of the trial court, and the exercise of that discretion will not be disturbed on appeal unless exceptional circumstances compel it. Taylor v. United States, 5th Cir. 1964, 329 F.2d 384, 386. Here, the court granted appellant's request to subpoena two other witnesses, and a study of the affidavit setting forth the testimony expected to be given by appellant's daughter reveals that such testimony would have merely been cumulative of that of appellant and the other two subpoenaed witnesses. Moreover, the trial judge in the instant controversy was the same who had conducted appellant's previous trial wherein he had, in fact, granted a request by appellant to subpoena this very witness. He was therefore familiar with the nature of the case as well as the materiality and probative force of the probable testimony, thus placing him in a favorable position to properly evaluate the requests for subpoenaes in the instant controversy. Under these circumstances, we cannot say that appellant's cause was fatally prejudiced by the trial judge's refusal to subpoena this one witness. See Flanagan v. United States, 5th Cir. 1962, 308 F.2d 841, cert. denied, 1963, 374 U.S. 838, 83 S. Ct. 1889, 10 L. Ed. 2d 1059; Greenwell v. United States, 1963, 115 U.S.App.D.C. 44, 317 F.2d 108.\n \n \n 4\n Having concluded that appellant's other numerous objections to the sufficiency of the charge and admissibility of evidence are likewise without merit, we therefore\n \n \n 5\n Affirm.\n \n \n \n *\n Of the Third Circuit, Sitting by Designation\n \n \n 1\n This acquittal was returned in the second trial of the controversy involving the 1960 Chevrolet which followed our reversal in Thompson v. United States, 5th Cir. 1964, 334 F.2d 207\n \n \n 2\n An extended discussion was conducted out of the presence of the jury concerning the propriety of the prosecution's crossexamination of appellant with regard to the alleged transaction with Farris involving the 1960 Chevrolet. At that time, the court made it clear that this line of questioning was not to encompass any reference to appellant's prior arrest or prosecution. Record, pp. 230-34\n \n \n 3\n Q. All right, Mr. Thompson. Now, let's just tell the members of the jury in response to his questions, weren't you as a matter of fact, tried for this same thing involving a 1960 Chevrolet in this Court three months ago?\n A. Yes, I was.\n Mr. McGowan: Objection, Your Honor. Record, p. 245.\n \n \n 4\n Again, in the charge to the jury the court emphasized that no consideration whatsoever should be given to testimony stricken during the course of the trial. Record, pp. 403-04\n \n \n 5\n F.R.Crim.P. 17(b) provides that\n The court or a judge thereof may order at any time that a subpoena be issued upon motion or request of an indigent defendant. The motion or request shall be supported by affidavit in which the defendant shall state the name and address of each witness and the testimony which he is expected by the defendant to give if subpoenaed, and shall show that the evidence of the witness is material to the defense, that the defendant cannot safely go to trial without the witness and that the defendant does not have sufficient means and is actually unable to pay the fees of the witness. If the court or judge orders the subpoena to be issued the costs incurred by the process and the fees of the witness so subpoenaed shall be paid in the same manner in which similar costs and fees are paid in case of a witness subpoenaed in behalf of the government.\n \n \n ", "ocr": false, "opinion_id": 274756 } ]	Fifth Circuit	Court of Appeals for the Fifth Circuit	F	USA, Federal
258,921	Clark, Kaufman, Lumbard, Per Curiam	1962-11-30	false	united-states-v-alexander-norton	null	United States v. Alexander Norton	UNITED STATES of America, Appellee, v. Alexander NORTON, Defendant-Appellant	Thomas Barrett Leary, New York City, for defendant-appellant., Gerald E. Paley, Asst. U. S. Atty., Southern District of New York, New York City (Vincent L. Broderick, U. S. Atty., and Andrew T. McEvoy, Jr., Asst. U. S. Atty., on the brief), for appellee.	null	null	null	null	null	null	null	Argued Nov. 27, 1962.	null	null	5	Published	null	<parties data-order="0" data-type="parties" id="b766-3"> UNITED STATES of America, Appellee, v. Alexander NORTON, Defendant-Appellant. </parties><br><docketnumber data-order="1" data-type="docketnumber" id="b766-5"> No. 140, Docket 27635. </docketnumber><br><court data-order="2" data-type="court" id="b766-6"> United States Court of Appeals Second Circuit. </court><br><otherdate data-order="3" data-type="otherdate" id="b766-7"> Argued Nov. 27, 1962. </otherdate><br><decisiondate data-order="4" data-type="decisiondate" id="b766-8"> Decided Nov. 30, 1962. </decisiondate><br><attorneys data-order="5" data-type="attorneys" id="b766-13"> Thomas Barrett Leary, New York City, for defendant-appellant. </attorneys><br><attorneys data-order="6" data-type="attorneys" id="b766-14"> Gerald E. Paley, Asst. U. S. Atty., Southern District of New York, New York City (Vincent L. Broderick, U. S. Atty., and Andrew T. McEvoy, Jr., Asst. U. S. Atty., on the brief), for appellee. </attorneys><br><p data-order="7" data-type="judges" id="b766-15"> Before LUMBARD, Chief Judge, and CLARK and KAUFMAN, Circuit Judges. </p>	[ "310 F.2d 718" ]	[ { "author_str": "Per Curiam", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/310/310.F2d.718.140.27635.html", "author_id": null, "opinion_text": "310 F.2d 718\n UNITED STATES of America, Appellee,v.Alexander NORTON, Defendant-Appellant.\n No. 140.\n Docket 27635.\n United States Court of Appeals Second Circuit.\n Argued November 27, 1962.\n Decided November 30, 1962.\n \n Thomas Barrett Leary, New York City, for defendant-appellant.\n Gerald E. Paley, Asst. U. S. Atty., Southern District of New York, New York City (Vincent L. Broderick, U. S. Atty., and Andrew T. McEvoy, Jr., Asst. U. S. Atty., on the brief), for appellee.\n Before LUMBARD, Chief Judge, and CLARK and KAUFMAN, Circuit Judges.\n PER CURIAM.\n \n \n 1\n Alexander Norton appeals from his conviction by Judge Metzner, sitting without a jury, under 21 U.S.C. §§ 173, 174 for concealing or transporting heroin, and under 18 U.S.C. § 1403 for using a communication facility in committing a federal narcotics offense.\n \n \n 2\n On December 6, 1961, Norton was arrested and heroin was found in his possession. At the trial, the government showed possession and relied upon the evidentiary rule in 21 U.S.C. § 174 which permits conviction unless the defendant explains the possession to the satisfaction of the jury.\n \n \n 3\n Norton took the stand and admitted he had heroin in his possession at the time of his arrest. He said he had bought it from a man named Sam on 126th Street, Manhattan, and that on other occasions he had purchased larger quantities of narcotics up to one ounce from a man named Sarge. Denying that he knew, at the time of his arrest, that narcotics were imported, he admitted that he had read about illegal importation of heroin from Italy. He testified that he believed that narcotics were produced in California or New York. Judge Metzner found Norton guilty; he made no findings of fact. Appellant argued that the trial judge should have made more detailed findings with respect to the defendant's explanation of his possession of the heroin. We disagree.\n \n \n 4\n It is obvious that Judge Metzner found Norton's explanation unsatisfactory, and to do so was well within his province. United States v. Gibson, 310 F.2d 79 (2 Cir., 1962). The presumption is not overcome as a matter of law merely because a defendant testifies that he did not know that narcotics were imported illegally and gives as the source of the illegal drugs the name of someone whose existence and identity are not further established. The trial judge is not required to accept such an explanation as a rebuttal of the statutory presumption.\n \n \n 5\n The appellant's other contentions are without merit.\n \n \n 6\n We express our appreciation to assigned counsel, Thomas Barrett Leary, Esq., for his conscientious representation of the appellant.\n \n \n 7\n Affirmed.\n \n ", "ocr": false, "opinion_id": 258921 } ]	Second Circuit	Court of Appeals for the Second Circuit	F	USA, Federal
2,618,542	Fatzer	1965-06-12	false	brimer-v-state	Brimer	Brimer v. State	Otis E. Brimer, Also Known as Otis Elmer Brimer, Appellant, v. the State of Kansas, Appellee	Richard E. Blackwell, of Salina, argued the cause and was on the briefs for appellant., John Weckel, of Salina, argued the cause, and Robert C. Londerholm, Attorney General, of Topeka, and Bill Crews, County Attorney, of Salina, were with him on the briefs for appellee.	null	null	null	null	null	null	null	null	null	null	14	Published	null	<docketnumber id="b141-3"> No. 44,102 </docketnumber><br><parties id="b141-4"> Otis E. Brimer, Also Known as Otis Elmer Brimer, <em> Appellant, </em> v. The State of Kansas, <em> Appellee. </em> </parties><br><citation id="b141-5"> (402 P. 2d 789) </citation><br><decisiondate id="b141-13"> Opinion filed June 12, 1965. </decisiondate><br><attorneys id="b141-14"> <em> Richard E. Blackwell, </em> of Salina, argued the cause and was on the briefs for appellant. </attorneys><br><attorneys id="b142-3"> <span citation-index="1" class="star-pagination" label="108"> *108 </span> <em> John Weckel, </em> of Salina, argued the cause, and <em> Robert C. Londerholm, </em> Attorney General, of Topeka, and <em> Bill Crews, </em> County Attorney, of Salina, were with him on the briefs for appellee. </attorneys>	[ "402 P.2d 789", "195 Kan. 107" ]	[ { "author_str": "Fatzer", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 4461, "opinion_text": "\n195 Kan. 107 (1965)\n402 P.2d 789\nOTIS E. BRIMER, Also Known as OTIS ELMER BRIMER, Appellant,\nv.\nTHE STATE OF KANSAS, Appellee.\nNo. 44,102\nSupreme Court of Kansas.\nOpinion filed June 12, 1965.\nRichard E. Blackwell, of Salina, argued the cause and was on the briefs for appellant.\n108 John Weckel, of Salina, argued the cause, and Robert C. Londerholm, Attorney General, of Topeka, and Bill Crews, County Attorney, of Salina, were with him on the briefs for appellee.\nThe opinion of the court was delivered by\nFATZER, J.:\nThis appeal arises out of the provisions of K.S.A. 60-1507, whereby the appellant, who is presently confined in the Kansas State Penitentiary, sought to vacate and set aside an alleged void sentence of the district court of Saline County entered March 17, 1961, upon his pleas of quilty to two counts of forgery in the second degree. Relief was denied by the district court, hence this appeal.\nThe facts are not in dispute. On August 10, 1960, a complaint was filed in the city court of Salina, Kansas, charging the appellant, hereafter referred to as defendant, with two counts of forgery in the second degree. On that same day, a warrant for the defendant's arrest was duly issued to the sheriff of Saline County on the complaint. At the time the complaint was filed and the warrant issued, the defendant was duly and lawfully confined in the Kansas State Penitentiary at Lansing, Kansas. A detainer was issued notifying the warden of the Kansas State Penitentiary of the pendency of the criminal complaint in the city court of Salina, Kansas.\nOn August 25, 1960, the defendant, through the warden, attempting to comply with the Uniform Mandatory Disposition of Detainers Act (K.S.A. 62-2901, et seq.) caused a request for disposition of the detainer placed against him to be sent by certified mail to the sheriff of Saline County, the district court of Saline County, and the county attorney.\nOn February 24, 1961, the defendant was returned from the penitentiary and appeared before the judge of the city court of Salina; he waived preliminary examination on both counts of forgery in the second degree then pending against him, and the city court bound him over to the district court to stand trial on those charges.\nOn March 9, 1961, an information was filed in the district court charging the defendant with two counts of forgery in the second degree. On March 14, 1961, the defendant was brought before the district court and it being made to appear to the court that the defendant did not have counsel and that he desired the court to appoint counsel to represent him in that cause, the court appointed Mr. Harold L. Smither, a member of the Bar of Saline County, to represent the defendant.\n109 On March 17, 1961, the defendant and his counsel appeared before the district court for arraignment; and upon being asked by the court how he desired to plead to the charges of forgery in the second degree, the defendant entered his plea of guilty to each of said charges. Thereupon, the court sentenced the defendant to confinement in the Kansas State Penitentiary for a period of not more than ten years on each count pursuant to G.S. 1949, 21-631, the term of each sentence to run concurrently with the other and with the remaining sentence under which the defendant was then serving in the Kansas State Penitentiary.\nOn February 3, 1964, the defendant filed a petition for a writ of habeas corpus in the district court of Saline County, alleging that he had fully complied with the requirements of the Uniform Mandatory Disposition of Detainers Act and that the failure of the authorities of Saline County to bring him to trial before the expiration of the period of time fixed in the Act rendered the convictions of March 17, 1961, illegal and void, and the district court of Saline County was without jurisdiction to impose sentence upon him.\nOn February 7, 1964, the district court permitted the defendant to proceed in forma pauperis set his petition for hearing on February 21, 1964, and entered an order which was served upon the defendant, ordering him to submit to the court prior to the hearing any and all documentary or written evidence available to him in support of his allegations of compliance with the Uniform Mandatory Disposition of Detainers Act, and specifically, to show proof of mailing of the request for disposition of detainer to the court in which the indictment, information, or complaint was pending against him and the manner and date of mailing.\nOn February 18, 1964, the district court appointed Mr. Bryan J. Hoffman, a practicing attorney of Salina, to represent the defendant.\nOn February 21, 1964, the court found that the relief asked for by the defendant in his petition for a writ of habeas corpus was in effect a motion for relief under the provisions of K.S.A. 60-1507, and ordered that the defendant's petition be treated as a motion for relief thereunder. Upon request of defendant's counsel, the hearing on the motion was continued until March 9, 1964.\nOn that date, the court found that the defendant's application under the Uniform Mandatory Disposition of Detainers Act was directed to the district court of Saline County and that all matters then 110 pending against him relating to the offenses of forgery in the second degree were contained in the complaint then pending in the city court of Salina and no other court; that none of the notices requesting disposition of the detainer were mailed by him through the warden to the city court of Salina; that the defendant did not comply with the provisions of the Act, and that his allegation that he was not tried within 180 days as provided in K.S.A. 62-2903 was not correct and was not proved by the defendant, and that, therefore, the notice and request made by him did not comply with the Act and did not deprive the district court of jurisdiction to accept his pleas of guilty on March 17, 1961, or to find him guilty on said pleas and to sentence him to confinement in the Kansas State Penitentiary.\nThe district court further found that his pleas of guilty entered on March 17, 1961, were legal in all respects and that the defendant was not entitled to relief in this proceeding, and entered its order denying relief under K.S.A. 60-1507.\nIt appears from the record that 179 days elapsed from August 25, 1960, when the defendant attempted to comply with the provisions of the Disposition of Detainers Act, until February 24, 1961, when he was returned to Saline County and brought before the judge of the city court of Salina when he waived his right to a preliminary examination. On March 9, 1961, the county attorney filed an information in the district court charging the defendant with two counts of second degree forgery. Thereafter, the defendant voluntarily entered his pleas of guilty to those charges on March 17, 1961. Approximately 201 days had elapsed from the time he mailed his request for disposition of detainer on August 25, 1960, until he was brought to trial on March 17, 1961.\nIn State v. Goetz, 187 Kan. 117, 353 P.2d 816, this court held that the speedy trial provided by section 10 of our Bill of Rights of an accused prisoner incarcerated in a penal institution of this state has, under specified conditions, been legislatively defined by the Uniform Mandatory Disposition of Detainers Act. (K.S.A. 62-2901 et seq.)\nThe Act, in pertinent part, is summarized and quoted: Section 62-2901 provides that any person who is imprisoned in a penal or correctional institution of this state may request final disposition of any untried indictment, information or complaint pending against him. The prisoner's request shall be in writing, addressed to the 111 court which the indictment, information or complaint is pending and to the county attorney charged with the study of prosecuting him. The warden or superintendent having custody of prisoners shall promptly notify each prisoner in writing the source and nature of any untried indictment, information or complaint against him of which he has knowledge or notice and of the prisoner's right to make a request for final disposition thereof.\nSection 62-2902 provides that the prisoner's request shall be delivered to the warden or superintendent having custody of the prisoner, who shall forthwith send by registered or certified mail, return receipt requested, one copy of the prisoner's request and certificate to the court and one copy of the county attorney to whom it is addressed.\nSection 62-2903 provides:\n\"Within one hundred eighty (180) days after the receipt of the request and certificate by the court and county attorney or within such additional time as the court for good cause shown in open court may grant, the prisoner or his counsel being present, the indictment, information or complaint shall be brought to trial; but the parties may stipulate for a continuance or a continuance may be granted on notice to the attorney of record and opportunity for him to be heard. If, after such a request, the indictment, information or complaint is not brought to trial within that period, no court of this state shall any longer have jurisdiction thereof, nor shall the untried indictment, information or complaint be of any further force or effect, and the court shall dismiss it with prejudice.\" (Emphasis supplied.)\nThe record in this case does not contain the defendant's written request for disposition of detainer placed against him, which was directed to the district court of Saline County, and to the sheriff and county attorney. The defendant contends there was substantial and sufficient compliance with the Uniform Mandatory Disposition of Detainers Act when he prepared the request for disposition of the detainer, notwithstanding the fact that the notice and request were mailed to the district court of Saline County rather than to the city court of Salina where the untried complaint was then pending against him.\nThe Disposition of Detainers Act clearly provides that the prisoner in any penal or correctional institution of this state may request final disposition of a criminal charge or proceeding pending against him by a request in writing \"addressed to the court in which the indictment, information or complaint is pending.\" The court below specifically found that when the defendant mailed his 112 request for disposition of detainer, the criminal charges then pending against him were pending in the city court of Salina and in no other court. The right to a speedy trial as provided in section 10 of our Bill of Rights is a personal right and, as previously indicated, has been legislatively defined by K.S.A. 62-2901 et seq. However, the right to invoke that statute requires compliance by the prisoner with all its provisions including the preparation by him and the mailing by the warden of his notice for request of disposition of detainer to the court in which the untried indictment, information or complaint is then pending against him. While the Act is to be construed so as to effectuate its general purpose to make uniform the law of those state which have enacted it, we cannot say that when a request for disposition of detainer is mailed to a court other than the one in which the criminal charge against the prisoner is then pending, is a compliance with the Act so as to require the state to bring the defendant to trial within the time and under the terms and conditions of section 62-2903.\nIn State v. Goetz, supra, the criminal charges against the defendant were pending in the county court of Finney County, Kansas. The request for disposition of detainer complied with the Act it was sent by certified mail to the judge of the county court and the county attorney of Finney County. Later, the defendant was given a preliminary examination and bound over to the district court for trial. He was not brought to trial in the district court within 180 days from the date of his request for disposition of detainer and this court held that the district court did not have jurisdiction to accept the defendant's pleas of guilty and to sentence him to confinement in the penitentiary.\nIn the instant case, the only court to which the defendant could direct his notice for disposition of detainer was the city court of Salina. That was the only court which then had criminal charges pending against him. Not until he waived his right to a preliminary examination and an information was filed in the district court charging him with forgery in the second degree, did the district court have jurisdiction to try those charges. While a prisoner who is confined in a penal institution of this state must be brought to trial within 180 days after receipt of his request by the court and county attorney, he is required to comply with the Act to receive its protection. Where, as here, the defendant directed his notice to a court which did not have criminal charges pending against him, his request 113 for disposition of detainer was ineffective to invoke the benefits of the Act. Hence, in failing to comply with the provisions of the Act, the defendant waived his right to question whether he had a speedy trial by his pleas of guilty entered on March 17, 1961. (Moore v. Hand, 187 Kan. 260, 356 P.2d 809.)\nThis court is compelled to conclude that the defendant failed to comply with the provisions of the Uniform Mandatory Disposition of Detainers Act by his failure to serve his notice and certificate upon the city court of Salina, and the district court of Saline County was not deprived of jurisdiction to accept his pleas of guilty on March 17, 1961, or find him guilty on said pleas and to lawfully sentence him to confinement in the Kansas State Penitentiary.\nThe judgment is affirmed.\n", "ocr": false, "opinion_id": 2618542 } ]	Supreme Court of Kansas	Supreme Court of Kansas	S	Kansas, KS
85,343	Johnson	1821-03-16	false	leeds-v-marine-insurance	Leeds	Leeds v. Marine Insurance	Leeds Et Al. v. the Marine Insurance Company	This cause was argued by Mr. Swann and Mr. Jones for the appellant, ,and by the Attorney-General and Mr. Lee for the-respondents.	null	null	null	<p>^Chancery.)</p> <p>Application of the law of set-off and lien in Equity, under peculiar circumstances.</p>	Appeal from the Circuit Court for the District of Columbia. This was a suit in Equity, commenced in the Court below by the respondents against the appellants, in which the injunction obtained on the filing of the bill was made perpetual. The facts are stated in the opinion of the Court.	null	null	March 9th.	null	null	5	Published	null	<headnotes id="Air"> ^Chancery.) </headnotes><parties id="Ah3U"> Leeds <em> et al. </em> v. The Marine Insurance Company. </parties><otherdate id="Aqp"> <em> March 9th. </em> </otherdate><headnotes id="AX5"> Application of the law of set-off and lien in Equity, under peculiar circumstances. </headnotes><summary id="AXqb"> Appeal from the Circuit Court for the District of Columbia. </summary><summary id="AEU"> This was a suit in Equity, commenced in the Court below by the respondents against the appellants, in which the injunction obtained on the filing of the bill was made perpetual. The facts are stated in the opinion of the Court. </summary><attorneys id="AqSX"> This cause was argued by Mr. <em> Swann </em> and Mr. <em> Jones </em> for the appellant, ,and by the <em> Attorney-General </em> and Mr. <em> Lee </em> for the-respondents. </attorneys><decisiondate id="Aysi"> <span citation-index="1" class="star-pagination" label="566"> *566 </span> <em> March 16th. </em> </decisiondate>	[ "19 U.S. 565", "5 L. Ed. 332", "6 Wheat. 565", "1821 U.S. LEXIS 375" ]	[ { "author_str": "Johnson", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 1646, "opinion_text": "\n19 U.S. 565 (1821)\n6 Wheat. 565\nLEEDS et al.\nv.\nTHE MARINE INSURANCE COMPANY.\nSupreme Court of United States.\nMarch 9, 1821.\nMarch 16, 1821.\nThis cause was argued by Mr. Swann and Mr. Jones for the appellant, and by the Attorney-General and Mr. Lee for the respondents.\n566 Mr. Justice JOHNSON delivered the opinion of the Court.\nThis case involves a great many questions both of law and fact, but we will consider it as it is affected by those circumstances, concerning which there is no dispute.\nLeeds and Straas being engaged in commercial enterprizes, Straas employed Hodgson to effect insurance on the Sophia and her cargo. A note of Hodgson, with Patton and Dykes as endorsers, is taken for the premium. Another adventure on the brig Hope, grows out of the first, on the Sophia, and the same agent, at the request of the same principal, effects insurance upon this also, with the same Company. The Sophia arrives in safety, but though one of the endorsers is unquestionably sufficient, the premium note remains unpaid. The Hope is lost, and Hodgson professedly suing for the use of Straas and Leeds, has recovered judgment against the underwriters for the amount of the policy. From this amount the premium note connected with that policy was discounted, but that growing out of the insurance on the Sophia, was not pleaded, notwithstanding the identity of the legal plaintiff in that action, with the debtor to the company in the transaction on the Sophia.\nThe note taken for the insurance on the Sophia, is now set up against the policy on the Hope, in a different form. This bill is filed to compel the parties in interest, Hodgson, Leeds and Straas, to discount it from the judgment against the underwriters.\nThe equity of this demand is now to be tested.\n567 The right to the discount considered with reference to identity of parties, was clearly a legal one. And had not the Company been injoined in the Chancery of Virginia, during the pendency of the suit upon the policy, they must have lost all claim to the interposition of this Court, by failing to assert their legal rights in the Court to which they properly belonged. But the Chancery of Virginia might have considered the Company in contempt, had they set up in discount a claim then pending, and then injoined in the Courts of that State. And, therefore, we may now be justified in considering the legal rights of the Company, against the policy on the Hope, as derived through the premium note on the Sophia, under all the advantages that it would have possessed, if pleaded as a set-off to the action at law.\nThe bill, it is true, does not explicitly rest on this, as the ground of its equity, but the facts are so set out, and may be properly considered as making up the case.\nWhat was the state of right as it stood at law Hodgson, as holder of the policy which he had effected, was, to the amount of his commissions, advances, or even liability incurred in the transaction, a privileged creditor, and that possession could not be violated until he was indemnified or compensated. If he be considered as the legal plaintiff in the action on the policy, and, in fact, the legal owner of the money recovered for the use of others, the law would not suffer him to be deprived by transactions between Straas and Leeds, to which he never assented, of any 568 legal advantage derived from possession of that money.\nSuppose, to come up to the very case before us, the Company had pleaded this note as a set-off to the suit on the policy, and Hodgson, the legal plaintiff, had tendered a replication admitting the plea, in what manner could the Company or himself have been deprived of the benefit of its being thus disposed of? That Hodgson was entitled to indemnity from Straas at least, against this note, is unquestionable, and he would, as against Straas, have, under any circumstances, been entitled to retain a sufficient sum to cover his liability. Then how could he, by the act of Straas, either by assigning away his interest, or by impeding by an injunction, that act in a third person, which would have secured him in its consequences, be deprived of the benefit of compelling the admission of this set-off? The case in equity, as it now stands, is precisely that which would have arisen at law, upon the state of things supposed. For, Hodgson, in his answer to this bill, admits this set-off, and solicits the Court to enforce the admission of it by Leeds, who in the right of Straas, is thus endeavouring to deprive him of his legal right to indemnity. The case in no part contests the reality of this state of facts, but the defendant, Leeds, in every part of it, rests his defence upon the ground, that Straas has succeeded in defeating the claims of Hodgson, and deprived the Company of the benefit incident to the assertion of those claims, first, by tying the hands of the Company in a Court of Chancery, in a suit in which he finally failed, and then by a transfer of a 569 chattel interest, the evidence of which, or the contract itself, was in the hands of Hodgson, and legally subject to his control, until the money due on it was reduced into possession.\nIt is true, that had this set-off been pleaded at law to Hodgson's suit upon the policy, and the equitable interest of others been set up against such plea, or against Hodgson's admission of it, the Court of Common Pleas must, according to modern practice, have heard the parties on affidavit, before it determined to admit Hodgson's replication on its files. But, supposing the case to have been presented on affidavit, such as it now appears to this Court, that Court would not have taken upon itself to deprive the legal plaintiff of a legal advantage, in favour of an assignee of a chose in action, where the equity of the case was so strong in the favour of the legal plaintiff.\nIt is obvious, that the principal difficulties in this case arise from the inverted and peculiar state of the parties. Hodgson, (and with him his endorser,) who is really the party to be relieved, appears in the character of defendant, and the question presents itself, why should the underwriters be at liberty to quit their hold upon their note for indemnity, and come upon the judgment holder on the policy for satisfaction in the first instance?\nBut to this several answers present themselves.\nWhy, if the underwriters had several remedies, should they, by the act of the opposite party, be deprived of any one of them? Why, if they might 570 legally have availed themselves of their remedy by discount, should they now be deprived of it because they were prevented, unconscientiously by their antagonist, from asserting it in its proper place? And why, if they can in this way certainly save their money, should they be put to the risk and labour of prosecuting a recovery upon their note?\nBut the case affords another answer of a more general nature. Notwithstanding Hodgson's insolvency, his claims upon this policy remain unpaid, if it be only for the purpose of shielding his endorsers; and notwithstanding his appearance here as a co-defendant, it is obvious, that dismissing this bill must give rise to new suits between the persons liable to pay this note, and the assignee of Straas' interest under the policy. This consideration affords the additional reason, that entertaining this suit terminates litigation, and the reverse would be the consequence of dismissing this bill. If having been deprived by his antagonist of his remedy at law, is a sufficient ground for entertaining the suit of the complainant, it is certainly no objection to it, that relief is at the same time extended to one who, though nominally a co-defendant, is essentially a co-plaintiff, and might have been made such.\nHad he been made such, the case would have presented fewer difficulties. If Straas himself could not have demanded of Hodgson this policy, or the money recovered on it, without securing him against the premium note, neither can his assignee. Even the Courts of law have recognised the lien of a broker 571 on a chose in action for a general balance of account, and much more so ought a Court of equity in the application of a principle so peculiarly its own, as that which gives effect to a transfer by assignment of a chose in action not in its nature negotiable.\nThe parties in this case sue only to be restored to their legal advantages, as that cannot be done specifically, they certainly have a claim on this Court to secure to them all the beneficial consequences that would have resulted from them. And as Straas' interest in the Hope would have been amply sufficient to enable Hodgson to pay this premium note, had the money on the policy come into his hands, there is nothing unreasonable in making it, in the hands of the officer of this Court, subject to be disposed of in the same manner.\nLet it be distinctly understood, that the Court does not, in this decision, countenance the idea, that a separate debt may be set off to a joint action. The debtor and creditor at law are the same. And upon Hodgson's reducing the money into possession, the same identity of parties would exist. For Leeds and Straas do not appear in the case at all, in the relation of copartners in trade, but Leeds himself represents them as holding distinct interests, although in the same subject. Leeds' defence rests altogether on Straas' assignment, not on their blended rights, nor does he pretend to ignorance of the off-set now contended for, when he took the assignment, but only observes, with a view, it is presumed, to show he had no reason to believe it to be a subsisting debt, *572 that it was at that time enjoined before the Chancellor of Virginia. This is setting up a wrong in Straas to support a right in his assignee.\nDecree affirmed.\n", "ocr": false, "opinion_id": 85343 } ]	Supreme Court	Supreme Court of the United States	F	USA, Federal
591,775	null	1992-09-21	false	joseph-a-margiotta-v-ej-brennan-warden-fci-oxford	null	Joseph A. Margiotta v. E.J. Brennan, Warden, F.C.I. Oxford	null	null	null	null	null	null	null	null	null	null	null	null	0	Unpublished	null	null	[ "976 F.2d 735" ]	[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/976/976.F2d.735.91-1299.html", "author_id": null, "opinion_text": "976 F.2d 735\n NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.Joseph A. MARGIOTTA, Petitioner-Appellant,v.E.J. BRENNAN, Warden, F.C.I. Oxford, Respondent-Appellee.\n No. 91-1299.\n United States Court of Appeals, Seventh Circuit.\n Submitted Sept. 10, 1992.Decided Sept. 21, 1992.\n \n Before CUMMINGS, POSNER and MANION, Circuit Judges.\n \n ORDER\n \n 1\n Joseph A. Margiotta pleaded guilty to several counts of violating federal counterfeiting statutes. The district court sentenced Margiotta to a total of twenty-five years' imprisonment. During his initial incarceration in Monroe County Jail, Margiotta worked as an orderly but was denied extra good time credit for this work. Federal law bars such credit in the case of federal prisoners held in non-federal facilities unless the prisoner gets a recommendation due to meritorious work performance. 28 C.F.R. § 523.17(d). Margiotta received no such recommendation and thus was denied extra good time credit.\n \n \n 2\n Margiotta filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241. In his petition, he challenged the denial of good time credits by the Bureau of Prisons. More specifically, Margiotta claimed that the Bureau's policy violated the equal protection component of the due process clause of the Fifth Amendment because it treated prisoners held at non-federal facilities differently than those held at federal facilities. We affirm for the reasons stated in the attached order of the district court.\n \n \n 3\n AFFIRMED.\n \n ATTACHMENT\n IN THE UNITED STATES DISTRICT COURT\n FOR THE WESTERN DISTRICT OF WISCONSIN\n \n 4\n Joseph A. Margiotta, Petitioner,\n \n \n 5\n v.\n \n \n 6\n E.J. Brennan, Warden, F.C.I. Oxford, Respondent.\n \n ORDER\n 91-C-007-C\n \n 7\n Jan. 25, 1991.\n \n \n 8\n This is a petition for a writ of habeas corpus. Petitioner, an inmate at the Oxford Correctional Institution at Oxford, Wisconsin, claims that he is in custody in violation of the laws or Constitution of the United States. 28 U.S. § 2241. Petitioner has been granted leave to proceed in forma pauperis.\n \n \n 9\n In his petition and attached exhibits, petitioner alleges the following facts.\n \n Allegations of Fact\n \n 10\n On June 30, 1986, petitioner was arrested and charged with violations of federal counterfeiting statutes. On December 8, 1986, he pleaded guilty to several counts in satisfaction of all charges contained in the indictment. On February 7, 1987, petitioner was sentenced to a prison term of twenty-five years.\n \n \n 11\n From June 30, 1986 through July 9, 1987, petitioner was incarcerated at the Monroe County Jail in Rochester, New York.1 While there, petitioner was employed as an orderly. The Attorney General granted petitioner \"jail credit\" on his sentence for the time he spent in custody at the Monroe County Jail. However, petitioner was not recommended for \"extra good time\" status until July 10, 1987, when he was incarcerated and working as a cook at the Sandstone federal correctional institution. Petitioner has exhausted his administrative remedies concerning his claim for \"extra good time\" credit.\n \n Opinion\n \n 12\n Petitioner contends that respondents' failure to credit him with extra good time for the period of his incarceration at the Monroe County Jail violates his rights under the equal protection clause of the Fifth Amendment. Petitioner is attacking the constitutionality of the federal regulations or statutes which deny him \"extra good time\" credit from June 30, 1986 until July 10, 1987. Under the relevant statutes and regulations, extra good time is available to all working federal inmates whether they are housed in federal or non-federal facilities. However, the government has qualified the extra good time benefit by requiring that inmates in a non-federal institution first obtain the recommendation of a responsible person employed in that institution. Inmates who are housed in federal facilities and are on work or study release programs are automatically eligible for extra good time credit. Petitioner's complaint raises the issue whether a rational justification exists for the additional requirement placed on prisoners employed in non-federal facilities.2\n \n \n 13\n Petitioner's accumulation of good time and extra good time credits is governed by 18 U.S.C. §§ 4161 and 4162 and 28 C.F.R. §§ 523.1-523.17.3 Section 4161 creates \"statutory good time\" and gives prisoners serving a definite sentence the right to a deduction of up to ten days for each month of time served, depending on the length of the sentence. LaMagna v. United States Bureau of Prisons, 494 F.Supp. 189, 191 (D.Conn.1980); 28 C.F.R. § 523.1(a). The actual granting of statutory good time depends upon the good conduct of the inmate and is within the discretion of prison authorities. Id. Section 4162 gives the Attorney General, and through him or her the Bureau of Prisons, discretion to award \"extra good time\" of up to five days per month for \"employment in an industry or camp\" or as a reward for \"performing exceptionally meritorious service or performing duties of outstanding importance in connection with institutional operations.\" Id. A prisoner housed in a federal facility automatically earns extra good time while participating in work or study release programs, although such good time is subject to disallowance. 28 C.F.R. § 523.12. A working prisoner confined in a non-federal facility may earn extra good time if recommended by \"a responsible person employed by the non-federal facility\" and approved by federal staff. 28 C.F.R. § 523.17(d). Although 28 C.F.R. § 523.17(1) provides that a \"pretrial detainee may not earn good time while in pretrial status,\" a pretrial detainee may be recommended for good time credit.\n \n \n 14\n The purpose of statutory good time is \"to aid the rehabilitative process and to mitigate the severity of punishment by rewarding a prisoner for his good conduct.\" LaMagna, 494 F.Supp. at 191 (quoting DeSimone v. Norton, 404 F.Supp. 964, 967 (D.Conn.1975)); see also Short v. United States, 344 F.2d 550, 553-54 (D.C.Cir.1965) (statutory good time is important part of rehabilitative effort of the federal prisons). The congressional intent behind the extra good time statute was \"to encourage prisoners to accomplish work which would simultaneously benefit the penal institution and promote the rehabilitation of the prisoner.\" Cohen v. Ciccone, 318 F.Supp. 831, 836 (W.D.Mo.1970); see also LaMagna, 494 F.Supp. at 192.\n \n \n 15\n In analyzing an equal protection claim, a court must determine first whether the claim involves a suspect class or a fundamental right. Pryor v. Brennan, 914 F.2d 921, 923 (7th Cir.1990). This case involves neither. Neither prisoners in general nor prisoners housed in non-federal facilities in particular constitute a suspect classification and there is no fundamental right to be conditionally released before expiration of a valid sentence. Thus, I must apply the rational basis test to the different treatment afforded working prisoners housed in non-federal facilities and those housed in federal facilities, and uphold the statutory scheme if \"the classification drawn by the statute is rationally related to a legitimate state interest.\" Id.; see also McGinnis v. Royster, 410 U.S. 263, 270 (1973).\n \n \n 16\n In McGinnis, the United States Supreme Court considered whether a state statutory scheme that denied inmates good time credit for presentence incarceration in county jails violated the equal protection clause. The statutory scheme allowed prisoners who made bail prior to trial to earn good time credit for their entire period of incarceration before they began their incarceration in a state facility after sentencing. In contrast, the prisoners who served part of their sentence in city or county jails could not earn good time credit until they were transferred to a state institution after sentencing.\n \n \n 17\n Recognizing the rehabilitative purpose underlying the good time statutes, the Court found a rational justification for refusing to award good time credit for pretrial detainees in city and county facilities where no systematic rehabilitative programs existed and where state officials could not evaluate a prisoner's conduct. The Court upheld the challenged classification as rationally promoting the state's legitimate goal of affording state prison officials an adequate opportunity to evaluate an inmate's rehabilitative progress. McGinnis, 410 U.S. at 277.4\n \n \n 18\n The rationale of McGinnis provides the necessary justification for the distinction challenged in this case. As with the New York statutes upheld in McGinnis, rehabilitation is a legitimate purpose underlying the federal good time statutes. Without information from staff at non-federal facilities, federal officials have no opportunity to know whether prisoners housed in such facilities have participated in rehabilitative programs and they cannot evaluate the rehabilitative progress of such prisoners. See McGinnis, 410 U.S. at 273 (where no evaluation by state officials and little rehabilitative participation to evaluate, rational justification for declining to give good-time credit exists). By requiring a recommendation by a responsible staff person, the statutory scheme ensures that there is some legitimate basis for awarding extra good time to prisoners housed in non-federal facilities. There is a rational relationship to the government's legitimate rehabilitative purposes in the provision for automatic extra good time for working inmates housed in federal facilities and extra good time only upon recommendation for working inmates housed in non-federal facilities.\n \n \n 19\n Petitioner argues that it is unfair to deny him extra good time simply because, through no fault of his own, the federal facilities were so overcrowded that he had to be housed in a county jail. In Pryor, 914 F.2d at 925, the court of appeals upheld a system of awarding more favorable good time benefits to District of Columbia offenders housed in district institutions than to district offenders housed in federal facilities. The court found that the government could have logically reached the decision to award certain benefits only to those offenders housed in district facilities in order to balance the goals of reducing overcrowding, protecting the public, and avoiding administrative burdens. Id., at 925. The court refused to consider whether a better alternative existed. Id. (even if more effective alternative exists, statute is constitutional so long as it reflects one rational approach to the problem).\n \n \n 20\n I sympathize with petitioner's argument that he should not receive fewer benefits because of his apparently random placement in a county facility for over a year. However, because I find that the statutory scheme for awarding extra good time is a rational approach to the government's rehabilitative efforts, the scheme does not violate petitioner's constitutional rights. Accordingly, I will deny this petition.\n \n ORDER\n \n 21\n IT IS ORDERED that petitioner's petition for a writ of habeas corpus is DENIED with prejudice.\n \n BY THE COURT:\n Barbara B. Crabb\n BARBARA B. CRABB\n District Judge\n \n \n \n The U.S. Attorney for the Western District of Wisconsin declined to submit a brief in this appeal. After preliminary examination of petitioner-appellant's brief, the court notified the parties that it had tentatively concluded that oral argument would not be helpful to the court in this case. The notice provided that any party might file a \"Statement as to Need of Oral Argument.\" See Fed.R.App.P. 34(a); Cir.R. 34(f). No such statement having been filed, the appeal is submitted on petitioner-appellant's brief and the record\n \n \n 1\n The dates of petitioner's confinement in the Monroe County Jail appear in the September 26, 1990 response to petitioner's administrative appeal, attached to his petition as exhibit A\n \n \n 2\n The statutory scheme does not distinguish between pretrial detainees housed in federal and non-federal facilities. All pretrial detainees must be recommended before they can earn good time for the time they were incarcerated prior to sentencing. See 28 C.F.R. § 523.17(1). Petitioner does not have standing to challenge the additional requirement for pretrial detainees in federal prison. To the extent that petitioner is challenging the recommendation requirement for pretrial detainees in non-federal facilities, his claim overlaps with his general challenge to the treatment of working prisoners in non-federal facilities\n \n \n 3\n Although the statutes have been repealed, they remain applicable to individuals who committed a federal offense prior to November 1, 1987. See Historical and Statutory Notes to 18 U.S.C.A. §§ 4146-4166 (1990 Supp.). Petitioner committed his offense sometime prior to June 30, 1986, the date of his arrest\n \n \n 4\n Although the Court noted that federal courts had upheld the validity of language in an earlier version of 18 U.S.C. § 4161 that awarded good time only after sentencing and incarceration in a federal facility, the cases cited do not address an equal protection challenge to this language. See McGinnis, 410 U.S. at 273 n. 21\n \n \n ", "ocr": false, "opinion_id": 591775 } ]	Seventh Circuit	Court of Appeals for the Seventh Circuit	F	USA, Federal
591,538	null	1992-09-11	false	beverly-california-corp-v-national-labor-relations	null	Beverly California Corp. v. National Labor Relations Board	null	null	null	null	null	null	null	null	null	null	null	null	0	Unpublished	null	null	[ "976 F.2d 725" ]	[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/976/976.F2d.725_1.html", "author_id": null, "opinion_text": "976 F.2d 725\n 141 L.R.R.M. (BNA) 2312\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.\n BEVERLY CALIFORNIA CORPORATION, d/b/a Riverchase Health CareCenter, Petitioner,v.NATIONAL LABOR RELATIONS BOARD, Respondent.UNITED FOOD & COMMERCIAL WORKERS, Local 1657, Intervenor.NATIONAL LABOR RELATIONS BOARD, Petitioner,v.BEVERLY CALIFORNIA CORPORATION, d/b/a Riverchase Health CareCenter, Respondent.UNITED FOOD & COMMERCIAL WORKERS, Local 1657, Intervenor.\n \n Nos. 92-1068, 92-1205.\n United States Court of Appeals,Fourth Circuit.\n Argued: June 3, 1992Decided: September 11, 1992\n On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.\n Andrew Allen Peterson, JACKSON, LEWIS, SCHNITZLER & KRUPMAN, White Plains, New York, for Petitioner.\n Howard Elliott Perlstein, Supervisory Attorney, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Respondent.\n Thomas V. Walsh, JACKSON, LEWIS, SCHNITZLER & KRUPMAN, White Plains, New York, for Petitioner.\n Jerry M. Hunter, General Counsel, D. Randall Frye, Acting Deputy General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, Marilyn O'Rourke, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Respondent.\n \n \n 1\n George C. Longshore, LONGSHORE, NAKAMURA & QUINN, Birmingham, Alabama, for Intervenor.\n \n \n 2\n N.LR.B.\n \n \n 3\n ENFORCEMENT DENIED.\n \n \n 4\n Before HALL, Circuit Judge, BUTZNER, Senior Circuit Judge, and LEGG, United States District Judge for the District of Maryland, sitting by designation.\n \n PER CURIAM:\n OPINION\n \n 5\n In this case, the appellant, Beverly California Corporation d/b/a Riverchase Health Care Center (\"Riverchase\"), petitions for review of a Decision and Order of the National Labor Relations Board (the \"Board\") that licensed practical nurses (\"LPNs\") at Riverchase are \"employees\" under 29 U.S.C. § 157 (the\"Act\") and thus constitute an appropriate bargaining unit. The Board has filed a cross-application for enforcement of its order directing an election. For the reasons set forth below, we deny enforcement of the Board's order.\n \n \n 6\n The basis of this appeal is the distinction, under the Act, between \"employees\" and \"supervisors.\" This distinction is fundamental to labor law (and one often litigated) because employees have the right to self-organization and to bargain collectively while supervisors do not. 29 U.S.C. § 157. The Act specifically defines supervisor in section 157,* and in section 152(3) describes \"employee\" in generalized, residual terms.\n \n \n 7\n The Board, using the criteria set forth in section 157 and relying to a large extent on the reasoning in Waverly-Cedar Falls Health Care Center v. NLRB, 933 F.2d 626 (8th Cir. 1991), analyzed the natures and duties of the LPNs at Riverchase and determined that they were \"employees\" within the meaning of 29 U.S.C. § 157. Having found the LPNs to constitute an appropriate unit for collective bargaining, the Board then directed that an election be held.\n \n \n 8\n Generally, the court's role in reviewing decisions of the Board is a limited one, and the Board's factual findings will be accepted if supported by substantial evidence on the record as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951). Even under this deferential standard of review, we find the Board's analysis in this case to be contrary to our holding in NLRB v. St. Mary's Home, Inc., 690 F.2d 1062 (4th Cir. 1982), and thus reverse the Board's determination.\n \n \n 9\n On facts that can be distinguished in no material way from those now before us, this Court in St. Mary's Home found LPNs to be statutory supervisors, not employees. St. Mary's Home, 690 F.2d at 1069. While other circuits, on similar facts, have found various categories of nurses, including LPNs, to be \"employees,\" we are bound by our decision in St. Mary's Home. See Waverly-Cedar Falls, 933 F.2d at 629-31 (licensed practical nurses held to be employees); NLRB v. Res-Care, Inc., 705 F.2d 1461, 1468 (7th Cir. 1983) (licensed practical nurses held to be employees); Misercordia Hosp. Medical Ctr. v. NLRB, 623 F.2d 808, 816-18 (2d Cir. 1980) (head nurse held to be employee); and NLRB v. St. Francis Hosp. of Lynwood, 601 F.2d 404, 420-22 (9th Cir. 1979) (assistant head nurses held to be employees). Accordingly, we find that the licensed practical nurses in this case are supervisors under the Act, and, therefore, do not, and cannot, constitute an appropriate unit for collective bargaining.\n \n \n 10\n For these reasons, we deny enforcement of the Board's order directing an election.\n \n ENFORCEMENT DENIED\n \n \n *\n A supervisor is defined as,\n any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action,\" provided that exercise of such activity\"is not of a merely routine or clerical nature, but requires the use of independent judgment.\n 29 U.S.C. § 152(11). We read this statutory definition in the disjunctive.\n \n \n ", "ocr": false, "opinion_id": 591538 } ]	Fourth Circuit	Court of Appeals for the Fourth Circuit	F	USA, Federal
263,951	Friendly, Lumbard, Waterman	1964-04-13	false	commissioner-of-internal-revenue-v-pfaudler-inter-american-corporation	null	Commissioner of Internal Revenue v. Pfaudler Inter-American Corporation	COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. PFAUDLER INTER-AMERICAN CORPORATION, Respondent	Harold C. Wilkenfeld, Dept. of Justice, Washington, D. C. (John B. Jones, Jr., Acting Asst. Atty. Gen., Lee A. Jackson and Martin B. Cowan, Dept. of Justice, Washington, D. C., on the brief), for petitioner., John C. Reid, Washington, D. C. (Ivins, Phillips & Barker, Washington, D. C., and Scott Stewart, Jr., Nixon, Hargrave, Devans & Doyle, Rochester, N. Y., on the brief), for respondent.	null	null	null	null	null	null	null	Argued Feb. 13, 1964.	null	null	3	Published	null	<parties data-order="0" data-type="parties" id="APF"> COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. PFAUDLER INTER-AMERICAN CORPORATION, Respondent. </parties><br><docketnumber data-order="1" data-type="docketnumber" id="b523-10"> Nos. 277, 278, Dockets 28459, 28460. </docketnumber><br><court data-order="2" data-type="court" id="b523-11"> United States Court of Appeals Second Circuit. </court><br><otherdate data-order="3" data-type="otherdate" id="b523-12"> Argued Feb. 13, 1964. </otherdate><br><decisiondate data-order="4" data-type="decisiondate" id="b523-13"> Decided April 13, 1964. </decisiondate><br><attorneys data-order="5" data-type="attorneys" id="b524-21"> <span citation-index="1" class="star-pagination" label="472"> *472 </span> Harold C. Wilkenfeld, Dept. of Justice, Washington, D. C. (John B. Jones, Jr., Acting Asst. Atty. Gen., Lee A. Jackson and Martin B. Cowan, Dept. of Justice, Washington, D. C., on the brief), for petitioner. </attorneys><br><attorneys data-order="6" data-type="attorneys" id="b524-22"> John C. Reid, Washington, D. C. (Ivins, Phillips & Barker, Washington, D. C., and Scott Stewart, Jr., Nixon, Hargrave, Devans & Doyle, Rochester, N. Y., on the brief), for respondent. </attorneys><br><p data-order="7" data-type="judges" id="b524-23"> Before LUMBARD, Chief Judge, WATERMAN and FRIENDLY, Circuit Judges. </p>	[ "330 F.2d 471" ]	[ { "author_str": "Lumbard", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/330/330.F2d.471.277.278.28459.28460.html", "author_id": null, "opinion_text": "330 F.2d 471\n COMMISSIONER OF INTERNAL REVENUE, Petitioner,v.PFAUDLER INTER-AMERICAN CORPORATION, Respondent.\n No. 277.\n No. 278.\n Docket 28459.\n Docket 28460.\n United States Court of Appeals Second Circuit.\n Argued February 13, 1964.\n Decided April 13, 1964.\n \n Harold C. Wilkenfeld, Dept. of Justice, Washington, D. C. (John B. Jones, Jr., Acting Asst. Atty. Gen., Lee A. Jackson and Martin B. Cowan, Dept. of Justice, Washington, D. C., on the brief), for petitioner.\n John C. Reid, Washington, D. C. (Ivins, Phillips & Barker, Washington, D. C., and Scott Stewart, Jr., Nixon, Hargrave, Devans & Doyle, Rochester, N. Y., on the brief), for respondent.\n Before LUMBARD, Chief Judge, WATERMAN and FRIENDLY, Circuit Judges.\n LUMBARD, Chief Judge:\n \n \n 1\n The sole question presented on this appeal is whether the taxpayer, Pfaudler Inter-American Corporation, qualifies under the Internal Revenue Codes of 1939 and 1954 as a Western Hemisphere trade corporation so as to be entitled to the credit established in § 26(i)1 of the 1939 Code, the exemption from excess profits tax granted by § 454 (f)2 of the 1939 Code, and the deduction granted in § 9223 of the 1954 Code. The Commissioner here petitions for review of a decision of the Tax Court which resolved this question in the affirmative and held that there were no deficiencies in income tax due from the taxpayer for fiscal years ending on May 31 in 1954, 1955, 1956 and 1957, the period from June 1 to December 31, 1957, and the calendar year 1958. Jurisdiction lies in this case by reason of § 7482 of the 1954 Code because the taxpayer's income tax returns for each of the taxable periods here involved were filed with the District Director of Internal Revenue at Buffalo, New York. We affirm the judgment of the Tax Court.\n \n \n 2\n Pfaudler is a wholly-owned subsidiary of Pfaudler Permutit, Inc. (the parent), which is engaged in the manufacture and sale of equipment for breweries, dairies and other industrial plants. In 1953 Pfaudler was organized as a New York corporation with the avowed purpose of qualifying as a Western Hemisphere trade corporation to obtain the concomitant tax benefits. Under an agreement executed at that time, the parent granted Pfaudler the exclusive right to sell the parent's products in countries of the Western Hemisphere other than the United States.\n \n \n 3\n Thereafter Pfaudler purchased merchandise exclusively from the parent and maintained no supply of merchandise or other permanent place of business outside of the United States. Pfaudler had no employees located in foreign countries, with the exception of one salesman in Canada after June 1, 1957. It conducted business through independent sales representatives in the foreign countries of the Western Hemisphere who solicited orders and forwarded them to Pfaudler's office in Rochester, New York. Agents in foreign countries endorsed the bills of lading and insurance certificates and delivered them to Pfaudler's foreign customers. In some instances the sales representatives also acted as endorsing agents.\n \n \n 4\n Title to the goods passed from the parent to Pfaudler when they were shipped from the parent's factory or warehouse. The printed notice of acceptance, issued by Pfaudler to its customers upon receipt of their orders, contained a standard provision stating that title to, possession of, and control over the merchandise — as well as the risk of loss or damage — remained with Pfaudler until arrival of the merchandise at the stipulated point of destination in the foreign country.4\n \n \n 5\n Section 109 of the 1939 Code and § 921 of the 1954 Code in almost identical terms establish three qualifications for a Western Hemisphere trade corporation: that it do all of its business \"in any country or countries in North, Central, or South America, or in the West Indies\"; that it derive 95 per cent or more of its gross income for the three years preceding the taxable year from sources without the United States; and that it derive 90 per cent or more of its gross income for such period from the active conduct of a trade or business.\n \n \n 6\n The Commissioner launches a two-pronged assault on the Tax Court's finding that Pfaudler satisfied these qualifications: first, he argues that the statute should be construed as applicable only to corporations whose trade or business is conducted primarily outside the United States, a condition which Pfaudler failed to meet, and second, he argues that under the \"substance of the sale\" test, which he claims should be applied, the taxpayer did not derive 95 per cent of its gross income from sources without the United States.\n \n \n 7\n We see no cause to depart from the precedent established by the five courts — two courts of appeals, one district court, the Court of Claims, and the Tax Court — which have considered and rejected essentially the same claims advanced here by the Commissioner. Frank v. International Canadian Corp., 308 F.2d 520 (9 Cir. 1962), affirming 61-1 USTC ¶ 9405 (W.D.Wash.1961); A. P. Green Export Co. v. United States, 284 F.2d 383 (Ct.Cl.1960); Barber-Greene Americas, Inc., 35 T.C. 365 (1961); Pan American Eutectic Welding Alloys Co., 36 T.C. 284 (1961); Babson Bros. Export Co., 22 CCH Tax Ct.Mem. 677 (1963). Most recently, the United States Court of Appeals for the Seventh Circuit ruled that a corporation doing business in substantially the same manner as Pfaudler qualified as a Western Hemisphere trade corporation. Commissioner of Internal Revenue v. Hammond Organ Western Export Corp., 327 F.2d 964 (7 Cir. 1963).\n \n \n 8\n The Commissioner's contention that Pfaudler is disqualified as a Western Hemisphere trade corporation because the active conduct of its business is carried on in the United States ignores the very statutory language which we must apply. The statutory provision clearly defines a Western Hemisphere trade corporation — one which does all of its business \"in any country or countries in North, Central, or South America, or in the West Indies\" — to include a corporation which has its place of business in the United States. There is thus no warrant for delving into the legislative history and other documentation which the Commissioner offers and which, in any event, is at best inconclusive on the point in issue. Neither, as the Commissioner suggests, would it be irrational for Congress to grant tax benefits to corporations which compete primarily with foreign business corporations without having plants abroad as well as to those that do.\n \n \n 9\n The Commissioner's alternative contention that the taxpayer did not derive 95 per cent of its income from sources without the United States is no more persuasive. Section 119(e) of the 1939 Code and § 862(a) (6) of the 1954 Code provide that income derived from the purchase of personal property within the United States and its sale without the United States shall be treated as income from sources without the United States. The Commissioner would have us depart from the established rule that a sale is to be deemed consummated in the country where title and the other incidents of ownership pass to the vendee and substitute in its place the \"substance of the sale\" test which looks \"to the realistic commercial and economic factors in determining where the tax-meaningful incidence of a sale takes place.\" Here, the Commissioner contends, only incidental business activities occurred outside the United States and therefore the United States was the country in which the sales took place and consequently the source of the taxpayer's income. We disagree.\n \n \n 10\n We believe in this case that it is better to apply the \"passage of title\" test, which is supported by much precedent.5 This rule provides a measure of certainty upon which corporations may plan their contracts, and indeed their business operations, with an eye to the tax benefits attendant upon qualifying as a Western Hemisphere trade corporation. By contrast, the \"substance of the sale\" test set out in Treasury Regulation § 1.861-7 (1957) — which provides that \"all factors of the transaction, such as negotiations, the execution of the agreement, the location of the property, and the place of payment, will be considered, and the sale will be treated as having been consummated at the place where the substance of the sale occurred\" — is vague and uncertain. See United States v. Balanovski, 236 F.2d 298 (2 Cir. 1956). The Commissioner's reliance on the 1957 Treasury Regulation is misplaced, inasmuch as the regulation applies solely to cases \"in which the sales transaction is arranged in a particular manner for the primary purpose of tax avoidance.\" It is not tax avoidance in this sense to take advantage of a provision of law especially enacted to favor those who do business in a certain area of the world and who otherwise meet the statutory conditions as Pfaudler does. It is clear that Pfaudler's sales were no mere shams; retention of title carried with it the risk of loss or damage to the goods prior to ultimate delivery as well as the benefits linked to reservation of control over the goods while in transit.\n \n \n 11\n The decision of the Tax Court is accordingly affirmed.\n \n \n \n Notes:\n \n \n 1\n Section 26 of the 1939 Code provides:\n \"CREDITS OF CORPORATIONS.\n \"In the case of a corporation the following credits shall be allowed to the extent provided in the various sections imposing tax —\n \"(i) Western Hemisphere Trade Corporations. — In the case of a western hemisphere trade corporation (as defined in section 109) —\n * * * * * \n \"(2) Taxable years beginning after March 31, 1951, and before April 1, 1954. — In the case of a taxable year beginning after March 31, 1951, and before April 1, 1954, an amount equal to 27 per centum of its normal-tax net income computed without regard to the credit provided in this subsection.\"\n \n \n 2\n Section 454 of the 1939 Code provides:\n \"EXEMPT CORPORATIONS.\n \"The following corporations, except a member of an affiliated group of corporations filing a consolidated return under section 141, shall be exempt from the tax imposed by this subchapter: * *\n \"(f) Domestic corporations satisfying the following conditions:\n \"(1) If 95 per centum or more of the gross income of such domestic corporation for the three-year period immediately preceding the close of the taxable year (or for such part of such period during which the corporation was in existence) was derived from sources other than sources within the United States; and\n \"(2) If 50 per centum or more of its gross income for such period or such part thereof was derived from the active conduct of a trade or business.\"\n \n \n 3\n Section 922 of the 1954 Code provides:\n \"SPECIAL DEDUCTION.\n \"In the case of a Western Hemisphere trade corporation there shall be allowed as a deduction in computing taxable income an amount computed as follows —\n \"(1) First determine the taxable income of such corporation computed without regard to this section.\n \"(2) Then multiply the amount determined under paragraph (1) by the fraction —\n \"(A) the numerator of which is 14 percent, and\n \"(B) the denominator of which is that percentage which equals the sum of the normal tax rate and the surtax rate for the taxable year prescribed by section 11.\"\n \n \n 4\n A more detailed exposition of the business operation which Pfaudler conducted is set out in the opinion of the Tax Court, 22 CCH Tax Ct.Rep.Dec. 26,071 (M) (April 17, 1963)\n \n \n 5\n See Frank v. International Canadian Corp., supra; Commissioner v. Hammond Organ Western Export Corp., supra; A. P. Green Export Co. v. United States, supra; Barber-Greene Americas, Inc., supra; Pan American Eutectic Welding Alloys Co., supra; Babson Bros. Export Co., supra\n \n \n ", "ocr": false, "opinion_id": 263951 } ]	Second Circuit	Court of Appeals for the Second Circuit	F	USA, Federal
2,678,721	Durham, Durrant	2014-06-17	false	wisan-v-city-of-hildale	Wisan	Wisan v. City of Hildale	Bruce R. WISAN, Plaintiff and Appellee, v. CITY OF HILDALE and Twin City Water Authority, Defendants and Appellants	Jeffrey L. Shields, Zachary T. Shields, Michael C. Walch, Michael D. Stanger, Nathan R. Denney, Salt Lake City, for appellee., Peter Stirba, R. Blake Hamilton, Salt Lake City, for appellants.	null	null	null	null	null	null	null	null	null	null	4	Published	null	<citation id="AgT"> 2014 UT 20 </citation><parties id="AfR"> Bruce R. WISAN, Plaintiff and Appellee, v. CITY OF HILDALE and Twin City Water Authority, Defendants and Appellants. </parties><docketnumber id="A34"> No. 20100993. </docketnumber><court id="AdU"> Supreme Court of Utah. </court><decisiondate id="AYm"> June 17, 2014. </decisiondate><attorneys id="AaBn"> Jeffrey L. Shields, Zachary T. Shields, Michael C. Walch, Michael D. Stanger, Nathan R. Denney, Salt Lake City, for appellee. </attorneys><attorneys id="AWM"> Peter Stirba, R. Blake Hamilton, Salt Lake City, for appellants. </attorneys>	[ "2014 UT 20", "330 P.3d 76" ]	[ { "author_str": "Durham", "per_curiam": false, "type": "010combined", "page_count": 11, "download_url": "http://www.utcourts.gov/opinions/supopin/Wisan142020140617.pdf", "author_id": null, "opinion_text": " This opinion is subject to revision before final\n publication in the Pacific Reporter\n\n\n 2014 UT 20\n\n IN THE\n\n S UPREME C OURT OF THE S TATE OF U TAH\n BRUCE R. WISAN ,\n Plaintiff and Appellee,\n v.\n CITY OF HILDALE and TWIN CITY WATER AUTHORITY,\n Defendants and Appellants.\n\n No. 20100993\n Filed June 17, 2014\n\n Fifth District, St. George Dep’t\n The Honorable James L. Shumate\n No. 070500105\n\n Attorneys:\n Jeffrey L. Shields, Zachary T. Shields, Michael C. Walch,\n Michael D. Stanger, Nathan R. Denney, Salt Lake City,\n for appellee\n Peter Stirba, R. Blake Hamilton, Salt Lake City, for appellants\n\n JUSTICE DURHAM authored the opinion of the Court, in which\n CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING ,\n JUSTICE PARRISH , and JUSTICE LEE joined.\n\nJUSTICE DURHAM , opinion of the Court:\n INTRODUCTION\n ¶1 This case comes to us as another installment in the ongoing\ndispute surrounding land owned by the United Effort Plan Trust\n(Trust) located in Hildale, Utah. In early 2007, appellee Bruce Wisan,\ncourt-appointed trustee of the Trust, filed a complaint against the\nCity of Hildale (Hildale) and the Twin City Water Authority\n(TCWA) to compel the subdivision of certain parcels of Trust\nproperty located within Hildale’s boundaries. When Hildale and\nTCWA failed to appear or answer the complaint, Mr. Wisan moved\nfor entry of default judgment against both parties, which the district\ncourt granted. Appellants subsequently filed a rule 60(b) motion in\nthe district court to set aside the default judgment. While that\nmotion was pending, appellants filed this direct appeal from the\ndefault judgment. The district court ultimately denied appellants’\nrule 60(b) motion; appellants never appealed from that denial.\n\f BRUCE R. WISAN v. CITY OF HILDALE\n Opinion of the Court\n\n ¶2 Litigants may challenge a default judgment either by filing\na rule 60(b) motion with the district court or by appealing the default\njudgment directly. The choice of which course to follow will depend\non the reasons alleged for seeking relief from the judgment. The\nproper grounds for a direct appeal from a default judgment are\nnecessarily limited to those that were necessarily decided by the\ndistrict court as a prerequisite to entry of default judgment. The\nproper grounds for a rule 60(b) motion, in contrast, are limited to\nthose listed in the rule. Because this direct appeal from the default\njudgment relies exclusively on 60(b) arguments, which were made\nto the district court in a postjudgment motion and disposed of in an\nunappealed order, we dismiss this direct appeal as the incorrect\nvehicle for relief and allow the default judgment to stand.\n BACKGROUND\n ¶3 The land in Hildale, Utah, most of which is currently owned\nby the United Effort Plan Trust, has been the subject of numerous\ndisputes for over two decades.1 The Trust was originally created in\n1942 by the spiritual leadership of a fundamentalist religious\nmovement called the “Priesthood Work”—predecessors of the\nFundamentalist Church of Jesus Christ of Latter-day Saints (the\nChurch or FLDS). The Trust was created as a depository into which\nthe movement’s adherents could contribute or “consecrate” their\nproperty to be managed centrally by Church leaders acting as\ntrustees of the Trust. In addition to their role as trustees, FLDS\nleadership also exerted substantial influence on the civic affairs of\nHildale.\n ¶4 Over the ensuing years, the Trust acquired the majority of\nthe land and improvements in Hildale through contributions from\nChurch members, but the Church leadership trustees allowed the\ncontributing residents to continue living on the land. A few decades\nafter the Trust’s creation, however, several Trust property residents\nsued the trustees for breach of fiduciary duty, which set in motion\na protracted chain of litigation involving the nature and\nadministration of the Trust.\n ¶5 A primary concern in that litigation was whether the actions\n(or inactions) of the Church leadership trustees had harmed the\n\n 1\n For a more extensive history surrounding the land in Hildale,\nUtah, the creation of the Trust, and the subsequent litigation left in\nits wake, see Jeffs v. Stubbs 970 P.2d 1234, 1239 (Utah 1998) and\nFundamentalist Church of Jesus Christ of Latter-day Saints v. Lindberg,\n2010 UT 51, ¶¶ 2–22, 238 P.3d 1054.\n\n 2\n\f Cite as: 2014 UT 20\n Opinion of the Court\n\ninterests of Trust property residents. That concern came to a head\nwhen the Church leadership trustees left the Trust and its\nbeneficiaries vulnerable to default judgments by failing to retain\ncounsel to defend the Trust in litigation. In response, and at the\nbehest of the attorney general of Utah, the district court removed the\nChurch leadership trustees and appointed a special fiduciary in their\nstead. The newly appointed fiduciary was given specific instructions\nto administer the Trust according to the Trust beneficiaries’ “just\nwants and needs” on a neutral, nonreligious basis. In particular, the\ncourt ordered the trustee to (a) work toward the payment of the\nTrust property taxes, (b) request and collect money for the payment\nof taxes from persons residing on Trust property, and (c) take action\nto remove persons who refuse to pay their fair share of property\ntaxes from Trust property.\n ¶6 Shortly after the special appointment, Warren Jeffs, then\nleader of the FLDS Church, made official pronouncements that\ndirected his adherents to refuse to cooperate with the Trust or the\ncourt-appointed trustee, specifically declaring that “we must\ncontinue to answer them nothing and not give into [sic] their\nproposals.” Mr. Jeffs further stated that it was his intention “not [to]\ncompromise [with the trustee] in the slightest degree” and “not [to]\nwork out differences.”\n ¶7 The court later appointed Mr. Wisan as the successor\ntrustee. In the exercise of his duties, Mr. Wisan became aware that\nmultiple housing structures existed on most of the tax parcels\nlocated in Hildale. In many cases, these housing structures belonged\nto multiple individuals or families, some members of the dominant\nFLDS religion, and some not. Because Washington County, where\nHildale is located, assesses and collects taxes according to the legally\ndescribed parcels, the various residents of each tax parcel shared the\nproperty tax obligation. As a result, nonpayment of taxes by any one\nresident subjected all of the other residents living on that same tax\nparcel to the imposition of penalties, interest, and eventually loss of\nthe property to a tax sale.2\n ¶8 In light of this situation, Mr. Wisan determined it would be\nprudent to subdivide the Trust property. The conceptualized\nsubdivisions would divide the existing tax parcels into separate legal\n\n 2\n In fact, because certain Trust beneficiaries refused to pay\nproperty taxes, the Trust came perilously close to losing the bulk of\nits Hildale property. It was spared this result when, only days before\nthe County’s scheduled property tax sale, several large property tax\npayments cured the default.\n\n 3\n\f BRUCE R. WISAN v. CITY OF HILDALE\n Opinion of the Court\n\nlots. The primary goal of this subdivision plan was to allow the Trust\nto distribute separately described pieces of property to Trust\nbeneficiaries, thus allowing them to remain free from the risk of\nlosing their property as a result of their neighbors’ tax delinquency.\nMoreover, subdivision would facilitate the trustee’s ability to\nmonitor tax payments connected to each individual housing\nstructure in accordance with the trustee’s court-ordered duties.\n ¶9 On numerous occasions, Mr. Wisan consulted with Hildale’s\nmayor David Zitting regarding the proposed subdivision, in hopes\nof eventually securing the city’s approval. Although Mayor Zitting\nstated it was his personal opinion that subdividing the property into\nseparate legal lots might be good for city management, he stressed\nthat, for nonspecific reasons, he could not cooperate with Mr. Wisan\nas court-appointed trustee. Notwithstanding Mayor Zitting’s lack of\ncooperation, Mr. Wisan continued to develop the subdivision plan,\nincurring engineering fees in excess of $1 million to prepare the\nsubdivision plats. Finally, on December 13, 2006, Mr. Wisan\nsubmitted a completed application together with the subdivision\nplats to Hildale for approval as required under Utah law. UTAH\nCODE §§ 10-9a-603(3), (4)(a). Hildale, however, remained\nuncooperative. Hildale’s counsel explained to Mr. Wisan that the\ncity “ha[d] elected to abstain from taking any action with respect to\nthe petition to subdivide the property,”3 but “w[ould] not defend or\nobject to . . . the entry of a court order granting a petition to . . .\nsubdivide the property.”\n ¶10 Mr. Wisan accordingly filed a complaint against Hildale on\nJanuary 17, 2007, requesting either (a) a writ of mandamus to compel\nHildale to consider the subdivision application, or (b) declaratory\njudgment directing the Washington County recorder to record the\nproposed subdivision plats without formal city approval. Mr. Wisan\nalso joined TCWA as a defendant because he believed TCWA was\nthe culinary water authority for Hildale, whose approval was\nnecessary under Utah law to validate the subdivision plan.4\n\n 3\n Mr. Wisan inferred from the statements of Mayor Zitting and\nHildale’s counsel that Hildale’s noncooperation was a product of\nMr. Jeffs’s official pronouncements directing FLDS followers to\n“answer [the trustee] nothing” and to refuse to “compromise . . . in\nthe slightest degree.”\n 4\n Mr. Wisan also joined Russell Shirts, the Washington County\nrecorder, as a defendant in this case. Mr. Shirts filed a timely answer.\nBut after the public works director for Washington County reviewed\n (continued...)\n\n 4\n\f Cite as: 2014 UT 20\n Opinion of the Court\n\nSee UTAH CODE § 10-9a-603(2)(a). Two copies of the summons and\ncomplaint were properly served on Mayor Zitting, one in his\ncapacity as registered agent of Hildale, and the other in his capacity\nas registered agent of TCWA. But, consistent with the\ncommunications from Mayor Zitting and Hildale’s counsel, neither\nHildale nor TCWA opposed the complaint by filing a timely\nresponse. As a result, on February 27, 2007, the court entered default\nagainst both Hildale and TCWA under rule 55(a) of the Utah Rules\nof Civil Procedure.\n ¶11 Nevertheless, in an effort to maintain a working relationship\nwith the city, Mr. Wisan refrained from immediately petitioning the\ncourt for default judgment. Instead, he continued to work with the\ncounty’s engineers and surveyors to prepare acceptable subdivision\nplats.5 Mr. Wisan also sent a letter to Mayor Zitting proposing a five-\nmonth timetable to negotiate with the city and come to a voluntary\nagreement regarding subdivision. In light of the city’s prior lack of\ncooperation, Mr. Wisan also noted that if no voluntary agreement\ncould be reached, he would simply petition the court for entry of\ndefault judgment. Mr. Wisan finished his letter by requesting a\ntimely response to the proposed five-month timetable and asked the\ncity to propose any other viable alternatives it deemed preferable.\nMayor Zitting never responded.\n ¶12 Around this same time, and in an abrupt change of course,\nMr. Jeffs sent a letter to his followers instructing them to cease\npassively ignoring the appointed fiduciary and to instead retain\nlegal counsel and demand “protection of their rights.” Such action,\nhe said, would appear to be the work of individuals rather than the\nauthorities of the Church, creating the impression that “the\nPriesthood is answering them nothing, but at the same time\nindividuals are demanding their rights of protection.” In the\nfollowing weeks, Mr. Wisan perceived what he described as more\nardent opposition from city leaders regarding the subdivision plan.\nUnable to obtain the city’s cooperation, Mr. Wisan instead secured\nWashington County’s stipulation to entry of default judgment and\nmoved the district court for entry of default judgment against\nHildale and TCWA.\n\n 4\n (...continued)\nand approved the subdivision plat, Mr. Shirts stipulated to entry of\na judgment ordering him to record the subdivision plat.\n 5\n Washington County ultimately certified all of the plats for\ntechnical correctness and approved them for recording in “as is”\ncondition.\n\n 5\n\f BRUCE R. WISAN v. CITY OF HILDALE\n Opinion of the Court\n\n ¶13 In response, Hildale and TCWA jointly filed a preemptory\nopposition to default judgment in which both parties acknowledged\ntheir “decision not to file a formal answer to the complaint” but\nalleged that default judgment was still improper because the\nMr. Wisan had failed to comply with state and local law regarding\nthe subdivision process. A few days later, TCWA retained separate\ncounsel6 and independently made a second motion, this time\npetitioning the court to vacate its rule 55(a) entry of default.7\nApparently unaware of TCWA’s objections, however, Judge Ludlow\nordered default judgment against both Hildale and TCWA. Judge\nLudlow later recused himself, and the case was reassigned to Judge\nShumate, who vacated the default judgment8 but preserved and took\nunder advisement the question of entry of default in hopes that\ndoing so would “bring everybody to the table” and “push [the\nparties] towards . . . [voluntary] resolution” of the subdivision\ndispute.9 Judge Shumate cautioned, however, that if he continued to\nsee “obstreperous behavior” from TCWA, he “could still make a\nruling on [the entry of default],” which would essentially foreclose\nnegotiations and compel TCWA to comply with a resulting default\njudgment.\n\n 6\n Hildale ultimately hired the same counsel as TCWA but did so\nmuch later, in August 2010. Until that time, Hildale did not attempt\nto set aside the entry of default (under rule 55(c)) or the subsequent\nentry of default judgment (under rule 60(b)).\n 7\n In doing so, TCWA incorrectly relied on rule 60(b)’s standards\nfor relief rather than rule 55(c)’s standard of “good cause shown.”\nrule 60(b)’s standards govern relief only from default judgment\nunder rule 55(b), while rule 55(c)’s “good cause” standard governs\nrelief from an entry of default under rule 55(a). This distinction is\nmade clear in rule 55(c) which declares that “[f]or good cause shown\nthe court may set aside an entry of default and, if a judgment by\ndefault has been entered, may likewise set it aside in accordance\nwith [r]ule 60(b).”\n 8\n Judge Shumate apparently based his decision to vacate solely on\nthe technical ground that the default judgment failed to include a\ncopy of the subdivision plat it had ordered Washington County to\nrecord and was therefore “basically . . . meaningless.” The record\nreflects that the court’s decision did not have anything to do with the\nmerits of TCWA’s arguments.\n 9\n The court was clear that “the resolution we all seek is that\n[TCWA] ha[s] a chance to have input, [so it] can then feel satisfied\nthat [it has] done [its] responsibility under the law and can sign off\non the plat.”\n\n 6\n\f Cite as: 2014 UT 20\n Opinion of the Court\n\n ¶14 The parties thereafter met multiple times to discuss the\nsubdivision issue, but after months of unsuccessful negotiations,\nMr. Wisan requested that the court render a final decision on his\noriginal default judgment petition. On October 12, 2010, the court\nheld a hearing on Mr. Wisan’s default judgment petition and\nTCWA’s prior motion to set aside the rule 55(a) entry of default. At\nthe hearing, Judge Shumate noted that his “original intention in\ntaking the matter under submission for over two years” was to\nencourage “the parties [to] reach[] a settlement,” but, given that it\nwas “well-established that this matter is in default,” the court orally\ndeclared that “the motion to set aside the [entry of default] . . . is . . .\ndenied and a default judgment may enter.”\n ¶15 Following the court’s oral announcement, Hildale and\nTCWA immediately filed a preemptory rule 60(b) motion for relief\nfrom the impending judgment. The district court did not rule on this\nmotion before entering default judgment against Hildale and TCWA\non November 3, 2010.10 Both Hildale and TCWA filed a notice of\ndirect appeal from the default judgment on November 29, 2010.\nWhile this appeal was pending, and nearly three years after default\njudgment was entered, the district court finally denied Hildale and\nTCWA’s rule 60(b) motion on July 3, 2013.11 Neither party filed an\nappeal from that denial.\n ¶16 On appeal, Hildale and TCWA allege that the district court\nerred by entering default judgment against them. Hildale and\nTCWA attempt to rely on rule 60(b) as the vehicle for relief, arguing\nthat the default judgment should be set aside because the fiduciary\ndid not act in good faith in pursuing default judgment and because\nMayor Zitting, though registered agent for both parties, did not\nknow he needed to give both parties notice of the complaint against\nthem. Alternatively, Hildale and TCWA argue that the default\njudgment should be vacated because recording the plats would be\ncontrary to public policy. Because we dismiss this appeal on\nprocedural grounds, we do not reach the merits of these arguments.\n\n\n\n 10\n Default judgment was also entered by stipulation against the\nWashington County recorder, who was ordered to immediately\nrecord the subdivision plat attached to the default judgment.\n 11\n The delay was largely due to an order filed by the federal\ndistrict court staying any further proceedings in this case pending\nresolution of the FLDS Church’s motion to intervene in a federal case\non free exercise grounds.\n\n 7\n\f BRUCE R. WISAN v. CITY OF HILDALE\n Opinion of the Court\n\n ANALYSIS\n ¶17 Rule 55 of the Utah Rules of Civil Procedure governs the\nprocess for obtaining a default judgment against a party that fails to\nappear or answer a complaint. “When a party against whom a\njudgment . . . is sought has failed to plead or otherwise defend . . .\nthe clerk shall enter the default of that party.” UTAH R. CIV . P. 55(a).\nAlthough “a defendant’s failure to appear warrants an entry of\ndefault,” it “does not automatically entitle a plaintiff to a default\njudgment.” Pennington v. Allstate Ins. Co., 973 P.2d 932, 940 (Utah\n1998) (emphasis in original). After the clerk enters default, the\nnondefaulting party must then petition either the clerk or the\ncourt—depending on the circumstances—to enter judgment against\nthe defaulting party.12 UTAH R. CIV . P. 55(b). The clerk or the court\nmay then enter default judgment, but “only if the well-pled facts\nshow that the plaintiff is entitled to judgment as a matter of law.”\nPennington, 973 P.2d at 940 (internal quotation marks omitted).\n ¶18 If the aggrieved party challenges the entry of default before\nthe judgment is entered, the court may set aside the entry of default\n“[f]or good cause shown.” UTAH R. CIV . P. 55(c). However, if a\ndefault judgment has already been entered, the defaulting party has\ntwo options for seeking relief from the judgment: it may (1) directly\nappeal the default judgment and/or (2) file a rule 60(b) motion with\nthe district court.\n ¶19 The circumstances warranting a direct appeal from a\ndefault judgment are very limited. A party challenging a default\njudgment on direct appeal may raise only grounds that were\nnecessarily decided by the district court in the entry of default\njudgment. Those grounds are (1) whether default was properly\nentered against a party under rule 55(a),13 (2) whether the\n\n 12\n The nondefaulting party may petition the clerk, rather than the\ncourt, for entry of judgment only if: (1) the defendant’s default is for\nfailure to appear, (2) the defendant is not an infant or incompetent\nperson, (3) the defendant has been personally served pursuant to\nrule 4(d)(1), and (4) the claim against the defendant is for a sum\ncertain or for a sum that can be made certain by computation. UTAH\nR. CIV . P. 55(b)(1). Under all other circumstances, the nondefaulting\nparty may petition the court to enter default judgment.\n 13\n P&B Land, Inc. v. Klungervik, 751 P.2d 274, 276–77 (Utah Ct. App.\n1988) (“No default judgment may be entered . . . unless default has\npreviously been entered. . . . [T]he entry of default is an essential\npredicate to any default judgment.” (footnote, citation, and internal\n (continued...)\n\n 8\n\f Cite as: 2014 UT 20\n Opinion of the Court\n\ncomplaint’s well-pled facts demonstrate that the plaintiff is entitled\nto judgment as a matter of law,14 and (3) whether the relief granted\nis consistent in kind and amount with the complaint’s prayer for\nrelief and is within the district court’s authority to grant.15\n ¶20 In contrast, the grounds under which a 60(b) challenge may\nbe brought are both inclusive of the above grounds and also more\nexpansive. If the defaulting party moves the district court to set\naside the default judgment under rule 60(b), the court “may in the\nfurtherance of justice relieve a party or his legal representative from\n[that] judgment” for reasons including “mistake, inadvertence,\nsurprise, or excusable neglect,” “newly discovered evidence,” and\nfraud by an adverse party, among others. UTAH R. CIV . P. 60(b). The\ndistrict court’s ruling on that motion is a final appealable order,\nwhich an appellate court can then review for error. Amica Mut. Ins.\n\n\n\n\n 13\n (...continued)\nquotation marks omitted)).\n 14\n Pennington, 973 P.2d at 940; See also Skanchy v. Calcados Ortope\nSA, 952 P.2d 1071, 1076 (Utah 1998) (“On appeal from a default\njudgment, a defendant may contest the sufficiency of the complaint\nand its allegations to support the judgment.” (internal quotation\nmarks omitted)); Yuanzong Fu v. Rhodes, 2013 UT App 120, ¶ 27, 304\nP.3d 80 (McHugh, J., concurring in part and dissenting in part) (“[A]\nparty appealing from a default judgment entered as a result of the\nfailure to appear can challenge the sufficiency of the complaint to\nsupport the judgment for the first time on appeal.”).\n 15\n U TAH R. CIV . P. 54(c)(2) (“A judgment by default shall not be\ndifferent in kind from, or exceed in amount, that specifically prayed\nfor in the demand for judgment.”). See also Yuanzong Fu, 2013 UT\nApp 120, ¶ 24 (McHugh, J., concurring in part and dissenting in\npart) (“[W]ith respect to a default entered for failure to appear, a\nparty may challenge the amount of damages for the first time on\nappeal of the default judgment itself.”); Katz v. Pierce, 732 P.2d 92, 95\n(Utah 1986) (holding that the court would not consider—on appeal\nfrom the district court’s denial of appeallants’ rule 60(b) motion—a\nnew challenge to the district court’s award of damages in excess of\nthe amount prayed for because appellants did not raise the issue in\ntheir rule 60(b) motion below or on direct appeal from the judgment,\nthough appellants “might have done so”).\n\n\n 9\n\f BRUCE R. WISAN v. CITY OF HILDALE\n Opinion of the Court\n\nCo. v. Schettler, 768 P.2d 950, 970 (Utah Ct. App. 1989) (“[A]n order\ndenying relief under rule 60(b) is a final appealable order.”).16\n ¶21 In this case, Hildale and TCWA availed themselves of both\na direct appeal and a rule 60(b) motion. Hildale and TCWA first filed\na rule 60(b) motion with the district court, seeking to vacate the\nimpending default judgment they expected in light of Judge\nShumate’s announcement at the October 12 hearing that “default\njudgment may enter.” When default judgment did enter on\nNovember 3, 2010, Hildale and TCWA next filed a notice of appeal\nfrom the “Final Judgment and Order . . . entered on November 2,\n2010.”17 This is the direct appeal before us now. Notwithstanding the\nfiling of a notice of appeal, the district court still had jurisdiction to\nrule on the 60(b) motion pending before it. See Baker v. W. Sur. Co.,\n757 P.2d 878, 880 (Utah Ct. App. 1988) (“[T]he trial court has\njurisdiction to consider a 60(b) motion while an appeal is\npending. . . . [I]f the district court finds the motion to be without\nmerit, it may enter an order denying the motion, and the parties may\nappeal from that order.”). The district court ultimately did rule on\n\n 16\n We recognize that the court of appeals has established a bright\nline rule disallowing direct appeals from a default judgment entered\nfor failure to appear. See State v. Sixteen Thousand Dollars U.S.\nCurrency, 914 P.2d 1176 (Utah Ct. App. 1996). The proper and\nexclusive course, according to the court of appeals, is for litigants to\nfirst file a 60(b) motion in the district court, followed only then by an\nappeal from the district court’s denial of that motion. Id. at 1178. The\ncourt of appeals has subsequently reaffirmed this holding from\nSixteen Thousand Dollars in recent years. See, e.g., Salazar v. Chavez,\n2012 UT App 177, ¶ 3 n.2, 282 P.3d 1033 (“[A] defaulting party is not\nentitled to appeal from the default judgment directly but must first\nseek redress through a rule 60(b) motion and appeal from the denial\nof that motion.” (internal quotation marks omitted)); Yuanzong Fu,\n2013 UT App 120, ¶ 15 (quoting Sixteen Thousand Dollars for the\nproposition that “[i]n order to preserve a challenge to a default\njudgment entered for failure to appear, the defendant must first seek\nrelief in the trial court” followed only then by an appeal from the\ntrial court’s denial of a postjudgment motion). Because we hold that\nthere are certain circumstances—though narrow— under which a\ndirect appeal can be brought from a default judgment without first\npetitioning the district court for rule 60(b) relief, we overrule Sixteen\nThousand Dollars and its progeny on this point.\n 17\n The notice of appeal incorrectly identifies the date of the order\nas November 2, 2010. The order was actually entered on November\n3, 2010.\n\n 10\n\f Cite as: 2014 UT 20\n Opinion of the Court\n\nthat motion, denying it on July 3, 2013. However, Hildale and\nTCWA never filed an appeal from that ruling.\n ¶22 We are thus left to decide only this direct appeal. As stated\nabove, we will entertain a direct appeal from a default judgment (for\nfailure to appear) only when the defaulting party alleges grounds\nthat were necessarily decided by the district court in entering default\njudgment. Hildale and TCWA have failed, however, to raise any\nsuch grounds in this appeal. Instead they simply present anew the\nsame arguments they made in their 60(b) motion before the district\ncourt. Specifically, Hildale and TCWA argue that the district court\nshould have set aside the default judgment because (1) Mr. Wisan\nallegedly did not act in good faith in pursuing default judgment;\n(2) Mayor Zitting, though the registered agent for both parties, did\nnot know he needed to give both parties notice of the complaint\nagainst them; and (3) recording the plats would be contrary to public\npolicy. None of these issues were necessary to the district court’s\nentry of default judgment. Rather, they assert possible reasons—\nexclusive to rule 60(b)—for which a court may grant a party relief\nfrom a judgment properly entered as a matter of law. The district\ncourt rejected these arguments and denied the 60(b) motion. Hildale\nand TCWA could have appealed from that ruling, but failed to do\nso. But these grounds are not reviewable on direct appeal.18 Appeal\non these grounds must be taken from the district court’s denial of\nthe defaulting party’s rule 60(b) motion. Because Hildale and TCWA\nfailed to appeal that denial, and because these particular rule 60(b)\narguments are not reviewable on direct appeal, we dismiss this\nappeal without reaching the merits of these arguments.\n ____________\n\n 18\n Alhough Hildale and TCWA also made these 60(b) arguments\nto the district court prior to entry of the default judgment, this timing\ndoes not make the arguments part of our review of the default\njudgment itself. See Jensen v. Intermountain Power Agency, 1999 UT 10,\n¶ 7, 977 P.2d 474 (noting that appellate courts have jurisdiction only\nover judgments or orders designated in the notice of appeal because\n“the object of a notice of appeal is to advise the opposite party that\nan appeal has been taken from a specific judgment in a particular\ncase” (internal quotation marks omitted)); see also Jensen v. Jensen,\n2013 UT App 143, ¶ 3, 304 P.3d 878 (holding that a district court’s\norder submitted “after the entry of the final appealable order, and\n. . . not identified as an order on appeal in the notice of appeal” was\n“not within the scope of . . . appeal”). Our review is limited to the\npropriety of the judgment, circumscribed by those issues necessarily\ndecided by the court in entering the judgment.\n\n 11\n\f", "ocr": false, "opinion_id": 2678721 } ]	Utah Supreme Court	Utah Supreme Court	S	Utah, UT
1,844,753	null	2008-04-09	false	in-re-ramsey	In Re Ramsey	In Re Ramsey	null	null	null	null	null	null	null	null	null	null	null	null	0	Published	null	null	[ "385 B.R. 801" ]	[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n385 B.R. 801 (2008)\nIN RE RAMSEY;\nGRIFFIN\nv.\nNOVASTAR MORTG., INC.\nNo. KS-07-050, 04-23220.\nUnited States Bankruptcy Appellate Panel of the Tenth Circuit.\nApril 9, 2008.\nDecision without published opinion. Appeal Dismissed.\n", "ocr": false, "opinion_id": 1844753 } ]	Tenth Circuit	Bankruptcy Appellate Panel of the Tenth Circuit	FBP	USA, Federal
129,880	null	2003-05-19	false	plasencia-garcia-v-united-states	Plasencia-Garcia	Plasencia-Garcia v. United States	null	null	null	null	null	null	null	null	null	null	null	null	0	Published	null	null	[ "538 U.S. 1051" ]	[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/US/538/538.US.1051.02-10198.html", "author_id": null, "opinion_text": "538 U.S. 1051\n PLASENCIA-GARCIAv.UNITED STATES.\n No. 02-10198.\n Supreme Court of United States.\n May 19, 2003.\n \n 1\n CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.\n \n \n 2\n C. A. 9th Cir. Certiorari denied. Reported below: 51 Fed. Appx. 206.\n \n ", "ocr": false, "opinion_id": 129880 } ]	Supreme Court	Supreme Court of the United States	F	USA, Federal
2,711,548	Baldwin, Brewer	2013-05-16	false	bell-v-tri-county-metropolitan-transportation-district	Tri-Met	Bell v. Tri-County Metropolitan Transportation District	General BELL, Personal Representative of the Estate of Thomas Bell, Deceased, Petitioner on Review, v. TRI-COUNTY METROPOLITAN TRANSPORTATION DISTRICT OF OREGON, a Municipal Corporation, Respondent on Review	Willard E. Merkel, Merkel & Associates, Portland, argued the cause for petitioner on review., Kimberly Sewell, Portland, argued the cause and filed the brief for respondent on review., Kristian Roggendorf, O’Donnell Clark & Crew LLP, Portland, filed a brief on behalf of amicus curiae Oregon Trial Lawyers Association.	null	null	null	null	null	null	null	Argued and submitted January 10,	null	null	0	Published	null	<otherdate id="b575-2"> Argued and submitted January 10, </otherdate><decisiondate id="AJV"> decision of Court of Appeals and judgment of circuit court affirmed May 16, 2013 </decisiondate><br><parties id="b575-3"> General BELL, Personal Representative of the Estate of Thomas Bell, Deceased, <em> Petitioner on Review, v. </em> TRI-COUNTY METROPOLITAN TRANSPORTATION DISTRICT OF OREGON, a municipal corporation, <em> Respondent on Review. </em> </parties><br><docketnumber id="b575-8"> (CC 090913232; CA A145225; SC S060373) </docketnumber><br><citation id="b575-9"> 301 P3d 901 </citation><br><attorneys id="b575-14"> Willard E. Merkel, Merkel & Associates, Portland, argued the cause for petitioner on review. </attorneys><br><attorneys id="b575-15"> Kimberly Sewell, Portland, argued the cause and filed the brief for respondent on review. </attorneys><br><attorneys id="b575-16"> Kristian Roggendorf, O’Donnell Clark & Crew LLP, Portland, filed a brief on behalf of <em> amicus curiae </em> Oregon Trial Lawyers Association. </attorneys><br><judges id="b576-3"> <span citation-index="1" class="star-pagination" label="536"> *536 </span> BREWER, J. </judges><br><judges id="b576-5"> Baldwin, J., dissented and filed an opinion. </judges>	[ "353 Or. 535", "301 P.3d 901" ]	[ { "author_str": "Brewer", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n537BREWER, J.\nThe question in this case is whether plaintiff’s survival action against a public body must be brought within two years or three years of the alleged injury. Either of two statutes supplies the answer. On the one hand, ORS 30.275(9) provides that, “notwithstanding any other ** statute providing a limitation on the commencement of an action,” a tort action against a public body must be filed within two years after the alleged loss or injury. On the other hand, ORS 30.075(1) provides that survival actions for personal injuries must be brought within three years of the alleged loss or injury. The determinative inquiry is whether ORS 30.075(1) constitutes a “statute providing a limitation on the commencement of an action.” If it does, then it falls within the notwithstanding clause of ORS 30.275(9), and the two-year limitation period set out in that statute applies. For the reasons that follow, we conclude that ORS 30.075(1) does constitute a “statute providing a limitation on the commencement of an action,” thus triggering the two-year limitation period of ORS 30.275(9).\nWe take the undisputed facts and some of the procedural history of the case from the opinion of the Court of Appeals.\n“On September 4, 2007, decedent allegedly sustained personal injuries while disembarking from a bus operated by [defendant]. Decedent died, on September 9, 2008, from causes unrelated to the bus accident. On September 18, 2009 — more than two years, but less than three years, after the bus incident — plaintiff, decedent’s personal representative, filed a complaint alleging that [defendant] had negligently injured decedent and seeking damages for the alleged personal injuries.\n“[Defendant] moved to dismiss, ORCP 21 A(9), contending that plaintiff’s action was barred under ORS 30.275(9) the statute of limitations for claims under the Oregon Tort Claims Act (OTCA), ORS 30.260 to 30.300.\n“In response, plaintiff asserted that, given decedent’s intervening death, the complaint was subject not to the 538two-year limitation of ORS 30.275(9) but, instead, to the three-year period described in ORS 30.075(1).\nBell v. Tri-Met, 247 Or App 666, 668-69, 271 P3d 138 (2012) (footnotes omitted). The trial court concluded that ORS 30.275(1) established a limitation on the commencement of a survival action for personal injuries that is superseded, in a tort action against a public body, by the two-year limit set out in ORS 30.275(9). Accordingly, the court granted defendant’s motion to dismiss on the ground that plaintiff had commenced the action more than two years after the injury-producing incident.\nPlaintiff appealed, and the Court of Appeals affirmed. The court held that, “with respect to an action for personal injury brought by a decedent’s personal representative against a public body, the two-year limitation for the commencement of an action in ORS 30.275(9) precludes the application of the three-year limitation provided in ORS 30.075(1).” Bell, 247 Or App at 675. Because it had concluded in an earlier decision that ORS 30.075(1) is a “statute providing a limitation on the commencement of an action,” Giulietti v. Oncology Associates of Oregon, 178 Or App 260, 36 P3d 510 (2001), the court held that ORS 30.075(1) fell within the scope of the notwithstanding clause of ORS 30.275(9).\nOn review, plaintiff contends that the Court of Appeals erred in concluding that ORS 30.275(9) precludes application of the three-year limitation period set out in ORS 30.075(1). According to plaintiff, that three-year period merely extends or tolls the underlying two-year limitation period for personal injury claims set out in ORS 12.110 in circumstances where the decedent has died during that period without bringing an action. Therefore, plaintiff urges, ORS 30.075(1) does not, itself, constitute a limitation on the commencement of an action that is subject to the notwithstanding clause of ORS 30.275(9).\nIn support of that argument, plaintiff relies on this court’s decision in Baker v. City of Lakeside, 343 Or 70, 83, 164 P3d 259 (2007). At issue in Baker was whether the notwithstanding clause in ORS 30.275(9) applied to ORS 12.020(2), a statute that permits service of process to relate 539back to the date on which the complaint was filed.1 We held that it did not, because “the notwithstanding clause in ORS 30.275(9) applies only to those provisions of ORS chapter 12 and other statutes that provide a limitation on the commencement of an action,” and ORS 12.020 was not such a statute. Baker, 343 Or at 83 (emphasis added). In reaching that conclusion, we discussed in detail the legislative history of ORS 30.275(9). Id. at 77-82. In summary, we observed that\n“[n]othing in the legislative history suggests that the legislature intended to depart from the longstanding rule of procedure found in ORS 12.020(2), nor does it suggest that the legislature intended to deny children and persons with mental disabilities bringing OTCA claims the advantage of a tolling provision that is available to them in every other action.”\nId. at 82 (emphasis added); see also ORS 12.160 (providing that, if a cause of action accrues at a time when the person entitled to bring that action is either under 18 years of age or suffering from a mental disability, the statute of limitations applicable to the action is tolled for so long as the person remains under 18 or as long as the person’s mental disability persists).\nAs plaintiff understands it, Baker holds that statutes such as ORS 12.160 that toll or extend underlying statutes of limitation are not “limitations on the commencement of an action” and, thus, apply to actions against public bodies despite ORS 30.275(9).2 Plaintiff asserts that ORS 30.075(1) similarly extends an underlying limitation period — the two-year time limit in ORS 12.110 — to three years when an injured person dies before bringing an action. It follows, plaintiff reasons, that ORS 30.075(1) constitutes a tolling 540provision that is not superseded by the notwithstanding clause in ORS 30.275(9). Defendant replies that ORS 30.075(1) neither extends nor tolls an underlying statute of limitations but, rather, constitutes a separate statute of limitations for survival actions that are brought, in the first instance, by a decedent’s personal representative. Therefore, defendant asserts, the Court of Appeals correctly concluded that the three-year period established in ORS 30.075(1) is “a limitation on the commencement of an action” that is superseded by the notwithstanding clause of ORS 30.275(9).\nBecause this case presents a question of interpretation involving the interplay between two statutes, we resolve it under the principles set out in State v. Gaines, 346 Or 160, 206 P3d 1042 (2009); that is, we examine the text and context of the statute and any legislative history that appears to be helpful at that level of analysis. Dept. of Human Services v. G. D. W., 353 Or 25, 34, 292 P3d 548 (2012). The pertinent context includes “other provisions of the same statute and other related statutes, as well as the preexisting common law and the statutory framework within which the statute was enacted.” Fresk v. Kraemer, 337 Or 513, 520-21, 99 P3d 282 (2004).\nORS 30.075(1) provides:\n“Causes of action arising out of injuries to a person, caused by the wrongful act or omission of another, shall not abate upon the death of the injured person, and the personal representatives of the decedent may maintain an action against the wrongdoer, if the decedent might have maintained an action, had the decedent lived, against the wrongdoer for an injury done by the same act or omission. The action shall be commenced within the limitations established in ORS 12.110 by the injured person and continued by the personal representatives under this section, or within three years by the personal representatives if not commenced prior to death.”\nORS 30.275(9) provides:\n“Except as provided in ORS 12.120, 12.135 and 659A.875, but notwithstanding any other provision of ORS chapter 12 or other statute providing a limitation on the commencement of an action, an action arising from any act 541or omission of a public body or an officer, employee or agent of a public body within the scope of ORS 30.260 to 30.300 shall be commenced within two years after the alleged loss or injury.”\nAs we explained in Baker, the “notwithstanding clause” of ORS 30.275(9) “applies only to those provisions of ORS chapter 12 and other statutes that provide a limitation on the commencement of an action.” 343 Or at 83. Such a limitation is, in different words, a statute of limitations. Id. at 82-83 (“[I]n amending what is now ORS 30.275(9), the legislature focused solely on the question of statutes of limitations.”). Thus, the dispositive question in this case is whether the three-year time limit for bringing a survival action in ORS 30.075(1) establishes a “limitation on the commencement of an action”; that is, whether it is a statute of limitations.\nA statute of limitations is “[a] law that bars claims after a specified period; specif., a statute establishing a time limit for suing in a civil case, based on the date when the claim accrued (as when the injury occurred or was discovered).” Black’s Law Dictionary 1450-51 (8th ed 2004). We note first that, like the two-year statute of limitations, ORS 12.110(1), the three-year limit in ORS 30.075(1) is measured from the accrual of the cause of action, not from the death of the decedent or any other interrupting event. Consistently with that understanding, as the Court of Appeals observed, “the three-year provision of ORS 30.075(1) is — like any statute of limitations — defined and measured solely by reference to the accrual of the cause of action.” Bell, 247 Or App at 674.\nPlaintiff nevertheless asserts that the three-year limit in ORS 30.075(1) is not a statute of limitations but, rather, is a tolling provision that, like ORS 12.160, is not superseded by ORS 30.275(9). First, plaintiff notes that tolling provisions extend the time for filing an action to which, but for tolling, a shorter limitation period would apply. Plaintiff observes that, based on a decedent’s intervening death, ORS 30.075(1) affords the decedent’s personal representative three years within which to commence the same action that the decedent, if he or she had survived, was required to commence within two years.\n542In addition to the arguments that plaintiff makes, amicus Oregon Trial Lawyers Association (OTLA) asserts that ORS 30.075(1) applies only to independent, “freestanding” limitations on the commencement of an action. OTLA asserts that ORS 30.075(1) merely extends or tolls a different statute of limitations, ORS 12.110, and that the three-year limit, in ORS 30.075(1) therefore is not superseded by the two-year limitation period set out in ORS 30.275(9). Because OTLA’s reasoning amounts to a variant of plaintiff’s theory, we address those arguments together.\nAs often is the circumstance with statutory construction, the framing of the analysis of the statutes at issue matters. So, too, in this case, the outcome of which depends on whether ORS 30.075(1) is interpreted to impose a three-year statute of limitations or, alternatively, merely toll or extend an underlying statute of limitations. Here, there is no neat solution, and the best answer lies in sifting the analytical sand for probability, not certainty, of legislative intent.\nAlthough plaintiff argues that ORS 30.075(1) is a “tolling” statute, that is not correct. A tolling statute is “[a] law that interrupts the running of a statute of limitations in certain situations, as when the defendant cannot be served with process in the forum jurisdiction.” Black’s at 1525. Unlike a tolling statute, the “or within three years” clause of ORS 30.075(1) does not “interrupt” the running of an otherwise applicable two-year statute of limitations, ORS 12.110(1). Instead, it establishes a separate limitation period for commencing an action to enforce rights and liabilities that the legislature first created in the same statute.\nORS 30.075(1) was enacted in 1965. Or Laws 1965, ch 620, § 4. Before ORS 30.075(1) was enacted, ORS 121.010 (1963) had provided that\n“[a] cause of action arising out of an injury to the person dies with the person of either party, except as provided in ORS 30.020[3] and 30.080;[4] but the provisions of ORS 54330.020 and 121.010 to 121.100 shall not abate the action mentioned in ORS 13.090,[5] or defeat or prejudice the right of action given by ORS 30.010. [6]”\nORS 121.010 had been part of Oregon law since before statehood. See General Laws of Oregon, Civ Code, ch IV, title VI, § 365, p 241 (Deady 1845-1864). The legislature repealed ORS 121.010 when it enacted ORS 30.075(1). See Or Laws 1965, ch 620, § 1. A survival action such as ORS 30.075(1), unlike the wrongful death statute, ORS 30.020, does not constitute an entirely new claim for relief. See, e.g., Hayes v. Hansen, 175 Or 358, 397-99, 154 P2d 202 (1944) (distinguishing between characteristics of wrongful death and survival actions). Viewed in that light, it makes sense to provide, as the legislature did in ORS 30.075(1), that a survival action for personal injury does not “abate” upon the death of an injured person. When a claim “abates” it is “nullif[ied],” and “ma[d]e void[,]” Webster’s Third New Int’l Dictionary 2 (unabridged ed 2002), much the same as a personal injury claim “die[d] with the person” under former ORS 121.010. Thus, when the legislature provided in ORS 30.075(1) that such an action does not abate on the decedent’s death, it expressly reversed the prior state of the law. That is, by enacting ORS 30.075(1) and simultaneously repealing ORS 121.010, the legislature created new rights and liabilities arising from personal injury where an injured person dies before or after commencing an action. See Wiebe v. Sealy, 215 Or 331, 371-72, 335 P2d 379 (1959) (describing survival statute for claims against deceased tortfeasor as creating “new rights and liabilities” that only apply prospectively). In particular, the legislature created survival rights and liabilities for personal injuries in the first sentence of ORS 30.075(1); in the second sentence of the same provision, the legislature established the limitation period for the commencement of such an action by the personal representative of a deceased claimant: three years from the accrual of the 544action. Thus, a survival statute such as ORS 30.075(1) is at once derivative and at the same time it creates a new set of rights and obligations between the tortfeasor and the decedent’s personal representative that did not previously exist.\nConsistently with that understanding, we have described a rule that implements a portion of ORS 30.075(1) as the equivalent of a “statute of limitations.” In Mendez v. Walker, 272 Or 602, 538 P2d 939 (1975), we construed former ORS 13.080 (1969), the statutory predecessor to ORCP 34.7 ORS 13.080 provided:\n“(1) No action or suit shall abate by the death or disability of a party, or by the transfer of any interest therein.\n“(2) In case of the death of a party, the court shall, on motion, allow the action or suit to be continued:\n“(b) Against his personal representative or successors in interest at any time within four months after the date of the first publication of notice to interested persons, but not more than one year after his death.”\nIn Mendez, we stated that “[t]he year allowed by ORS 13.080(2)(b) in which to substitute as a party the representative of decedent’s estate has been construed as the equivalent of a statute of limitations.” 272 Or at 604-05. We concluded that the plaintiff’s claim was time-barred in that case because the personal representative had not been substituted for the deceased plaintiff within the one-year time limit set by ORS 13.080(2)(b). Id. at 606.\n545As does ORCP 34, former ORS 13.080 provided the sole procedural means for continuing a previously commenced action that survives an injured claimant’s death under ORS 30.075(1). In addition, like ORS 30.075(1), former ORS 13.080 provided (and ORCP 34 now provides) that a subject action does not “abate” on a decedent’s death. By enacting ORS 30.075(1) in light of the then-existing procedural rule in former ORS 13.080, the legislature presumably sought to limit the time in which a personal representative may commence an action in the same manner that it limited the time in which a personal representative may be substituted in a pending action. In holding that the one-year limit for substitution in the corresponding procedural rule is the equivalent of a limitation on the commencement of an action, Mendez is consistent with the conclusion that ORS 30.075(1) likewise prescribes limitations on the commencement or continuation of survival actions.\nThat conclusion is reinforced by the legislative history of the 1981 amendment to ORS 30.275 — which produced the notwithstanding clause of subsection (9) of that statute — that we elaborated in Baker. In that case, we placed particular weight on the statements of Senator Fadeley, who “repeatedly had stated that two statutes of limitations should not apply to [Oregon Tort Claims Act] claims: the six-year statute of limitations for property damage and the three-year statute of limitations for wrongful death. The notwithstanding clause mirrors that concern.” Baker, 343 Or at 82. Earlier in the debate over the bill that would become ORS 30.275(9), Senator Fadeley had engaged Senator Kulongoski in a colloquy, asking him whether he “was intending that the existing two-year statute on personal injury apply and that the two-year general statute on tort claims act still apply.” Senator Kulongoski replied: “that was correct.” Id at 79.\nAlthough the fit is not precise, a wrongful death action under ORS 30.020(1) — which also is subject to a three-year statute of limitations, rather than the two-year limit of ORS 12.110(1) — is more akin to a survival action under ORS 30.075(1) than the latter is to a tolling provision such as ORS 12.160. For both a wrongful death action and a survival action, the legislature has created rights and 546liabilities that did not previously exist in statute or at common law. Moreover, in each circumstance, the legislature established a three-year limitation period from the accrual of the claim — as opposed to some interrupting event — for the personal representative of the decedent to commence an action. In short, the legislature’s determination, where the defendant is a public body, to override the three-year statute of limitations that ordinarily applies to wrongful death actions supports the conclusion that the comparable three-year limitation period for survival actions under ORS 30.075(1) must similarly yield to the limit set out in ORS 30.275(9).8\nHaving addressed plaintiff’s arguments, we turn to the dissent, which, unlike plaintiff, does not regard ORS 30.075(1) as a tolling statute. Instead, the dissent asserts that ORS 30.075(1) “plainly extends the life of an injury action beyond the death of an injured person as set forth in the statute.” 353 Or at 552 (Baldwin, J., dissenting). As pertinent here, we presume that the dissent means to say that, where an injured person failed to commence an action for those injuries while alive, ORS 30.075(1) adds time for commencing an action after the death of the person. That much is true; but, there is more to the statute than that. The legislature also created a new right of action that otherwise would not have existed and, where the decedent has failed to commence an action during his or her life, it accords his or her personal representative three years from the accrual of the claim to commence the action.\nThe dissent repeatedly asserts that ORS 30.075(1) does not provide a limitation on the commencement of an action. We disagree. As discussed, that provision contains two different sentences that accomplish two different things. The first sentence provides that a personal injury action “shall not abate” upon the death of the injured person. We readily acknowledge the point. The second sentence, however, goes further and says when the nonabated action must commence. It provides that an action must be brought within two years if commenced before death and three years 547if commenced after death. As explained above, that is what statutes of limitation do.\nThat leads to the considerable attention that the dissent devotes to characterizing ORS 30.075(1) as a “survival statute.” The reasoning apparently is that, because the statute declares in one part that actions shall not abate on the death of the injured person, nothing in that statute can be a statute of limitation. But, again, there is more than that going on in the provision. The fact that the first sentence can be classified as a “survival statute” does not logically mean that the second sentence does not provide a limitation on the commencement of the action. In many, if not most, cases to which ORS 30.075(1) applies, the second sentence of the statute unarguably acts as a statute of limitation. If an action is commenced by the injured person during his or her life, the first clause of the second sentence provides that the action “shall be commenced within the limitations established in ORS 12.110 by the injured person and continued by the personal representatives under this section!.]” That is, even though the statute provides for the survival of such actions, it also limits the time for their commencement.\nMoreover, the expanded three-year limitation prescribed in the second clause of the second sentence of the statute for actions filed by a personal representative after the injured person’s death is no less a statute of limitations merely because the period within which an action must be commenced is longer. As discussed, like the two-year limitation imported from ORS 12.110 for actions filed by the injured person, the three-year period runs from the accrual of the claim, not some intervening event. That symmetry strongly suggests that the legislature intended for the second sentence of ORS 30.075(1) to prescribe separate limitations on the commencement of the two categories of survival actions that the first sentence of the statute authorized to be brought or maintained.\nFinally, the dissent gives considerable attention to decisions from other jurisdictions about the nature of survival actions and how they differ from statutes of limitation. However, each of those cases involved distinct statutory frameworks and correspondingly distinct legal issues 548from those confronting us here. In Swindle v. Big River Broadcasting Corp., 905 SW2d 565 (Tenn App 1995), for example, the court construed a statute that provided for additional time to sue a dissolved corporation, where the triggering date for bringing a survival action was the date of an intervening event, that is, corporate dissolution, not, as is the circumstance with ORS 30.075(1), the date of accrual of the underlying claim. 905 SW2d at 567. The same type of statute also was at issue in the South Dakota, Nebraska, and Texas cases on which the dissent relies. See M.S. v. Dinkytown Day Care Center, Inc., 485 NW2d 587, 588 (SD 1992); Keefe v. Glasford’s Enterprises, Inc., 532 NW2d 626, 629 (Neb 1995); Gomez v. Pasadena Health Care Management Inc., 246 SW3d 306, 314, (Tx App 14th Dist 2008). Accordingly, those decisions do not meaningfully inform our task, at least not in the way the dissent posits.9\nBecause the three-year time limit in ORS 30.075(1) is a limitation on the commencement of a survival action for personal injuries by a personal representative, it is superseded by the two-year limitation period for the commencement of a tort action against a public body under ORS 30.275(9). Plaintiff failed to commence this action within that two-year period. It follows that the trial court did not err in dismissing it.\nThe decision of the Court of Appeals and the judgment of the circuit court are affirmed.\n\n ORS 12.020(2) provides:\n“If the first publication of summons or other service of summons in an action occurs before the expiration of 60 days after the date on which the complaint in the action was filed, the action against each person whom the court by such service has acquired jurisdiction shall be deemed to have been commenced upon the date on which the complaint in the action was filed.”\n\n\n The parties and amicus debate at length whether our reference in Baker to tolling statutes falling outside the notwithstanding clause of ORS 30.275(9) was part of the core holding of that case. For our purposes here, it is sufficient to assume that it was.\n\n\n3 ORS 30.020 (1963) provided for an action by a personal representative for wrongful death.\n\n\n4 ORS 30.080 (1963) provided that causes of action arising out of the injury or death of a person shall not abate upon “the death of the wrongdoer.”\n\n\n5 ORS 13.090 (1963) provided that the death of a party after a verdict did not abate the cause of action, but that “the action shall proceed thereafter in the same manner as in cases where the cause of action survives.”\n\n\n6 ORS 30.010 (1963) provided that a father or mother, under certain circumstances, could maintain an action “for the injury or death of a child.”\n\n\n ORCP 34 provides, in part:\n“A No action shall abate by the death or disability of a party, or by the transfer of any interest therein, if the claim survives or continues.\n“B In case of the death of a party, the court shall, on motion, allow the action to be continued:\n“B(l) By such party’s personal representative or successors in interest at any time within one year after such party’s death; or\n“B(2) Against such party’s personal representative or successors in interest unless the personal representative or successors in interest mail or deliver notice including the information required by ORS 115.003 (3) to the claimant or to the claimant’s attorney if the claimant is known to be represented, and the claimant or his attorney fails to move the court to substitute the personal representative or successors in interest within 30 days of mailing or delivery.”\n\n\n The foregoing analysis also answers OTLA’s assertion that the three-year limit in ORS 30.075(1) is not an independent or, in its terms, “freestanding” limitation on the commencement of an action for purposes of ORS 30.275(9).\n\n\n We note, however, that in M.S., the South Dakota Supreme Court made a point that we have made about survival actions with which the dissent appears to disagree; namely, that a survival action creates a substantive right or claim. 353 Or at 557-58 (Baldwin, J., dissenting). In concluding that a minority tolling statute did not extend the time for commencing an action under a corporate survival statute, the South Dakota court stated: “The fact a survival statute essentially creates a right or claim that would not exist but for the statute is key to this court’s determination of whether the minority tolling provision in [the tolling statute] is applicable to the corporate survival period established by [the survival statute].” M.S., 485 NW2d at 589 (emphasis added).\n\n", "ocr": false, "opinion_id": 9802574 }, { "author_str": "Baldwin", "per_curiam": false, "type": "040dissent", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nBALDWIN, J.,\ndissenting.\nI am unable to join in the majority’s opinion, because the majority has adopted an unreasonable construction of ORS 30.075(1) and ORS 30.275(9). Moreover, the majority opinion is inconsistent with our recent holding in Baker v. 549City of Lakeside, 343 Or 70, 164 P3d 259 (2007). In my view, plaintiffs personal representative timely filed this injury action under ORS 30.075(1), and the action was not subject to the time limitation established by ORS 30.275(9).\nA. The text, context, and legislative history disclose that ORS 30.075(1) is not subject to the time provisions of ORS 30.275(9).\nPlaintiff, as a passenger on a bus operated by defendant, a public body, allegedly sustained personal injuries caused by defendant’s negligence. Plaintiff later died from unrelated causes, and his personal representative timely filed a negligence action for damages within the time allowed to commence a survival action under ORS 30.075(1). That statute provides:\n“Causes of action arising out of injuries to a person, caused by the wrongful act or omission of another, shall not abate upon the death of the injured person, and the personal representatives of the decedent may maintain an action against the wrongdoer, if the decedent might have maintained an action, had the decedent lived, against the wrongdoer for an injury done by the same act or omission. The action shall be commenced within the limitations established in ORS 12.110 by the injured person and continued by the personal representatives under this section, or within three years by the personal representatives if not commenced prior to death.”\nORS 30.075(1) (emphases added).\nThe legislature enacted ORS 30.075(1) in 1965. Or Laws 1965, ch 620, § 4. By its express terms, ORS 30.075(1) provides that an action arising out of injuries to a person “shall not abate upon the death of the injured person,” and further provides that the action may be commenced “within three years by the personal representative, if not commenced prior to death.” Thus, the plain language of this survival statute allowed plaintiff’s personal representative to commence this action because plaintiff did not commence an action for his injuries prior to his death.\n550In 1981, making no specific reference to that earlier enacted survival statute, the legislature amended the Oregon Tort Claims Act (OTCA) and added what is now ORS 30.275(9). Or Laws 1981, ch 350, § 1. That statute now provides:\n“Except as provided in ORS 12.120, 12.135 and 659A.875, but notwithstanding any other provision of ORS chapter 12 or other statute providing a limitation on the commencement of an action, an action arising from any act or omission of a public body or an officer, employee or agent of a public body within the scope of ORS 30.260 to 30.300 shall be commenced within two years after the alleged loss or injury.”\nORS 30.275(9) (emphasis added).\nIn this case, the ambiguity requiring analysis arises from the legislature including a time element for the commencement of an action by a personal representative when it extended injury actions beyond the death of an injured party. ORS 30.075(1) allows a personal representative to commence an action “within three years ** if not commenced prior to [the] death [of the injured person].” Based on that language in the context of a survival statute, the majority has erroneously characterized ORS 30.075(1) as a “statute providing a limitation on the commencement of an action” within the meaning of ORS 30.0275(9).\nI agree with the majority that we resolve any ambiguity involving the interplay between statutes under the principles set out in State v. Gaines, 346 Or 160, 206 P3d 1042 (2009). However, I emphasize that Gaines (and the PGE methodology it modified) was developed and adopted\n“[to] best serve the paramount goal of discerning the legislature’s intent. In that regard, as this court and other authorities long have observed, there is no more persuasive evidence of the intent of the legislature than the words by which the legislature undertook to give expression to its wishes. Only the text of a statute receives the consideration and approval of a majority of the members of the legislature, as required to have the effect of law. The formal requirements of lawmaking produce the best source from which to discern the legislature’s intent, for it is not the 551intent of the individual legislators that governs, but the intent of the legislature as formally enacted into law[.]”\nId. at 171 (internal citations and quotation marks omitted).\nThe “paramount goal” of discerning legislative intent reflects a judicial understanding that legislative enactments must be enforced appropriately under our form of government. The legislature has set out the general rule for construction of statutes by the judicial branch as follows:\n“In the construction of a statute, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars such construction is, if possible, to be adopted as will give effect to all.”\nORS 174.010.\nHere, examination of the text of the statutes under consideration is fairly straightforward. Included in the critical text of ORS 30.075(1) are the words “shall not abate upon the death of the injured person.” The meaning of the phrase “shall not abate” is unambiguous. In a legal context, the word “abate” means “a: to bring entirely down : DEMOLISH : put an end to : do away with <~ a nuisance> <~ an action> b: nullify : make void <~ a writ>.” Webster’s Third New Int’l Dictionary 2 (unabridged ed 2002) (boldface omitted). Similarly, Black’s Law Dictionary defines “abatement,” in part, as “[t]he act of eliminating or nullifying.” Black’s Law Dictionary 3 (9th ed 2009). In Mendez v. Walker, 272 Or 602, 603 n 1, 538 P2d 939 (1975), we indicated that the abatement of an injury action upon the death of a party means “the action is utterly dead.”\nWe must also examine the last full sentence of ORS 30.075(1), which expands the time allowed for commencing a survival action. If an “injured person” commences an action within two years, it may be “continued by the personal representative under this section.” If not commenced “prior to [the injured person’s] death,” the action may be commenced “within three years by the personal representative.” That enactment is based on the legislature’s determination that such an action will survive for an additional period of time 552beyond the death of the injured person. In enacting ORS 30.075(1), the legislature has expressed an intention that a personal representative may have up to an additional year beyond the two-year limitation established by ORS 12.110 to commence an action under certain circumstances. Neither the majority or defendant has identified an ambiguity in the text of ORS 30.075(1).\nIn sum, ORS 30.075(1) plainly extends the life of an injury action beyond the death of an injured person as set forth in the statute. The statute establishes a procedure whereby a personal representative may commence an action if the injured person dies before the two-year time limit established by ORS 12.110. If an injured person dies after the two-year period has elapsed, a personal representative is allowed up to an additional year to commence that action. By its terms, the purpose and function of this survival statute is to extend the life of any injury action — not restrict it. As a matter of procedure, the statute allows additional time for a personal representative to commence an action. I employ the legal meaning of the word “procedure,” which is defined as “1. A specific method or course of action. 2. The judicial rule or manner for carrying on a civil lawsuit or criminal prosecution.” Black’s at 1323 (boldface omitted). Obviously, without the insertion of a time element in the statute, the life of a survival action would be of unlimited duration. The insertion of a time element and a specific method for carrying on the survival action does not make the survival statute a statute of limitation. As will be explained, to conclude otherwise exalts form over substance and misapprehends the nature of ORS 30.075(1) as a survival statute.\nAn examination of the legislative history relating to ORS 30.075(1) confirms that the legislative purpose in enacting this survival statute was to give additional life to injury actions under the circumstances set forth in the statute. Prior to the 1965 enactment of ORS 30.075(1), the longstanding rule in Oregon, which was embodied in ORS 121.010 (1963), provided that -a “cause of action arising out of an injury to the person dies with the person.” That prohibition was subject to a few exceptions for wrongful death actions, actions related to the injury of a child, and actions that achieved a verdict before the party’s death, but 553otherwise operated to preclude any representative from continuing or bringing a personal injury cause of action on behalf of a deceased person. By enacting ORS 30.075(1), the legislature repealed the prohibition contained in ORS 121.010. See Or Laws 1965, ch 620, § 1. In discussing the provisions contained in the 1965 bill, Representative Harlan noted that “all causes of action survive in Oregon except a cause of action for personal injury. This bill ** would correct that in line with the laws of some 47 states.” Tape Recording, Senate Judiciary Committee, HB 1517, Apr 26, 1965, Tape 3, Side 2 (statement of Rep Harlan); see also Minutes, House Judiciary Committee, Mar 30, 1965, 2 (noting that the bill was designed to allow the survival of a cause of action after death).\nI next turn to the text of ORS 30.275(9) to determine whether it relates to ORS 30.075(1). ORS 30.275(9) requires that an action against a public body within the scope of the OTCA shall be commenced within two years after the alleged loss or injury, “notwithstanding any other provision of ORS chapter 12 or other statute providing a limitation on the commencement of an action.” The critical text here is “statute providing a limitation on the commencement of an action.” If ORS 30.075(1) is not a “statute providing a limitation” within the meaning of ORS 30.275(9), the two-year time limitation of ORS 30.275(9) does not apply. The word “limitation” generally means “a restriction or restraint imposed from without (as by law, custom, or circumstances)” and, more specifically, “a time assigned for something; specif : a certain period limited by statute after which actions, suits, or prosecutions cannot be brought in the courts.” Webster’s at 1312. Similarly, Black’s Law Dictionary defines “limitation” as “1. The act of limiting; the state of being limited. 2. A restriction. 3. A statutory period after which a lawsuit or prosecution cannot be brought in court.” Black’s at 1012 (boldface omitted). Thus, a limitation is a restriction or restraint on when an action can be commenced by a party. Hence, the provisions of ORS 30.275(9) are unambiguous. See also Baker, 343 Or at 85 (Durham, J., concurring) (“I conclude that ORS 30.275(9) is not ambiguous, and I draw that conclusion from an examination of statutory text and context.”).\n554Notably, in Baker, this court thoroughly reviewed the legislative history of ORS 30.275(9) in examining the interplay of that statute with ORS 12.020, which defines when an action is deemed to have been commenced. We held that the notwithstanding clause of ORS 30.275(9) does not bar the application of ORS 12.020 to OTCA claims. In so doing, we determined that the legislative history of the notwithstanding clause did not disclose a specific explanation as to why the drafters added the clause. However, we concluded that “the legislative history confirms that, in amending what is now ORS 30.275(9), the legislature focused solely on the question of statutes of limitations.” Baker, 343 Or at 82-83.\nIn Baker, based on the legislative history, we did not consider it reasonable to assume that the legislature intended to cut off the additional time to commence an action provided for under ORS 12.020(2). That statute allowed an additional 60 days to serve process beyond the two-year statute of limitation enacted under the OTCA. We explained:\n“Nothing in the legislative history suggests that the legislature intended to depart from the longstanding rule of procedure found in ORS 12.020(2), nor does it suggest that the legislature intended to deny children and persons with mental disabilities bringing OTCA claims the advantage of a tolling provision that is available to them in every other action.”\nId. at 82.\nSimilarly, in this case, nothing in the legislative history suggests that the legislature, in enacting ORS 30.275(9), intended to nullify any survival actions it earlier established when enacting ORS 30.075(1). That is particularly so when the legislative history relating to ORS 30.075(1) discloses a legislative purpose to give additional life to injury actions by allowing a personal representative to commence an action after the death of the injured person. Here, it is not reasonable to assume that the legislature considered ORS 30.075(1) a “statute providing a limitation on the commencement of an action” within the meaning of ORS 30.275(9).\n555As previously indicated, ORS 30.075(1), operating as a survival statute, is fundamentally different from a statute of limitation, which primarily affects the time within which a stale action may be brought. This court’s case law sheds light on the nature and purpose of statutes of limitation. In Johnson v. Star Machinery Co., 270 Or 694, 530 P2d 53 (1974), we stated:\n“In general, there are usually two reasons which are advanced as justification for the imposition of such statutes. The first concerns the lack of reliability and availability of evidence after a lapse of long periods of time. * * \n“The second rationale concerns the public policy of allowing people, after the lapse of a reasonable time, to plan their affairs with a degree of certainty, free from the disruptive burden of protracted and unknown potential liability!.]”\nId. at 700-01 (citation omitted); see also Wilder v. Haworth, 187 Or 688, 695, 213 P2d 797 (1950) (commenting on statutes of limitation as desirable statutes of repose after the lapse of a reasonable period of time); King v. Mitchell, 188 Or 434, 442, 214 P2d 993 (1950) (same). As previously explained, the insertion of procedural elements into ORS 30.075(1) by the legislature did not make this survival statute a statute of limitation.\nConsidering the text, context, and legislative history of ORS 30.075(1) and ORS 30.275(9), I therefore conclude that ORS 30.075(1) is not subject to the time provisions of ORS 30.275(9). That conclusion is also supported by the rationale of Baker, 343 Or 70.\nB. The majority has adopted an unreasonable construction of ORS 30.075(1) and ORS 30.275(9).\nThe majority has adopted an unreasonable construction of the pertinent statutes and thereby has failed to apprehend the essential purpose of ORS 30.075(1) as a survival statute. A “survival statute” is a “law that modifies the common law by allowing certain actions to continue in favor of a personal representative after the death of the party who could have originally brought the action.” Black’s at 1583. The substantive effect of a survival statute is to give 556additional life to an existing action that would have been destroyed under common law but for the legislative enactment. The nature of a survival statute is sharply distinguishable from a statute of limitation, which affects the time within which a stale action may be brought. See, e.g., M.S. v. Dinkytown Day Care Center, Inc., 485 NW2d 587 (SD 1992) (hereinafter Dinkytown); Keefe v. Glasford’s Enterprises, Inc., 248 Neb 64, 532 NW2d 626 (1995); Swindle v. Big River Broadcasting Corp., 905 SW2d 565 (Tenn Ct App 1995).\nThe majority opinion appears to be the only reported case in the country where a survival statute has been held to be a statute of limitation. To the contrary, other reported cases bearing on the subject have held that a survival statute, by its very nature, is not a statute of limitation. In the context of survival actions against dissolved corporations, the Supreme Court of Nebraska has recognized the fundamental difference between a survival statute and a statute of limitation:\n‘“Section 21-20,104 is a survival statute, not a statute of limitations, and, as such, gives life to claims which would otherwise be extinguished. Absent the survival statute, a dissolved corporation could not sue or be sued. Therefore, the rights created by the statute are the right of the corporation to sue during the survival period and the right of others to sue the corporation during the same period.’”\nKeefe, 248 Neb at 67, 532 NW2d at 629 (citations omitted; quoting Licht v. Association Servs., Inc., 236 Neb 616, 623, 463 NW2d 566, 571 (1990)). The court further explained:\n“‘If § 21-20,104 is a survival statute rather than one of limitations, not even equity could estop its application. For, while a statute of limitations is an period of repose designed, if asserted, to prevent recovery on stale claims, a survival statute gives life to a substantive right that but for the statute would have been destroyed.’”\nId. at 68, 532 NW2d at 629 (citations omitted; quoting Van Pelt v. Greathouse, 219 Neb 478, 484, 364 NW2d 14, 19 (1985)).\n557The Supreme Court of South Dakota, in the same context, has also noted the same clear distinction between these two types of statutes:\n“‘[A] statute of limitations affects the time that a stale claim may be brought while a survival statute gives life for a limited time to a right or claim that would have been destroyed entirely but for the statute. These survival statutes arbitrarily extend the life of the corporation to allow remedies connected with the corporation’s existence to be asserted.’”\nDinkytown, 485 NW2d at 587 (quoting Davis v. St. Paul Fire & Marine Ins. Co., 727 F Supp 549 (DSD 1989)); see also Gomez v. Pasadena Health Care Management, Inc., 246 SW3d 306 (Tex Civ App 2008) (same); Swindle, 905 SW2d 565 (same).\nThe majority erroneously concludes that, by enacting ORS 30.075(1), “the legislature created new rights and liabilities arising from personal injury where an injured person dies before or after commencing an action.” Bell v. Tri-Met, 353 Or at 543. However, it is well established that a survival action “derives from the claim that a decedent would have had — such as for pain and suffering — if he or she had survived.” Black’s at 1583. The rights and liabilities of the parties in a survival action are effectively determined as of the time of injury under common law. Those rights and liabilities define the action, which survives the death of a party under a survival statute. See, e.g., Hern v. Safeco Ins. Co. of Illinois, 329 Mont 347, 125 P3d 597 (2005) (survival action raises claims that came into existence when decedent still alive with personal representative asserting those claims); DeLane ex rel. Delane v. City of Newark, 343 NJ Super 225, 778 A2d 511 (2001). ORS 30.075(1) simply expands the life of an injury action and provides a procedure for the prosecution of the action by a personal representative. It does not create additional rights and liabilities.\nMoreover, the majority’s reliance on Wiebe v. Seely, 215 Or 331, 335 P2d 379 (1959), for the proposition that a survival statute creates new rights and liabilities is misplaced. In Wiebe, the court declined to give retroactive effect to an amendment to a survival statute passed in 1953 that 558would have increased the plaintiffs recovery to $20,000, because a lower limit of $15,000 was in effect at the time the plaintiff was injured in 1951. Wiebe thus addresses the retroactive effect of legislation and has no bearing on the statutory construction issues presented in this case.\nThe majority’s reliance on Mendez v. Walker, 272 Or 602, 538 P2d 939 (1975), is also misplaced. In Mendez, the plaintiff timely filed his injury action, but the defendant died before the case was brought to trial. Under then-existing ORS 13.080, the plaintiff was required to file a motion to substitute a personal representative of the defendant’s estate within one year to continue the action. The plaintiff filed the motion two years after the defendant’s death and was therefore precluded from continuing his action. That result is unremarkable because ORS 13.080 did not operate functionally as a survival statute unless a party timely filed a motion with the court. The plaintiff did not do so, and his motion was time barred. By contrast, here, plaintiff’s personal representative timely filed this action under ORS 30.075(1).\nFinally, the majority fails to recognize important substantive differences between a survival action and a wrongful death action. It is well established that the two types of actions are fundamentally different. As previously defined, a “survival action” “derives from the claim that a decedent would have had * * * if he or she had survived.” Black’s at 1583. A “survival action” is further defined as a “lawsuit brought on behalf of a decedent’s estate for injuries or damages incurred by the decedent immediately before dying. *** In contrast is a claim that the beneficiaries may have in a wrongful-death action, such as for loss of consortium or loss of support from the decedent.” Black’s at 1583. Generally, a survival action is designed to recover damages a decedent could have recovered but for his death, and a wrongful death action seeks to recover damages to beneficiaries resulting from a decedent’s death. See, e.g., Foncannon v. Phico Ins. Co., 104 F Supp 2d 1091 (WD Ark 2000); Kaufman v. Cserny, 856 F Supp 1307 (SD Ill 1994); Shield v. Bayliner Marine Corp., 822 F Supp 81 (D Conn 1993). For our purposes, it is important to emphasize that 559a survival action extends the life of an injury action, and a wrongful death action establishes a new cause of action. Thus, a time limitation imposed from outside a survival statute will have a destructive impact on the functional operation of the survival statute. Here, the majority has effectively nullified the operation of ORS 30.075(1) as applied to all injury actions where the defendant is a public body, the injured person dies, and that person did not commence an action within two years of injury. By contrast, the application of ORS 30.275(9) to wrongful death actions reduces the time limit for a plaintiff to commence an action but does not nullify the rights of a party under the wrongful death statute.\nBy adopting a construction that effectively nullifies the survival provisions of ORS 30.075(1) regarding the injury actions described above, those actions will now abate at common law upon the death of such injured persons, contrary to the legislature’s intentions. The majority opinion also creates a trap for unwary family members who do not timely arrange for a personal representative to continue an action when an injured person dies in close proximity to the two-year time limitation established by ORS 12.110. For example, under the majority’s construction, family members of an injured person who dies 10 days before the two-year limit expires (with no action previously commenced) will have only those 10 days to determine that the action must be commenced and arrange for a personal representative to do so in the wake of the death. It is unlikely that the legislature intended those results by enacting ORS 30.275(9).\nThis court has long recognized the prudential value of not construing legislative enactments “so as to ascribe to the legislature the intent to produce what we perceive to be an unreasonable result.” McKean-Coffman v. Employment Div., 312 Or 543, 552, 824 P2d 410 (1992) (citing State v. Galligan, 312 Or 35, 39, 816 P2d 601 (1991)); see also Pacific P. & L. v. Tax Com., 249 Or 103, 110, 437 P2d 473 (1968) (same); Fox v. Galloway, 174 Or 339, 347, 148 P2d 922 (1944) (duty of court to avoid an unreasonable result in construing statute as consistent with the general policy of the legislature). Here, the majority’s construction of ORS 30.275(9) 560leads to an unreasonable result that is inconsistent with the legislature’s purpose in enacting ORS 30.075(1).\nMoreover, under the general rule for construction of statutes set out by the legislature, this court is obligated “to ascertain and declare what is, in terms or in substance contained therein, * * * and where there are several provisions or particulars such construction is, if possible, to be adopted as will give effect to all.” ORS 174.010. Here, the majority has not adopted a construction of ORS 30.075(1) and ORS 30.275(9) that fulfills that obligation.\nC. The majority opinion is inconsistent with Baker.\nAs previously discussed, we recently held in Baker, 343 Or 70, that the expanded time (60 days) allowed for service of process provided by ORS 12.020(2) was not a limitation on the commencement of an action within the meaning of ORS 30.275(9):\n“Considering the text, context, and legislative history of ORS 30.275(9), we hold that the notwithstanding clause in ORS 30.275(9) applies only to those provisions of ORS chapter 12 and other statutes that provide a limitation on the commencement of an action. The notwithstanding clause does not bar application of ORS 12.020 to OTCA claims. Because plaintiff filed her complaint within two years of the accident and served the city within 60 days of filing her complaint, her complaint was timely under ORS 12.020(2). The city’s motion for summary judgment should have been denied.”\nId. at 83.\nIn Baker, we essentially viewed ORS 12.020(2) as a procedural statute and not as a “statute providing a limitation” within the meaning of ORS 30.275(9). Similarly, the procedure of allowing one year for a personal representative to file an action under ORS 30.075(1) is not a “statute providing a limitation” within the meaning of ORS 30.275(9). In my view, the majority has not reasonably distinguished this case from Baker\nSignificantly, in Baker, we adopted a reasonable construction of ORS 30.275(9) and ORS 12.020(2) in a manner that gave effect to both statutes. In Baker, we concluded 561that “the legislative history confirms that, in amending what is now ORS 30.275(9), the legislature focused solely on the question of statutes of limitations.” 343 Or at 82-83. Prior to drawing that conclusion, we noted various specific statutes of limitation for various actions discussed in the legislative history. We observed that “[n]othing in the legislative history” suggested that the legislature intended to depart from the previously established rule of procedure provided for under ORS 12.020 allowing additional time for service of process. Id. at 82. In holding that ORS 30.275(9) does not bar the application of ORS 12.020 to OTCA claims, we also noted that we were not attempting to infer intent from legislative inaction:\n“We note that this is not a case in which we are attempting to infer intent from legislative inaction. See Berry v. Branner, 245 Or 307, 311, 421 P2d 996 (1966) (explaining the difficulty in inferring legislative intent from inaction). Nor is it a case in which the legislature was silent regarding the subsection at issue here. Rather, the committee and witnesses explained at length that this subsection would specify the applicable limitations period of OTCA actions. We rely on that explanation in inferring that the wording adopted on April 30, 1981, addresses only periods of limitation.”\nId. at 83 n 6 (emphasis added). Here, the majority has not pointed to anything in the legislative history relating to ORS 30.275(9) to suggest that the legislature intended to depart from the previously established procedures to allow personal representatives to commence survival claims under ORS 30.075(1). As in Baker, it is not reasonable to assume from the legislative history that the legislature intended to discard previously established procedures of such significance.\nBased on the foregoing authorities, I conclude that the majority’s decision in this case is erroneous and frustrates the legislature’s intentions in enacting ORS 30.075(1) and ORS 30.275(9). I therefore respectfully dissent.\n", "ocr": false, "opinion_id": 9802575 }, { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 27, "download_url": "http://www.publications.ojd.state.or.us/docs/S060373.pdf", "author_id": null, "opinion_text": "No. 21\t May 16, 2013\t535\n\n IN THE SUPREME COURT OF THE\n STATE OF OREGON\n\n General BELL,\n Personal Representative of the Estate of\n Thomas Bell, Deceased,\n Petitioner on Review,\n v.\n TRI-COUNTY METROPOLITAN\n TRANSPORTATION DISTRICT OF OREGON,\n a municipal corporation,\n Respondent on Review.\n (CC 090913232; CA A145225; SC S060373)\n\n En Banc\n On review from the Court of Appeals.\n Argued and submitted January 10, 2013.\n Willard E. Merkel, Merkel & Associates, Portland, argued\nthe cause for petitioner on review.\n Kimberly Sewell, Portland, argued the cause and filed\nthe brief for respondent on review.\n Kristian Roggendorf, O’Donnell Clark & Crew LLP,\nPortland, filed a brief on behalf of amicus curiae Oregon\nTrial Lawyers Association.\n BREWER, J.\n The decision of the Court of Appeals and the judgment of\nthe circuit court are affirmed.\n Baldwin, J., dissented and filed an opinion.\n\n\n\n\n______________\n\t * Appeal from Multnomah County Circuit Court, Christopher Marshall,\nJudge. 247 Or App 666, 271 P3d 138 (2012).\n\f536\t Bell v. Tri-Met\n\n Plaintiff appeals from a decision of the Court of Appeals that affirmed the\ncircuit court’s dismissal of plaintiff ’s claim on the ground that it was filed after\nthe two-year statute of limitations applicable to personal injury claims against\npublic bodies provided by ORS 30.275(9) had expired. Plaintiff argues that his\nclaim was properly subject to the three-year period provided by ORS 30.075(1),\nand, thus, was timely commenced. Held: ORS 30.075(1) provides a “limitation on\nthe commencement of an action.” Accordingly, the limitations period set out in\nORS 30.075(1) is superseded by ORS 30.275(9) because that statute provides that\nnotwithstanding any other limitations on the commencement of an action, a claim\nfor loss or injury against a public body like defendant must be commenced within\ntwo years of the alleged loss or injury.\n The decision of the Court of Appeals and the judgment of the circuit court are\naffirmed.\n\fCite as 353 Or 535 (2013)\t537\n\n\t BREWER, J.\n\t The question in this case is whether plaintiff ’s\nsurvival action against a public body must be brought\nwithin two years or three years of the alleged injury. Either\nof two statutes supplies the answer. On the one hand, ORS\n30.275(9) provides that, “notwithstanding any other * * * \nstatute providing a limitation on the commencement of an\naction,” a tort action against a public body must be filed\nwithin two years after the alleged loss or injury. On the\nother hand, ORS 30.075(1) provides that survival actions\nfor personal injuries must be brought within three years\nof the alleged loss or injury. The determinative inquiry is\nwhether ORS 30.075(1) constitutes a “statute providing a\nlimitation on the commencement of an action.” If it does, then\nit falls within the notwithstanding clause of ORS 30.275(9),\nand the two-year limitation period set out in that statute\napplies. For the reasons that follow, we conclude that ORS\n30.075(1) does constitute a “statute providing a limitation\non the commencement of an action,” thus triggering the two-\nyear limitation period of ORS 30.275(9).\n\t We take the undisputed facts and some of the\nprocedural history of the case from the opinion of the Court\nof Appeals.\n “On September 4, 2007, decedent allegedly sustained\n personal injuries while disembarking from a bus operated\n by [defendant]. Decedent died, on September 9, 2008, from\n causes unrelated to the bus accident. On September 18,\n 2009—more than two years, but less than three years,\n after the bus incident—plaintiff, decedent’s personal\n representative, filed a complaint alleging that [defendant]\n had negligently injured decedent and seeking damages for\n the alleged personal injuries.\n \t “[Defendant] moved to dismiss, ORCP 21 A(9),\n contending that plaintiff’s action was barred under ORS\n 30.275(9) the statute of limitations for claims under the\n Oregon Tort Claims Act (OTCA), ORS 30.260 to 30.300.\n \t “* * * * \n \t “In response, plaintiff asserted that, given decedent’s\n intervening death, the complaint was subject not to the\n\f538\t Bell v. Tri-Met\n\n two-year limitation of ORS 30.275(9) but, instead, to the\n three-year period described in ORS 30.075(1).\nBell v. Tri-Met, 247 Or App 666, 668-69, 271 P3d 138 (2012)\n(footnotes omitted). The trial court concluded that ORS\n30.275(1) established a limitation on the commencement of\na survival action for personal injuries that is superseded,\nin a tort action against a public body, by the two-year limit\nset out in ORS 30.275(9). Accordingly, the court granted\ndefendant’s motion to dismiss on the ground that plaintiff\nhad commenced the action more than two years after the\ninjury-producing incident.\n\t Plaintiff appealed, and the Court of Appeals affirmed.\nThe court held that, “with respect to an action for personal\ninjury brought by a decedent’s personal representative\nagainst a public body, the two-year limitation for the\ncommencement of an action in ORS 30.275(9) precludes\nthe application of the three-year limitation provided in\nORS 30.075(1).” Bell, 247 Or App at 675. Because it had\nconcluded in an earlier decision that ORS 30.075(1) is a\n“statute providing a limitation on the commencement of\nan action,” Giulietti v. Oncology Associates of Oregon, 178\nOr App 260, 36 P3d 510 (2001), the court held that ORS\n30.075(1) fell within the scope of the notwithstanding clause\nof ORS 30.275(9).\n\t On review, plaintiff contends that the Court of\nAppeals erred in concluding that ORS 30.275(9) precludes\napplication of the three-year limitation period set out in\nORS 30.075(1). According to plaintiff, that three-year period\nmerely extends or tolls the underlying two-year limitation\nperiod for personal injury claims set out in ORS 12.110 in\ncircumstances where the decedent has died during that\nperiod without bringing an action. Therefore, plaintiff\nurges, ORS 30.075(1) does not, itself, constitute a limitation\non the commencement of an action that is subject to the\nnotwithstanding clause of ORS 30.275(9).\n\t In support of that argument, plaintiff relies on\nthis court’s decision in Baker v. City of Lakeside, 343 Or 70,\n83, 164 P3d 259 (2007). At issue in Baker was whether the\nnotwithstanding clause in ORS 30.275(9) applied to ORS\n12.020(2), a statute that permits service of process to relate\n\fCite as 353 Or 535 (2013)\t539\n\nback to the date on which the complaint was filed.1 We held\nthat it did not, because “the notwithstanding clause in ORS\n30.275(9) applies only to those provisions of ORS chapter\n12 and other statutes that provide a limitation on the\ncommencement of an action,” and ORS 12.020 was not such\na statute. Baker, 343 Or at 83 (emphasis added). In reaching\nthat conclusion, we discussed in detail the legislative history\nof ORS 30.275(9). Id. at 77-82. In summary, we observed\nthat:\n \t “Nothing in the legislative history suggests that the\n legislature intended to depart from the longstanding rule of\n procedure found in ORS 12.020(2), nor does it suggest that\n the legislature intended to deny children and persons with\n mental disabilities bringing OTCA claims the advantage of\n a tolling provision that is available to them in every other\n action.”\nId. at 82 (emphasis added); see also ORS 12.160 (providing\nthat, if a cause of action accrues at a time when the person\nentitled to bring that action is either under 18 years of age or\nsuffering from a mental disability, the statute of limitations\napplicable to the action is tolled for so long as the person\nremains under 18 or as long as the person’s mental disability\npersists).\n\t As plaintiff understands it, Baker holds that statutes\nsuch as ORS 12.160 that toll or extend underlying statutes\nof limitation are not “limitations on the commencement of\nan action” and, thus, apply to actions against public bodies\ndespite ORS 30.275(9).2 Plaintiff asserts that ORS 30.075(1)\nsimilarly extends an underlying limitation period—the two-\nyear time limit in ORS 12.110—to three years when an\ninjured person dies before bringing an action. It follows,\nplaintiff reasons, that ORS 30.075(1) constitutes a tolling\n\t 1\n ORS 12.020(2) provides:\n \t “If the first publication of summons or other service of summons in an\n action occurs before the expiration of 60 days after the date on which the\n complaint in the action was filed, the action against each person whom the\n court by such service has acquired jurisdiction shall be deemed to have been\n commenced upon the date on which the complaint in the action was filed.”\n\t 2\n The parties and amicus debate at length whether our reference in Baker\nto tolling statutes falling outside the notwithstanding clause of ORS 30.275(9)\nwas part of the core holding of that case. For our purposes here, it is sufficient to\nassume that it was.\n\f540\t Bell v. Tri-Met\n\nprovision that is not superseded by the notwithstanding\nclause in ORS 30.275(9). Defendant replies that ORS\n30.075(1) neither extends nor tolls an underlying statute\nof limitations but, rather, constitutes a separate statute of\nlimitations for survival actions that are brought, in the first\ninstance, by a decedent’s personal representative. Therefore,\ndefendant asserts, the Court of Appeals correctly concluded\nthat the three-year period established in ORS 30.075(1) is\n“a limitation on the commencement of an action” that is\nsuperseded by the notwithstanding clause of ORS 30.275(9).\n\t Because this case presents a question of\ninterpretation involving the interplay between two statutes,\nwe resolve it under the principles set out in State v. Gaines,\n346 Or 160, 206 P3d 1042 (2009); that is, we examine the\ntext and context of the statute and any legislative history\nthat appears to be helpful at that level of analysis. Dept.\nof Human Services v. G. D. W., 353 Or 25, 34, 292 P3d 548\n(2012). The pertinent context includes “other provisions\nof the same statute and other related statutes, as well as\nthe preexisting common law and the statutory framework\nwithin which the statute was enacted.” Fresk v. Kraemer,\n337 Or 513, 520-21, 99 P3d 282 (2004).\n\t ORS 30.075(1) provides:\n \t “Causes of action arising out of injuries to a person,\n caused by the wrongful act or omission of another, shall\n not abate upon the death of the injured person, and the\n personal representatives of the decedent may maintain\n an action against the wrongdoer, if the decedent might\n have maintained an action, had the decedent lived,\n against the wrongdoer for an injury done by the same\n act or omission. The action shall be commenced within\n the limitations established in ORS 12.110 by the injured\n person and continued by the personal representatives\n under this section, or within three years by the personal\n representatives if not commenced prior to death.”\nORS 30.275(9) provides:\n \t “Except as provided in ORS 12.120, 12.135 and\n 659A.875, but notwithstanding any other provision of ORS\n chapter 12 or other statute providing a limitation on the\n commencement of an action, an action arising from any act\n\fCite as 353 Or 535 (2013)\t541\n\n or omission of a public body or an officer, employee or agent\n of a public body within the scope of ORS 30.260 to 30.300\n shall be commenced within two years after the alleged loss\n or injury.”\n\n\t As we explained in Baker, the “notwithstanding\nclause” of ORS 30.275(9) “applies only to those provisions\nof ORS chapter 12 and other statutes that provide a\nlimitation on the commencement of an action.” Baker, 347\nOr at 83. Such a limitation is, in different words, a statute\nof limitations. Id. at 82-83 (“[I]n amending what is now ORS\n30.275(9), the legislature focused solely on the question of\nstatutes of limitations.”). Thus, the dispositive question in\nthis case is whether the three-year time limit for bringing\na survival action in ORS 30.075(1) establishes a “limitation\non the commencement of an action”; that is, whether it is a\nstatute of limitations.\n\t A statute of limitations is “[a] law that bars claims\nafter a specified period; specif., a statute establishing a time\nlimit for suing in a civil case, based on the date when the claim\naccrued (as when the injury occurred or was discovered).”\nBlack’s Law Dictionary 1450-51 (8th ed 2004). We note first\nthat, like the two-year statute of limitations, ORS 12.110(1),\nthe three-year limit in ORS 30.075(1) is measured from\nthe accrual of the cause of action, not from the death of the\ndecedent or any other interrupting event. Consistently with\nthat understanding, as the Court of Appeals observed, “the\nthree-year provision of ORS 30.075(1) is—like any statute\nof limitations—defined and measured solely by reference to\nthe accrual of the cause of action.” Bell, 247 Or App at 674.\n\t Plaintiff nevertheless asserts that the three-year\nlimit in ORS 30.075(1) is not a statute of limitations but,\nrather, is a tolling provision that, like ORS 12.160, is not\nsuperseded by ORS 30.275(9). First, plaintiff notes that\ntolling provisions extend the time for filing an action to\nwhich, but for tolling, a shorter limitation period would apply.\nPlaintiff observes that, based on a decedent’s intervening\ndeath, ORS 30.075(1) affords the decedent’s personal\nrepresentative three years within which to commence the\nsame action that the decedent, if he or she had survived,\nwas required to commence within two years.\n\f542\t Bell v. Tri-Met\n\n\t In addition to the arguments that plaintiff\nmakes, amicus Oregon Trial Lawyers Association (OTLA)\nasserts that ORS 30.075(1) applies only to independent,\n“freestanding” limitations on the commencement of an\naction. OTLA asserts that ORS 30.075(1) merely extends\nor tolls a different statute of limitations, ORS 12.110, and\nthat the three-year limit in ORS 30.075(1) therefore is not\nsuperseded by the two-year limitation period set out in ORS\n30.275(9). Because OTLA’s reasoning amounts to a variant\nof plaintiff’s theory, we address those arguments together.\n\t As often is the circumstance with statutory\nconstruction, the framing of the analysis of the statutes at\nissue matters. So, too, in this case, the outcome of which\ndepends on whether ORS 30.075(1) is interpreted to\nimpose a three-year statute of limitations or, alternatively,\nmerely toll or extend an underlying statute of limitations.\nHere, there is no neat solution, and the best answer lies in\nsifting the analytical sand for probability, not certainty, of\nlegislative intent.\n\t Although plaintiff argues that ORS 30.075(1) is a\n“tolling” statute, that is not correct. A tolling statute is “[a]\nlaw that interrupts the running of a statute of limitations in\ncertain situations, as when the defendant cannot be served\nwith process in the forum jurisdiction.” Black’s at 1525.\nUnlike a tolling statute, the “or within three years” clause\nof ORS 30.075(1) does not “interrupt” the running of an\notherwise applicable two-year statute of limitations, ORS\n12.110(1). Instead, it establishes a separate limitation period\nfor commencing an action to enforce rights and liabilities\nthat the legislature first created in the same statute.\n\t ORS 30.075(1) was enacted in 1965. Or Laws 1965,\nch 620, § 4. Before ORS 30.075(1) was enacted, ORS 121.010\n(1963) had provided that\n \t “[a] cause of action arising out of an injury to the person\n dies with the person of either party, except as provided\n in ORS 30.020[3] and 30.080;[4] but the provisions of ORS\n\t 3\n ORS 30.020 (1963) provided for an action by a personal representative for\nwrongful death.\n\t 4\n ORS 30.080 (1963) provided that causes of action arising out of the injury or\ndeath of a person shall not abate upon “the death of the wrongdoer.”\n\fCite as 353 Or 535 (2013)\t543\n\n 30.020 and 121.010 to 121.100 shall not abate the action\n mentioned in ORS 13.090,[5] or defeat or prejudice the right\n of action given by ORS 30.010.[6]”\n\nORS 121.010 had been part of Oregon law since before\nstatehood. See General Laws of Oregon, Civ Code, ch IV,\ntitle VI, § 365, p 241 (Deady 1845-1864). The legislature\nrepealed ORS 121.010 when it enacted ORS 30.075(1). See\nOr Laws 1965, ch 620, § 1. A survival action such as ORS\n30.075(1), unlike the wrongful death statute, ORS 30.020,\ndoes not constitute an entirely new claim for relief. See, e.g.,\nHayes v. Hansen, 175 Or 358, 397-99, 154 P2d 202 (1944)\n(distinguishing between characteristics of wrongful death\nand survival actions). Viewed in that light, it makes sense\nto provide, as the legislature did in ORS 30.075(1), that a\nsurvival action for personal injury does not “abate” upon\nthe death of an injured person. When a claim “abates” it\nis “nullif[ied], and “ma[d]e void[,]” Webster’s Third New\nInt’l Dictionary 2 (unabridged ed 2002), much the same\nas a personal injury claim “die[d] with the person” under\nformer ORS 121.010. Thus, when the legislature provided\nin ORS 30.075(1) that such an action does not abate on the\ndecedent’s death, it expressly reversed the prior state of the\nlaw. That is, by enacting ORS 30.075(1) and simultaneously\nrepealing ORS 121.010, the legislature created new rights\nand liabilities arising from personal injury where an\ninjured person dies before or after commencing an action.\nSee Wiebe v. Sealy, 215 Or 331, 371-72, 335 P2d 379 (1959)\n(describing survival statute for claims against deceased\ntortfeasor as creating “new rights and liabilities” that only\napply prospectively). In particular, the legislature created\nsurvival rights and liabilities for personal injuries in the\nfirst sentence of ORS 30.075(1); in the second sentence of the\nsame provision, the legislature established the limitation\nperiod for the commencement of such an action by the\npersonal representative of a deceased claimant: three years\nfrom the accrual of the action. Thus, a survival statute such\n\n\t 5\n ORS 13.090 (1963) provided that the death of a party after a verdict did not\nabate the cause of action, but that “the action shall proceed thereafter in the same\nmanner as in cases where the cause of action survives.”\n\t 6\n ORS 30.010 (1963) provided that a father or mother, under certain\ncircumstances, could maintain an action “for the injury or death of a child.”\n\f544\t Bell v. Tri-Met\n\nas ORS 30.075(1) is at once derivative and at the same time\nit creates a new set of rights and obligations between the\ntortfeasor and the decedent’s personal representative that\ndid not previously exist.\n\t Consistently with that understanding, we have\ndescribed a rule that implements a portion of ORS 30.075(1)\nas the equivalent of a “statute of limitations.” In Mendez\nv. Walker, 272 Or 602, 538 P2d 939 (1975), we construed\nformer ORS 13.080, the statutory predecessor to ORCP 34.7\nORS 13.080 (1969) provided:\n \t “(1) No action or suit shall abate by the death or\n disability of a party, or by the transfer of any interest\n therein.\n \t “(2) In case of the death of a party, the court shall, on\n motion, allow the action or suit to be continued:\n \t “ * * * \n \t “(b) Against his personal representative or successors\n in interest at any time within four months after the date of\n the first publication of notice to interested persons, but not\n more than one year after his death.”\nIn Mendez, we stated that “[t]he year allowed by ORS\n13.080(2)(b) in which to substitute as a party the\nrepresentative of decedent’s estate has been construed as\nthe equivalent of a statute of limitations.” 272 Or at 604-05.\nWe concluded that the plaintiff’s claim was time-barred in\nthat case because the personal representative had not been\nsubstituted for the deceased plaintiff within the one-year\ntime limit set by ORS 13.080(2)(b). Id. at 606.\n\t 7\n ORCP 34 provides, in pertinent part:\n \t “A No action shall abate by the death or disability of a party, or by the\n transfer of any interest therein, if the claim survives or continues.\n \t “B In case of the death of a party, the court shall, on motion, allow the\n action to be continued:\n \t “B(1) By such party’s personal representative or successors in interest at\n any time within one year after such party’s death; or\n \t “B(2) Against such party’s personal representative or successors in interest\n unless the personal representative or successors in interest mail or deliver\n notice including the information required by ORS 115.003 (3) to the claimant\n or to the claimant’s attorney if the claimant is known to be represented, and\n the claimant or his attorney fails to move the court to substitute the personal\n representative or successors in interest within 30 days of mailing or delivery.”\n\fCite as 353 Or 535 (2013)\t545\n\n\t As does ORCP 34, former ORS 13.080 provided the\nsole procedural means for continuing a previously commenced\naction that survives an injured claimant’s death under ORS\n30.075(1). In addition, like ORS 30.075(1), former ORS\n13.080 provided (and ORCP 34 now provides) that a subject\naction does not “abate” on a decedent’s death. By enacting\nORS 30.075(1) in light of the then-existing procedural rule\nin former ORS 13.080, the legislature presumably sought\nto limit the time in which a personal representative may\ncommence an action in the same manner that it limited the\ntime in which a personal representative may be substituted\nin a pending action. In holding that the one-year limit for\nsubstitution in the corresponding procedural rule is the\nequivalent of a limitation on the commencement of an action,\nMendez is consistent with the conclusion that ORS 30.075(1)\nlikewise prescribes limitations on the commencement or\ncontinuation of survival actions.\n\t That conclusion is reinforced by the legislative\nhistory of the 1981 amendment to ORS 30.275—which\nproduced the notwithstanding clause of subsection (9) of\nthat statute—that we elaborated in Baker. In that case,\nwe placed particular weight on the statements of Senator\nFadeley, who had “repeatedly had stated that two statutes\nof limitations should not apply to [Oregon Tort Claims\nAct] claims: the six-year statute of limitations for property\ndamage and the three-year statute of limitations for\nwrongful death. The notwithstanding clause mirrors that\nconcern.” Baker, 343 Or at 82. Earlier in the debate over\nthe bill that would become ORS 30.275(9), Senator Fadeley\nhad engaged Senator Kulongoski in a colloquy, asking him\nwhether he “was intending that the existing two-year statute\non personal injury apply and that the two-year general\nstatute on tort claims act still apply.” Senator Kulongoski\nreplied: “that was correct.” Id. at 79.\n\t Although the fit is not precise, a wrongful death\naction under ORS 30.020(1)—which also is subject to a\nthree-year statute of limitations, rather than the two-year\nlimit of ORS 12.110(1)—is more akin to a survival action\nunder ORS 30.075(1) than the latter is to a tolling provision\nsuch as ORS 12.160. For both a wrongful death action and\na survival action, the legislature has created rights and\n\f546\t Bell v. Tri-Met\n\nliabilities that did not previously exist in statute or at\ncommon law. Moreover, in each circumstance, the legislature\nestablished a three-year limitation period from the accrual\nof the claim—as opposed to some interrupting event—for\nthe personal representative of the decedent to commence\nan action. In short, the legislature’s determination, where\nthe defendant is a public body, to override the three-year\nstatute of limitations that ordinarily applies to wrongful\ndeath actions supports the conclusion that the comparable\nthree-year limitation period for survival actions under ORS\n30.075(1) must similarly yield to the limit set out in ORS\n30.275(9).8\n\t Having addressed plaintiff’s arguments, we turn\nto the dissent, which, unlike plaintiff, does not regard ORS\n30.075(1) as a tolling statute. Instead, the dissent asserts\nthat ORS 30.075(1) “plainly extends the life of an injury\naction beyond the death of an injured person as set forth\nin the statute.” 353 Or at 552 (Baldwin, J., dissenting). As\npertinent here, we presume that the dissent means to say\nthat, where an injured person failed to commence an action\nfor those injuries while alive, ORS 30.075(1) adds time for\ncommencing an action after the death of the person. That\nmuch is true; but, there is more to the statute than that. The\nlegislature also created a new right of action that otherwise\nwould not have existed and, where the decedent has failed\nto commence an action during his or her life, it accords his\nor her personal representative three years from the accrual\nof the claim to commence the action.\n\t The dissent repeatedly asserts that ORS 30.075(1)\ndoes not provide a limitation on the commencement of an\naction. We disagree. As discussed, that provision contains\ntwo different sentences that accomplish two different\nthings. The first sentence provides that a personal injury\naction “shall not abate” upon the death of the injured person.\nWe readily acknowledge the point. The second sentence,\nhowever, goes further and says when the nonabated action\nmust commence. It provides that an action must be brought\nwithin two years if commenced before death and three years\n\t 8\n The foregoing analysis also answers OTLA’s assertion that the three-year\nlimit in ORS 30.075(1) is not an independent or, in its terms, “freestanding”\nlimitation on the commencement of an action for purposes of ORS 30.275(9).\n\fCite as 353 Or 535 (2013)\t547\n\nif commenced after death. As explained above, that is what\nstatutes of limitation do.\n\t That leads to the considerable attention that\nthe dissent devotes to characterizing ORS 30.075(1) as a\n“survival statute.” The reasoning apparently is that, because\nthe statute declares in one part that actions shall not abate\non the death of the injured person, nothing in that statute\ncan be a statute of limitation. But, again, there is more\nthan that going on in the provision. The fact that the first\nsentence can be classified as a “survival statute” does not\nlogically mean that the second sentence does not provide a\nlimitation on the commencement of the action. In many, if\nnot most, cases to which ORS 30.075(1) applies, the second\nsentence of the statute unarguably acts as a statute of\nlimitation. If an action is commenced by the injured person\nduring his or her life, the first clause of the second sentence\nprovides that the action “shall be commenced within the\nlimitations established in ORS 12.110 by the injured person\nand continued by the personal representatives under this\nsection[.]” That is, even though the statute provides for the\nsurvival of such actions, it also limits the time for their\ncommencement.\n\t Moreover, the expanded three-year limitation\nprescribed in the second clause of the second sentence of the\nstatute for actions filed by a personal representative after\nthe injured person’s death is no less a statute of limitations\nmerely because the period within which an action must\nbe commenced is longer. As discussed, like the two-year\nlimitation imported from ORS 12.110 for actions filed by the\ninjured person, the three-year period runs from the accrual\nof the claim, not some intervening event. That symmetry\nstrongly suggests that the legislature intended for the second\nsentence of ORS 30.075(1) to prescribe separate limitations\non the commencement of the two categories of survival\nactions that the first sentence of the statute authorized to\nbe brought or maintained.\n\t Finally, the dissent gives considerable attention\nto decisions from other jurisdictions about the nature\nof survival actions and how they differ from statutes of\nlimitation. However, each of those cases involved distinct\n\f548\t Bell v. Tri-Met\n\nstatutory frameworks and correspondingly distinct legal\nissues from those confronting us here. In Swindle v. Big\nRiver Broadcasting Corp., 905 S.W.2d 565 (Tenn App 1995),\nfor example, the court construed a statute that provided\nfor additional time to sue a dissolved corporation, where\nthe triggering date for bringing a survival action was the\ndate of an intervening event, that is, corporate dissolution,\nnot, as is the circumstance with ORS 30.075(1), the date\nof accrual of the underlying claim. 905 S.W.2d at 567. The\nsame type of statute also was at issue in the South Dakota,\nNebraska and Texas cases on which the dissent relies. See\nM.S. v. Dinkytown Day Care Center, Inc., 485 NW2d 587,\n588 (SD 1992); Keefe v. Glasford’s Enterprises, Inc., 532\nNW2d 626, 629 (Neb 1995); Gomez v. Pasadena Health Care\nManagement Inc., 246 S.W.3d 306, 314, (Tx App 14th Dist\n2008). Accordingly, those decisions do not meaningfully\ninform our task, at least not in the way the dissent posits.9\n\t Because the three-year time limit in ORS 30.075(1)\nis a limitation on the commencement of a survival action\nfor personal injuries by a personal representative, it is\nsuperseded by the two-year limitation period for the\ncommencement of a tort action against a public body under\nORS 30.275(9). Plaintiff failed to commence this action\nwithin that two-year period. It follows that the trial court\ndid not err in dismissing it.\n\t The decision of the Court of Appeals and the\njudgment of the circuit court are affirmed.\n\t BALDWIN, J., dissenting.\n\t I am unable to join in the majority’s opinion because\nthe majority has adopted an unreasonable construction of\nORS 30.075(1) and ORS 30.275(9). Moreover, the majority\n\n\t 9\n We note, however, that in M.S., the South Dakota Supreme Court made a\npoint that we have made about survival actions with which the dissent appears to\ndisagree; namely, that, a survival action creates a substantive right or claim. 353\nOr at 557-58 (Baldwin, J., dissenting). In concluding that a minority tolling statute\ndid not extend the time for commencing an action under a corporate survival\nstatute, the South Dakota court stated: “The fact a survival statute essentially\ncreates a right or claim that would not exist but for the statute is key to this court’s\ndetermination of whether the minority tolling provision in [the tolling statute] is\napplicable to the corporate survival period established by [the survival statute].”\nM.S., 485 NW2d at 589 (emphasis added).\n\fCite as 353 Or 535 (2013)\t549\n\nopinion is inconsistent with our recent holding in Baker v.\nCity of Lakeside, 343 Or 70, 164 P3d 259 (2007). In my view,\nplaintiff’s personal representative timely filed this injury\naction under ORS 30.075(1), and the action was not subject\nto the time limitation established by ORS 30.275(9).\n\nA. The text, context, and legislative history disclose that\n ORS 30.075(1) is not subject to the time provisions of\n ORS 30.275(9).\n\n\t Plaintiff, as a passenger on a bus operated by\ndefendant, a public body, allegedly sustained personal\ninjuries caused by defendant’s negligence. Plaintiff later\ndied from unrelated causes, and his personal representative\ntimely filed a negligence action for damages within the time\nallowed to commence a survival action under ORS 30.075(1).\nThat statute provides:\n\n \t “Causes of action arising out of injuries to a person,\n caused by the wrongful act or omission of another, shall\n not abate upon the death of the injured person, and the\n personal representatives of the decedent may maintain an\n action against the wrongdoer, if the decedent might have\n maintained an action, had the decedent lived, against the\n wrongdoer for an injury done by the same act or omission.\n The action shall be commenced within the limitations\n established in ORS 12.110 by the injured person and\n continued by the personal representatives under this\n section, or within three years by the personal representatives\n if not commenced prior to death.”\n\nORS 30.075(1) (emphasis added).\n\n\t The legislature enacted ORS 30.075(1) in 1965. Or\nLaws 1965, ch 620, § 4. By its express terms, ORS 30.075(1)\nprovides that an action arising out of injuries to a person\n“shall not abate upon the death of the injured person,”\nand further provides that the action may be commenced\n“within three years by the personal representative, if not\ncommenced prior to death.” Thus, the plain language of this\nsurvival statute allowed plaintiff’s personal representative\nto commence this action because plaintiff did not commence\nan action for his injuries prior to his death.\n\f550\t Bell v. Tri-Met\n\n\t In 1981, making no specific reference to that earlier\nenacted survival statute, the legislature amended the\nOregon Tort Claims Act (OTCA) and added what is now\nORS 30.275(9). Or Laws 1981, ch 350, § 1. That statute now\nprovides:\n \t “Except as provided in ORS 12.120, 12.135 and\n 659A.875, but notwithstanding any other provision of ORS\n chapter 12 or other statute providing a limitation on the\n commencement of an action, an action arising from any act\n or omission of a public body or an officer, employee or agent\n of a public body within the scope of ORS 30.260 to 30.300\n shall be commenced within two years after the alleged loss\n or injury.”\nORS 30.275(9) (emphasis added).\n\t In this case, the ambiguity requiring analysis\narises from the legislature including a time element for the\ncommencement of an action by a personal representative\nwhen it extended injury actions beyond the death of an\ninjured party. ORS 30.075(1) allows a personal representative\nto commence an action “within three years * if not\n * \ncommenced prior to [the] death [of the injured person].”\nBased on that language in the context of a survival statute,\nthe majority has erroneously characterized ORS 30.075(1)\nas a “statute providing a limitation on the commencement\nof an action” within the meaning of ORS 30.0275(9).\n\t I agree with the majority that we resolve any\nambiguity involving the interplay between statutes under\nthe principles set out in State v. Gaines, 346 Or 160, 206\nP3d 1042 (2009). However, I emphasize that Gaines (and the\nPGE methodology it modified) was developed and adopted\n “[to] best serve the paramount goal of discerning the\n legislature’s intent. In that regard, as this court and other\n authorities long have observed, there is no more persuasive\n evidence of the intent of the legislature than the words\n by which the legislature undertook to give expression\n to its wishes. Only the text of a statute receives the\n consideration and approval of a majority of the members\n of the legislature, as required to have the effect of law. The\n formal requirements of lawmaking produce the best source\n from which to discern the legislature’s intent, for it is not\n\fCite as 353 Or 535 (2013)\t551\n\n the intent of the individual legislators that governs, but the\n intent of the legislature as formally enacted into law[.]”\nId. at 171 (internal citations and quotation marks omitted).\n\t The “paramount goal” of discerning legislative\nintent reflects a judicial understanding that legislative\nenactments must be enforced appropriately under our form\nof government. The legislature has set out the general rule\nfor construction of statutes by the judicial branch as follows:\n \t “In the construction of a statute, the office of the judge\n is simply to ascertain and declare what is, in terms or in\n substance, contained therein, not to insert what has been\n omitted, or to omit what has been inserted; and where there\n are several provisions or particulars such construction is, if\n possible, to be adopted as will give effect to all.”\nORS 174.010.\n\t Here, examination of the text of the statutes\nunder consideration is fairly straightforward. Included in\nthe critical text of ORS 30.075(1) are the words “shall not\nabate upon the death of the injured person.” The meaning\nof the phrase “shall not abate” is unambiguous. In a legal\ncontext, the word “abate” means “a: to bring entirely\ndown : DEMOLISH : put an end to : do away with <~ a\nnuisance> b: nullify : make void .”\nWebster’s Third New Int’l Dictionary 2 (unabridged ed\n2002) (boldface omitted). Similarly, Black’s Law Dictionary\ndefines “abatement,” in part, as “[t]he act of eliminating\nor nullifying.” Black’s Law Dictionary 3 (9th ed 2009). In\nMendez v. Walker, 272 Or 602, 603 n 1, 538 P2d 939 (1975),\nwe indicated that the abatement of an injury action upon\nthe death of a party means “the action is utterly dead.”\n\t We must also examine the last full sentence of ORS\n30.075(1), which expands the time allowed for commencing a\nsurvival action. If an “injured person” commences an action\nwithin two years, it may be “continued by the personal\nrepresentative under this section.” If not commenced “prior\nto [the injured person’s] death,” the action may be commenced\n“within three years by the personal representative.” That\nenactment is based on the legislature’s determination that\nsuch an action will survive for an additional period of time\n\f552\t Bell v. Tri-Met\n\nbeyond the death of the injured person. In enacting ORS\n30.075(1), the legislature has expressed an intention that a\npersonal representative may have up to an additional year\nbeyond the two-year limitation established by ORS 12.110\nto commence an action under certain circumstances. Neither\nthe majority or the defendant has identified an ambiguity in\nthe text of ORS 30.075(1).\n\t In sum, ORS 30.075(1) plainly extends the life of\nan injury action beyond the death of an injured person as\nset forth in the statute. The statute establishes a procedure\nwhereby a personal representative may commence an action\nif the injured person dies before the two-year time limit\nestablished by ORS 12.110. If an injured person dies after\nthe two-year period has elapsed, a personal representative\nis allowed up to an additional year to commence that action.\nBy its terms, the purpose and function of this survival statute\nis to extend the life of any injury action—not restrict it. As\na matter of procedure, the statute allows additional time for\na personal representative to commence an action. I employ\nthe legal meaning of the word “procedure,” which is defined\nas “1. A specific method or course of action. 2. The judicial\nrule or manner for carrying on a civil lawsuit or criminal\nprosecution.” Black’s at 1323 (boldface omitted). Obviously,\nwithout the insertion of a time element in the statute, the\nlife of a survival action would be of unlimited duration. The\ninsertion of a time element and a specific method for carrying\non the survival action does not make the survival statute\na statute of limitation. As will be explained, to conclude\notherwise exalts form over substance and misapprehends\nthe nature of ORS 30.075(1) as a survival statute.\n\t An examination of the legislative history relating\nto ORS 30.075(1) confirms that the legislative purpose in\nenacting this survival statute was to give additional life\nto injury actions under the circumstances set forth in the\nstatute. Prior to the 1965 enactment of ORS 30.075(1), the\nlongstanding rule in Oregon, which was embodied in ORS\n121.010 (1963), provided that a “cause of action arising\nout of an injury to the person dies with the person.” That\nprohibition was subject to a few exceptions for wrongful\ndeath actions, actions related to the injury of a child, and\nactions that achieved a verdict before the party’s death, but\n\fCite as 353 Or 535 (2013)\t553\n\notherwise operated to preclude any representative from\ncontinuing or bringing a personal injury cause of action on\nbehalf of a deceased person. By enacting ORS 30.075(1),\nthe legislature repealed the prohibition contained in ORS\n121.010. See Or Laws 1965, ch 620, § 1. In discussing the\nprovisions contained in the 1965 bill, Representative\nHarlan noted that “all causes of action survive in Oregon\nexcept a cause of action for personal injury. This bill * \n \nwould correct that in line with the laws of some 47 states.”\nTape Recording, Senate Judiciary Committee, HB 1517,\nApr 26, 1965, Tape 3, Side 2 (statement of Rep Harlan); see\nalso Minutes, House Judiciary Committee, Mar 30, 1965, 2\n(noting that the bill was designed to allow the survival of a\ncause of action after death).\n\t I next turn to the text of ORS 30.275(9) to determine\nwhether it relates to ORS 30.075(1). ORS 30.275(9) requires\nthat an action against a public body within the scope of\nthe OTCA shall be commenced within two years after the\nalleged loss or injury, “notwithstanding any other provision\nof ORS chapter 12 or other statute providing a limitation\non the commencement of an action.” The critical text here\nis “statute providing a limitation on the commencement of\nan action.” If ORS 30.075(1) is not a “statute providing a\nlimitation” within the meaning of ORS 30.275(9), the two-\nyear time limitation of ORS 30.275(9) does not apply. The\nword “limitation” generally means “a restriction or restraint\nimposed from without (as by law, custom, or circumstances)”\nand, more specifically, “a time assigned for something; specif\n: a certain period limited by statute after which actions,\nsuits, or prosecutions cannot be brought in the courts.”\nWebster’s at 1312. Similarly, Black’s Law Dictionary defines\n“limitation” as “1. The act of limiting; the state of being\nlimited. 2. A restriction. 3. A statutory period after which a\nlawsuit or prosecution cannot be brought in court.” Black’s\nat 1012 (boldface omitted). Thus, a limitation is a restriction\nor restraint on when an action can be commenced by a party.\nHence, the provisions of ORS 30.275(9) are unambiguous.\nSee also Baker, 343 Or at 85 (Durham, J., concurring) (“I\nconclude that ORS 30.275(9) is not ambiguous, and I draw\nthat conclusion from an examination of statutory text and\ncontext.”).\n\f554\t Bell v. Tri-Met\n\n\t Notably, in Baker, this court thoroughly reviewed\nthe legislative history of ORS 30.275(9) in examining the\ninterplay of that statute with ORS 12.020, which defines\nwhen an action is deemed to have been commenced. We\nheld that the notwithstanding clause of ORS 30.275(9)\ndoes not bar the application of ORS 12.020 to OTCA claims.\nIn so doing, we determined that the legislative history\nof the notwithstanding clause did not disclose a specific\nexplanation as to why the drafters added the clause.\nHowever, we concluded that “the legislative history confirms\nthat, in amending what is now ORS 30.275(9), the legislature\nfocused solely on the question of statutes of limitations.”\nBaker, 343 Or at 82-83.\n\tIn Baker, based on the legislative history, we did\nnot consider it reasonable to assume that the legislature\nintended to cut off the additional time to commence an\naction provided for under ORS 12.020(2). That statute\nallowed an additional 60 days to serve process beyond the\ntwo-year statute of limitation enacted under the OTCA. We\nexplained:\n \t “Nothing in the legislative history suggests that the\n legislature intended to depart from the longstanding rule of\n procedure found in ORS 12.020(2), nor does it suggest that\n the legislature intended to deny children and persons with\n mental disabilities bringing OTCA claims the advantage of\n a tolling provision that is available to them in every other\n action.”\nId. at 82.\n\t Similarly, in this case, nothing in the legislative\nhistory suggests that the legislature, in enacting ORS\n30.275(9), intended to nullify any survival actions it\nearlier established when enacting ORS 30.075(1). That is\nparticularly so when the legislative history relating to ORS\n30.075(1) discloses a legislative purpose to give additional\nlife to injury actions by allowing a personal representative\nto commence an action after the death of the injured person.\nHere, it is not reasonable to assume that the legislature\nconsidered ORS 30.075(1) a “statute providing a limitation\non the commencement of an action” within the meaning of\nORS 30.275(9).\n\fCite as 353 Or 535 (2013)\t555\n\n\t As previously indicated, ORS 30.075(1), operating as\na survival statute, is fundamentally different from a statute\nof limitation, which primarily affects the time within which\na stale action may be brought. This court’s case law sheds\nlight on the nature and purpose of statutes of limitation.\nIn Johnson v. Star Machinery Co., 270 Or 694, 530 P2d 53\n(1974), we stated:\n “In general, there are usually two reasons which are\n advanced as justification for the imposition of such statutes.\n The first concerns the lack of reliability and availability of\n evidence after a lapse of long periods of time. * * \n \t “The second rationale concerns the public policy of\n allowing people, after the lapse of a reasonable time, to\n plan their affairs with a degree of certainty, free from the\n disruptive burden of protracted and unknown potential\n liability[.]”\nId. at 700-01 (citation omitted); see also Wilder v. Haworth,\n187 Or 688, 695, 213 P2d 797 (1950) (commenting on statutes\nof limitation as desirable statutes of repose after the lapse\nof a reasonable period of time); King v. Mitchell, 188 Or 434,\n442, 214 P2d 993 (1950) (same). As previously explained,\nthe insertion of procedural elements into ORS 30.075(1) by\nthe legislature did not make this survival statute a statute\nof limitation.\n\t Considering the text, context, and legislative history\nof ORS 30.075(1) and ORS 30.275(9), I therefore conclude\nthat ORS 30.075(1) is not subject to the time provisions of\nORS 30.275(9). That conclusion is also supported by the\nrationale of Baker, 343 Or 70.\nB. The majority has adopted an unreasonable construction\n of ORS 30.075(1) and ORS 30.275(9).\n\t The majority has adopted an unreasonable\nconstruction of the pertinent statutes and thereby has\nfailed to apprehend the essential purpose of ORS 30.075(1)\nas a survival statute. A “survival statute” is a “law that\nmodifies the common law by allowing certain actions to\ncontinue in favor of a personal representative after the\ndeath of the party who could have originally brought the\naction.” Black’s at 1583. The substantive effect of a survival\n\f556\t Bell v. Tri-Met\n\nstatute is to give additional life to an existing action that\nwould have been destroyed under common law but for the\nlegislative enactment. The nature of a survival statute is\nsharply distinguishable from a statute of limitation, which\naffects the time within which a stale action may be brought.\nSee, e.g., M.S. v. Dinkytown Day Care Center, Inc., 485 NW2d\n587 (SD 1992) (hereinafter Dinkytown); Keefe v. Glasford’s\nEnterprises, Inc., 248 Neb 64, 532 NW2d 626 (1995); Swindle\nv. Big River Broadcasting Corp., 905 S.W.2d 565 (Tenn Ct\nApp 1995).\n\n\t The majority opinion appears to be the only\nreported case in the country where a survival statute has\nbeen held to be a statute of limitation. To the contrary,\nother reported cases bearing on the subject have held\nthat a survival statute, by its very nature, is not a statute\nof limitation. In the context of survival actions against\ndissolved corporations, the Supreme Court of Nebraska has\nrecognized the fundamental difference between a survival\nstatute and a statute of limitation:\n\n “ Section 21-20,104 is a survival statute, not a statute of\n ‘\n limitations, and, as such, gives life to claims which would\n otherwise be extinguished. Absent the survival statute, a\n dissolved corporation could not sue or be sued. Therefore,\n the rights created by the statute are the right of the\n corporation to sue during the survival period and the right\n of others to sue the corporation during the same period.’ ”\n\nKeefe, 248 Neb at 67, 532 NW2d at 629 (citations omitted;\nquoting Licht v. Association Servs., Inc., 236 Neb 616, 623,\n463 NW2d 566, 571 (1990)). The court further explained:\n\n \t “ If § 21-20,104 is a survival statute rather than one\n ‘\n of limitations, not even equity could estop its application.\n For, while a statute of limitations is an period of repose\n designed, if asserted, to prevent recovery on stale claims, a\n survival statute gives life to a substantive right that but for\n the statute would have been destroyed.’ ”\n\nId. at 68, 532 NW2d at 629 (citations omitted; quoting Van\nPelt v. Greathouse, 219 Neb 478, 484, 364 NW2d 14, 19\n(1985)).\n\fCite as 353 Or 535 (2013)\t557\n\n\t The Supreme Court of South Dakota, in the same\ncontext, has also noted the same clear distinction between\nthese two types of statutes:\n “ \n ‘[A] statute of limitations affects the time that a stale\n claim may be brought while a survival statute gives life\n for a limited time to a right or claim that would have\n been destroyed entirely but for the statute. These survival\n statutes arbitrarily extend the life of the corporation to\n allow remedies connected with the corporation’s existence\n to be asserted.’ ”\nDinkytown, 485 NW2d at 587 (quoting Davis v. St. Paul\nFire & Marine Ins. Co., 727 F Supp 549 (DSD 1989)); see\nalso Gomez v. Pasadena Health Care Management, Inc., 246\nS.W.3d 306 (Tex Civ App 2008) (same); Swindle, 905 S.W.2d\n565 (same).\n\t The majority erroneously concludes that, by\nenacting ORS 30.075(1), “the legislature created new rights\nand liabilities arising from personal injury where an injured\nperson dies before or after commencing an action.” Bell v.\nTri-Met, 353 Or at 543. However, it is well established that\na survival action “derives from the claim that a decedent\nwould have had—such as for pain and suffering—if he or\nshe had survived.” Black’s at 1583. The rights and liabilities\nof the parties in a survival action are effectively determined\nas of the time of injury under common law. Those rights and\nliabilities define the action, which survives the death of a\nparty under a survival statute. See, e.g., Hern v. Safeco Ins.\nCo. of Illinois, 329 Mont. 347, 125 P3d 597 (2005) (survival\naction raises claims that came into existence when decedent\nstill alive with personal representative asserting those\nclaims); DeLane ex rel. Delane v. City of Newark, 343 NJ Super\n225, 778 A2d 511 (2001). ORS 30.075(1) simply expands\nthe life of an injury action and provides a procedure for the\nprosecution of the action by a personal representative. It\ndoes not create additional rights and liabilities.\n\t Moreover, the majority’s reliance on Wiebe v. Seely,\n215 Or 331, 335 P2d 379 (1959), for the proposition that\na survival statute creates new rights and liabilities is\nmisplaced. In Wiebe, the court declined to give retroactive\neffect to an amendment to a survival statute passed in\n\f558\t Bell v. Tri-Met\n\n1953 that would have increased the plaintiff’s recovery to\n$20,000, because a lower limit of $15,000 was in effect at the\ntime the plaintiff was injured in 1951. Wiebe thus addresses\nthe retroactive effect of legislation and has no bearing on\nthe statutory construction issues presented in this case.\n\t The majority’s reliance on Mendez v. Walker, 272 Or\n602, 538 P2d 939 (1975), is also misplaced. In Mendez, the\nplaintiff timely filed his injury action, but the defendant died\nbefore the case was brought to trial. Under then-existing\nORS 13.080, the plaintiff was required to file a motion to\nsubstitute a personal representative of the defendant’s\nestate within one year to continue the action. The plaintiff\nfiled the motion two years after the defendant’s death and\nwas therefore precluded from continuing his action. That\nresult is unremarkable because ORS 13.080 did not operate\nfunctionally as a survival statute unless a party timely filed\na motion with the court. The plaintiff did not do so, and\nhis motion was time barred. By contrast, here, plaintiff’s\npersonal representative timely filed this action under ORS\n30.075(1).\n\t Finally, the majority fails to recognize important\nsubstantive differences between a survival action and a\nwrongful death action. It is well established that the two\ntypes of actions are fundamentally different. As previously\ndefined, a “survival action” “derives from the claim that a\ndecedent would have had * if he or she had survived.”\n * \nBlack’s at 1583. A “survival action” is further defined as a\n“lawsuit brought on behalf of a decedent’s estate for injuries\nor damages incurred by the decedent immediately before\ndying. * * In contrast is a claim that the beneficiaries\n * \nmay have in a wrongful-death action, such as for loss of\nconsortium or loss of support from the decedent.” Black’s\nat 1583. Generally, a survival action is designed to recover\ndamages a decedent could have recovered but for his death,\nand a wrongful death action seeks to recover damages to\nbeneficiaries resulting from a decedent’s death. See, e.g.,\nFoncannon v. Phico Ins. Co., 104 F Supp 2d 1091 (WD Ark\n2000); Kaufman v. Cserny, 856 F Supp 1307 (SD Ill 1994);\nShield v. Bayliner Marine Corp., 822 F Supp 81 (D Conn\n1993). For our purposes, it is important to emphasize that\na survival action extends the life of an injury action, and\n\fCite as 353 Or 535 (2013)\t559\n\na wrongful death action establishes a new cause of action.\nThus, a time limitation imposed from outside a survival\nstatute will have a destructive impact on the functional\noperation of the survival statute. Here, the majority has\neffectively nullified the operation of ORS 30.075(1) as\napplied to all injury actions where the defendant is a public\nbody, the injured person dies, and that person did not\ncommence an action within two years of injury. By contrast,\nthe application of ORS 30.275(9) to wrongful death actions\nreduces the time limit for a plaintiff to commence an action\nbut does not nullify the rights of a party under the wrongful\ndeath statute.\n\t By adopting a construction that effectively nullifies\nthe survival provisions of ORS 30.075(1) regarding the\ninjury actions described above, those actions will now abate\nat common law upon the death of such injured persons,\ncontrary to the legislature’s intentions. The majority opinion\nalso creates a trap for unwary family members who do not\ntimely arrange for a personal representative to continue an\naction when an injured person dies in close proximity to the\ntwo-year time limitation established by ORS 12.110. For\nexample, under the majority’s construction, family members\nof an injured person who dies 10 days before the two-year\nlimit expires (with no action previously commenced) will\nhave only those 10 days to determine that the action must be\ncommenced and arrange for a personal representative to do\nso in the wake of the death. It is unlikely that the legislature\nintended those results by enacting ORS 30.275(9).\n\t This court has long recognized the prudential\nvalue of not construing legislative enactments “so as to\nascribe to the legislature the intent to produce what we\nperceive to be an unreasonable result.” McKean-Coffman\nv. Employment Div., 312 Or 543, 552, 824 P2d 410 (1992)\n(citing State v. Galligan, 312 Or 35, 39, 816 P2d 601 (1991));\nsee also Pacific P. & L. v. Tax Com., 249 Or 103, 110, 437\nP2d 473 (1968) (same); Fox v. Galloway, 174 Or 339, 347,\n148 P2d 922 (1944) (duty of court to avoid an unreasonable\nresult in construing statute as consistent with the general\npolicy of the legislature). Here, the majority’s construction\nof ORS 30.275(9) leads to an unreasonable result that is\n\f560\t Bell v. Tri-Met\n\ninconsistent with the legislature’s purpose in enacting ORS\n30.075(1).\n\t Moreover, under the general rule for construction\nof statutes set out by the legislature, this court is obligated\n“to ascertain and declare what is, in terms or in substance.\ncontained therein, * * and where there are several pro-\n * \nvisions or particulars such construction is, if possible, to be\nadopted as will give effect to all.” ORS 174.010. Here, the\nmajority has not adopted a construction of ORS 30.075(1)\nand ORS 30.275(9) that fulfills that obligation.\nC. The majority opinion is inconsistent with Baker.\n\t As previously discussed, we recently held in Baker,\n343 Or 70, that the expanded time (60 days) allowed for\nservice of process provided by ORS 12.020(2) was not a\nlimitation on the commencement of an action within the\nmeaning of ORS 30.275(9):\n \t “Considering the text, context, and legislative history\n of ORS 30.275(9), we hold that the notwithstanding clause\n in ORS 30.275(9) applies only to those provisions of ORS\n chapter 12 and other statutes that provide a limitation\n on the commencement of an action. The notwithstanding\n clause does not bar application of ORS 12.020 to OTCA\n claims. Because plaintiff filed her complaint within two\n years of the accident and served the city within 60 days of\n filing her complaint, her complaint was timely under ORS\n 12.020(2). The city’s motion for summary judgment should\n have been denied.”\nId. at 83.\n\tIn Baker, we essentially viewed ORS 12.020(2)\nas a procedural statute and not as a “statute providing\na limitation” within the meaning of ORS 30.275(9).\nSimilarly, the procedure of allowing one year for a personal\nrepresentative to file an action under ORS 30.075(1) is not\na “statute providing a limitation” within the meaning of\nORS 30.275(9). In my view, the majority has not reasonably\ndistinguished this case from Baker.\n\t Significantly, in Baker, we adopted a reasonable\nconstruction of ORS 30.275(9) and ORS 12.020(2) in a\nmanner that gave effect to both statutes.\t In Baker, we\n\fCite as 353 Or 535 (2013)\t561\n\nconcluded that “the legislative history confirms that, in\namending what is now ORS 30.275(9), the legislature focused\nsolely on the question of statutes of limitations.” 343 Or at\n82-83. Prior to drawing that conclusion, we noted various\nspecific statutes of limitation for various actions discussed\nin the legislative history. We observed that “[n]othing in the\nlegislative history” suggested that the legislature intended\nto depart from the previously established rule of procedure\nprovided for under ORS 12.020 allowing additional time for\nservice of process. Id. at 82. In holding that ORS 30.275(9)\ndoes not bar the application of ORS 12.020 to OTCA claims,\nwe also noted that we were not attempting to infer intent\nfrom legislative inaction:\n \t “We note that this is not a case in which we are\n attempting to infer intent from legislative inaction. See\n Berry v. Branner, 245 Or 307, 311, 421 P2d 996 (1966)\n (explaining the difficulty in inferring legislative intent\n from inaction). Nor is it a case in which the legislature\n was silent regarding the subsection at issue here. Rather,\n the committee and witnesses explained at length that this\n subsection would specify the applicable limitations period\n of OTCA actions. We rely on that explanation in inferring\n that the wording adopted on April 30, 1981, addresses only\n periods of limitation.”\nId. at 83 n 6 (emphasis added). Here, the majority has not\npointed to anything in the legislative history relating to\nORS 30.275(9) to suggest that the legislature intended to\ndepart from the previously established procedures to allow\npersonal representatives to commence survival claims\nunder ORS 30.075(1). As in Baker, it is not reasonable to\nassume from the legislative history that the legislature\nintended to discard previously established procedures of\nsuch significance.\n\t Based on the foregoing authorities, I conclude that\nthe majority’s decision in this case is erroneous and frustrates\nthe legislature’s intentions in enacting ORS 30.075(1) and\nORS 30.275(9). I therefore respectfully dissent.\n\f", "ocr": false, "opinion_id": 2711548 } ]	Oregon Supreme Court	Oregon Supreme Court	S	Oregon, OR
11,400	null	1997-02-19	false	united-states-v-castro	Castro	United States v. Castro	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": 3, "download_url": "http://www.ca5.uscourts.gov/opinions\\unpub\\96/96-20245.0.wpd.pdf", "author_id": null, "opinion_text": " IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE FIFTH CIRCUIT\n\n\n\n No. 96-20245\n\n Summary Calendar\n\n\nUNITED STATES OF AMERICA,\n Appellee,\n\n versus\n\nRITA SUHAYLA CASTRO, also known as\nSuhayla Castro, also known as Rita Lugo,\n\n Defendant-Appellant.\n\n\n CONSOLIDATED WITH\n No. 96-20246\n\n\nUNITED STATES OF AMERICA,\n Appellee,\n\n versus\n\nRODRIGO CLEVES, also known as El\nCondor, also known as El Pajaro,\n\n Defendant-Appellant.\n\n\n\n\n Appeal from the United States District Court\n For the Southern District of Texas\n USDC No. CR H-94-60-6\n USDC No. CR H-94-60-1\n\n\n\n February 6, 1997\n\fBefore HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.\n\nPER CURIAM:\n\n Rita Suhayla Castro appeals her guilty-plea convictions for\n\none count of conspiracy to possess with intent to distribute\n\ncocaine and three counts of possession with intent to distribute\n\ncocaine. Rodrigo Cleves appeals his guilty-plea convictions for\n\nconspiracy to possess with intent to distribute cocaine and\n\npossession with intent to distribute cocaine. Appellants raised\n\nvirtually the same issues on appeal; therefore, the cases have been\n\nconsolidated on the government’s unopposed motion. FED. R. APP. P.\n\n3(b).\n\n Castro and Cleves argue that the district court violated their\n\nsubstantial rights by not complying with Fed. R. Crim. P. 11(d),\n\nwhich requires the court to inquire whether the plea results from\n\nprior discussions with the United States attorney. Neither Cleves\n\nnor Castro identifies any substantial right that was violated by\n\nany variance in the district court’s procedure. See U.S. v.\n\nJohnson, 1 F.3d 296, 298 (5th Cir. 1993) (en banc). Any error was\n\nharmless and not reversible. Id.; U.S. v. Thomas, 13 F.3d 151 (5th\n\nCir. 1994).\n\n Castro and Cleves argue that there are unresolved factual\n\nquestions behind their respective roles in the offenses. There is\n\n\n \n Pursuant to Local Rule 47.5, the court has determined that\nthis opinion should not be published and is not precedent except\nunder the limited circumstances set forth in Local Rule 47.5.4.\n\n 2\n\fsubstantial evidence in the PSRs to support the district court’s\n\ndetermination that Castro was a manager and Cleves was a leader in\n\nthe drug organization. A PSR bears sufficient indicia of\n\nreliability to be considered as evidence in making factual\n\ndeterminations under the Sentencing Guidelines. U.S. v. Montoya-\n\nOrtiz, 7 F.3d 1171, 1180 (5th Cir. 1993). The district court’s\n\nfindings were not clearly erroneous. See U.S. v. Avlarado, 898\n\nF.2d 987, 993 (5th Cir. 1990).\n\n Cleves and Castro argue that the Government breached the plea\n\nagreement by failing to file a motion to impose a sentence below\n\nthe mandatory minimum. Neither party objected in the district\n\ncourt. Furthermore, at the time of sentencing, a unitary motion\n\nunder § 5K1.1 was sufficient to implement a departure from the\n\nguidelines and the statutory minimum sentence. See U.S. v.\n\nUnderwood, 61 F.3d 306, 311-12 (5th Cir. 1995). The extent of any\n\ndeparture was within the discretion of the district court. Id. We\n\nfind no substantial rights violated by the Government’s unitary\n\nmotion. U.S. v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en\n\nbanc), cert. denied, 115 S.Ct. 1266 (1995).\n\n The government’s motion to consolidate these appeals is\n\nGRANTED. The judgment of the district court in both cases is\n\nAFFIRMED.\n\n\n\n\n 3\n\f", "ocr": false, "opinion_id": 11400 } ]	Fifth Circuit	Court of Appeals for the Fifth Circuit	F	USA, Federal
1,800,993	Stone	1970-08-21	false	people-v-williams	null	People v. Williams	The PEOPLE, Plaintiff and Respondent, v. JOE LUKE WILLIAMS, Defendant and Appellant	Counsel, Sherman Rogers, under appointment by the Court of Appeal, for Defendant and Appellant., Thomas C. Lynch, Attorney General, Edsel W. Haws and Frank A. Iwama, Deputy Attorneys General, for Plaintiff and Respondent.	null	null	null	null	null	null	null	null	null	null	5	Published	null	<docketnumber data-order="0" data-type="docketnumber" id="b711-3"> [Crim. No. 763. </docketnumber><court data-order="1" data-type="court" id="AhV"> Fifth Dist. </court><decisiondate data-order="2" data-type="decisiondate" id="ApA"> Aug. 21, 1970.] </decisiondate><br><parties data-order="3" data-type="parties" id="b711-4"> THE PEOPLE, Plaintiff and Respondent, v. JOE LUKE WILLIAMS, Defendant and Appellant. </parties><br><p data-order="4" data-type="attorneys" id="b714-4"> <span citation-index="1" class="star-pagination" label="748"> *748 </span> Counsel </p><br><p data-order="5" data-type="attorneys" id="b714-5"> Sherman Rogers, under appointment by the Court of Appeal, for Defendant and Appellant. </p><br><p data-order="6" data-type="attorneys" id="b714-6"> Thomas C. Lynch, Attorney General, Edsel W. Haws and Frank A. Iwama, Deputy Attorneys General, for Plaintiff and Respondent. </p>	[ "10 Cal. App. 3d 745", "89 Cal. Rptr. 364" ]	[ { "author_str": "Stone", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 6600, "opinion_text": "\n10 Cal. App. 3d 745 (1970)\n89 Cal. Rptr. 364\nTHE PEOPLE, Plaintiff and Respondent,\nv.\nJOE LUKE WILLIAMS, Defendant and Appellant.\nDocket No. 763.\nCourt of Appeals of California, Fifth District.\nAugust 21, 1970.\n748 COUNSEL\nSherman Rogers, under appointment by the Court of Appeal, for Defendant and Appellant.\nThomas C. Lynch, Attorney General, Edsel W. Haws and Frank A. Iwama, Deputy Attorneys General, for Plaintiff and Respondent.\nOPINION\nSTONE, P.J.\nA jury convicted defendant of the crime of battery against the person of Simon Kashian, a police officer, in violation of Penal Code section 243. He was sentenced to state prison for a diagnostic study and recommendation. (Pen. Code, § 1168.) In this appeal, he contends that he was denied due process because he was physically absent during the preliminary examination, the trial judge erred in denying his motion for change of venue, and the evidence is insufficient to support the judgment.\nDefendant's appointed counsel attached to the brief several letters and other material which he received from defendant, setting forth matters defendant wishes this court to consider, such as an illegal arrest on a prior, unrelated charge. (1) In addition, defendant filed a supplemental opening brief in which he enlarges upon the change of venue argument, contending the trial court erred in denying his motion to set aside the information, made under Penal Code section 995. He also asserts the evidence clearly reveals a case of self-defense.\nThe motion to set aside the information is not included in the record, and thus cannot be considered on this appeal. (People v. St. Martin, 1 Cal. 3d 524, 537-538 [83 Cal. Rptr. 166, 463 P.2d 390].)\nOn September 30, 1968, defendant was an inmate of the Tulare County jail. When Deputy Caldwell went on duty that morning, he was told that the men on the second floor refused to come out of their sleeping quarters and go to the day room because they did not like the meal they had been served the night before. He went to the area to reason with the men, and felt he was \"getting through\" to them until defendant told him to go on 749 down the hall and to mind his own business. After completing his rounds, Caldwell heard the inmates rattling the bars of the cells and otherwise creating a disturbance, and returned to the second floor. Sergeant Kashian, Deputies Guy and Pyle, who also heard the disturbance, went to the area.\nDeputy Caldwell asked Kashian to move defendant to another cell. Deputy Pyle opened the door to the cell and Kashian requested defendant to come out; defendant refused, stating he was not going to be blamed for the disturbance. Kashian told him he was not being blamed but it would be better for everyone concerned if he were moved. Defendant again refused to be moved, saying something like, \"No, you are not going to take me,\" or \"If you want me, you come after me.\" As Kashian attempted to pull him out, defendant swung with his fists and struck him several times, injuring Kashian's left chest, his jaw, and a finger. Deputies Guy and Caldwell went to Kashian's assistance. Defendant swung at Guy with his left fist; Guy grabbed defendant's left arm and pivoted in an attempt to throw him off balance. In so doing his back was partially turned, and defendant bit Guy in the left shoulder blade area with sufficient force to cut the fabric of his uniform. After defendant struck Caldwell in the mouth, Caldwell hit him on the head with the keys he carried, which only \"slowed him down a little bit,\" and with his fist knocked him backward onto the bunk. Defendant then stated he had had enough, and peacefully left the cell.\nAlthough all three officers were battered and injured, defendant was tried for and convicted of battery against Simon Kashian.\n\nDUE PROCESS\n(2a) Defendant first contends his right to due process of law was violated because he was in custody and not taken to court when the order holding him to answer was made. (3) The People assert defendant may not seek a review of this point on appeal because he did not raise it in his motion to set aside the information under section 995, but asserted it for the first time at the hearing on his motion for a new trial. The Attorney General points out that Penal Code section 1181, subdivision 1, specifies that absence from trial is a ground for a new trial motion, and that absence from the preliminary hearing is not such a ground. He cites People v. Elliot, 54 Cal. 2d 498 at page 505 [6 Cal. Rptr. 753, 354 P.2d 225]: \"It is well established that an accused cannot ignore errors in the commitment proceedings until after conviction and then attempt to raise such errors for the first time on appeal.\"\nWe do not think Elliot bars a review of the question, here, because on the motion for new trial the judge, without objection by the prosecution, permitted a thorough exploration of the claim that defendant was denied 750 due process by reason of his absence from the preliminary. The court took testimonial evidence from Mr. McKinney, who represented defendant at the preliminary hearing, and from Mr. Jarvis, the deputy public defender who represented defendant during trial, and ordered the issue briefed. After studying the briefs, the judge denied the motion. Therefore we conclude the point is properly before us on the merits, as a request for review of the order denying defendant a new trial. (4) A defendant may properly request a review of an order denying a new trial in addition to an appeal from the judgment. (Pen. Code, § 1237; People v. Lessard, 58 Cal. 2d 447, 450 [25 Cal. Rptr. 78, 375 P.2d 46]; People v. Kessler, 257 Cal. App. 2d 812, 813 [65 Cal. Rptr. 248].)\nDefendant and his retained counsel were present in court the first two days of the preliminary hearing. During that time all prosecution witnesses testified and defense counsel thoroughly cross-examined them. Deputy Caldwell was called as a witness by the defense. Lavonne Jones, an inmate of the cell with defendant at the time the battery occurred, did not appear although he had been subpoenaed by the defense. A bench warrant issued for Jones' arrest and, at defendant's request, the municipal court judge granted a continuance so Jones could appear. When Jones was not located, the judge granted a second continuance to December 10, 1968. Defendant's attorney, McKinney, appeared in court at that time, but defendant was not present. The judge asked if there were to be any proceedings that day, and McKinney responded, \"No, your Honor.\" He apparently explained that the witness Jones was unavailable, because the court ordered defendant bound over, and signed an order of commitment.\nAt the hearing on motion for new trial, McKinney testified that he was aware the defendant was not present and that he did not call this fact to the attention of the municipal court judge. However, he said that before defendant entered his plea in the superior court he advised defendant to tell Mr. Jarvis, deputy public defender who then represented him, that he, defendant, had been absent at the time the order was made binding him over to the superior court. Defendant failed to do so.\nMoreover, before filing a motion to set aside the information under section 995, Mr. Jarvis consulted with Mr. McKinney, but was not advised of defendant's absence when the court made its ruling after holding the preliminary examination. Hence Mr. Jarvis did not make that a ground for the motion and did not raise the point until making a motion for a new trial. As noted, the trial judge was advised of these facts and permitted the point to be raised, argued and briefed. Accordingly, we consider the question on the merits in reviewing the denial of motion for new trial.\n751 Section 977 of the Penal Code, as amended in 1968, provides: \"(b) In all cases in which a felony is charged, the accused must be present at the arraignment, at the time of plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at the time of the imposition of sentence....\"\n(5) When a claim is made that absence of a defendant from a portion of his trial violates due process, the determinative question on appeal is whether the accused suffered any damage by reason of such absence. This is clear from People v. Isby, 30 Cal. 2d 879, 894 [186 P.2d 405]: \"In considering this point in relation to the constitutional guaranty of due process, Mr. Justice Cardozo in the case of Snyder v. Massachusetts, 291 U.S. 97 [78 L. Ed. 674, 54 S. Ct. 330, 90 A.L.R. 575], aptly observed at pages 106-108 [78 L.Ed. pp. 678-679]: `Nowhere in the decisions of this court is there a dictum, and still less a ruling, that the Fourteenth Amendment assures the privilege of presence when presence would be useless, or the benefit but a shadow ... [Rather] the presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.' Thus, it is not necessary for a defendant to be present at proceedings which are merely preliminary or formal and at which matters affecting his guilt are not presented. [Citations.] The determinative question is whether or not the accused suffered any damage by reason of absence at a particular stage of the proceedings.\"\nAbsence of a defendant under the following circumstances has been found to be without prejudice, in light of Isby: from a conference in chambers at which immunity was granted a codefendant (People v. Boehm, 270 Cal. App. 2d 13, 19-20 [75 Cal. Rptr. 590]); at time of sentencing by a California court while he was confined in a federal prison in Texas (In re Jimenez, 269 Cal. App. 2d 621, 623-624 [75 Cal. Rptr. 152]); at discussions at the bench or in chambers between court and counsel (People v. Leyve, 187 Cal. App. 2d 249, 256 [9 Cal. Rptr. 469]; People v. Spencer, 170 Cal. App. 2d 145, 149-150 [338 P.2d 484]; People v. Rodriguez, 169 Cal. App. 2d 771, 782 [338 P.2d 41] (at preliminary hearing); People v. Justice, 167 Cal. App. 2d 616, 623-624 [334 P.2d 1031]; People v. Baker, 164 Cal. App. 2d 99, 103-104 [330 P.2d 240]); after selection of jury when the defendant failed to appear and the court continued the trial to a future date with the proviso that the same jury should try the case (People v. Trubschenk, 134 Cal. App. 2d 796, 797-798 [286 P.2d 436]); when causes were transferred from one department of the superior court to another (People v. Daniels, 85 Cal. App. 2d 182, 192-197 [192 P.2d 788]); and when the court questioned a juror in chambers on the 11th trial day concerning grounds for disqualification and then ordered him disqualified (People v. Abbott, 47 Cal. 2d 362, 372 [303 P.2d 730]).\n752 (6) The rationale of Isby is particularly applicable here, since the preliminary hearing is not a trial on the issue of guilt or innocence. \"The purpose of the preliminary hearing is to weed out groundless or unsupported charges of grave offenses, and to relieve the accused of the degradation and the expense of a criminal trial.\" (Jaffe v. Stone, 18 Cal. 2d 146, 150 [114 P.2d 335, 135 A.L.R. 775]; People v. Elliot, supra, 54 Cal. 2d 498, 504.)\n(2b) Defendant was present during the taking of all evidence; only the ruling of the court was made on the day he was absent. The burden rests upon an accused to show damage arising from the claimed error, and defendant does not say how he was prejudiced by not being present when the order was made. He makes no suggestion why or how his physical presence in the courtroom would affect the ruling.\n(7) In his supplemental brief, defendant suggests that his retained counsel could not waive his right to compulsory process at the preliminary. We fail to see the import of his argument. Moreover, the transcript of the preliminary hearing is not a part of the record and the suggestion depends upon matters outside the record, which are not properly before the court for review. (People v. Brawley, 1 Cal. 3d 277, 294 [82 Cal. Rptr. 161, 461 P.2d 361]; People v. Gardner, 71 Cal. 2d 843, 849 [79 Cal. Rptr. 743, 457 P.2d 575]; People v. Merriam, 66 Cal. 2d 390, 396-397 [58 Cal. Rptr. 1, 426 P.2d 161].)\n\nCHANGE OF VENUE\n(8) Before commencement of trial, in chambers, defendant personally made an oral motion for a change of venue on the ground that \"The news media has given out information that's unfair.\" He mentioned that he had heard one radio broadcast and that it was stated in a newspaper article that he said the food in jail was not fit for pigs. He said his retained counsel, Mr. McKinney, had refused to move for a change of venue. The deputy public defender who was then representing defendant did not join in the motion, and stated to the court that he saw no merit in it but that defendant felt he could not receive a fair trial in Tulare County because of his race.\nPenal Code section 1034 requires an application for removal to \"be made in open court and in writing, verified by the affidavit of the defendant,\" a copy of which must be served upon the district attorney at least one day prior to the hearing of the application. Here, the deputy district attorney made no objection to the motion, and failure to comply with technical formalities was waived by the People. The trial judge denied the motion 753 for change of venue without prejudice to defendant, stating that if it developed during selection of a jury that there was widespread publicity and a large or substantial number of prospective jurors had formed an opinion based thereon, he would reconsider the motion. The voir dire examination of the prospective jurors is not a part of the record; in any event, the motion was not renewed by defendant after selection of the jury, and it must be assumed there is no corroboration of defendant's claim of unfair publicity and the issue was waived.\n\nSUFFICIENCY OF EVIDENCE\n(9a) Defendant's one-sentence statement that the evidence is insufficient to support the judgment merits little consideration. In his statement of facts, defendant points to his own testimony, overlooking or ignoring testimony of the officers; he then concludes the evidence clearly supports a finding of self-defense. The record shows that defendant testified in his own behalf and attempted to establish a case of self-defense or mistake of fact; the jury was correctly instructed on those theories, it believed the testimony of the officers and rendered a verdict accordingly. (10) The test on appeal is whether substantial evidence supports the conclusion drawn from the facts by the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. (People v. Mosher, 1 Cal. 3d 379, 395 [82 Cal. Rptr. 379, 461 P.2d 659]; People v. Hillery, 62 Cal. 2d 692, 702 [44 Cal. Rptr. 30, 401 P.2d 382].) (9b) The testimony of the officers is sufficient to support the judgment.\nThe judgment is affirmed.\nGargano, J., and Coakley, J., concurred.\n", "ocr": false, "opinion_id": 1800993 } ]	California Court of Appeal	California Court of Appeal	SA	California, CA
1,062,870	null	2010-02-16	false	susan-j-poole-v-virginia-employment-commission-and	null	Susan J. Poole v. Virginia Employment Commission and Target Corporation	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.courts.state.va.us/opinions/opncavwp/2196093.pdf", "author_id": null, "opinion_text": " COURT OF APPEALS OF VIRGINIA\n\n\nPresent: Judges Frank, Alston and Senior Judge Coleman\n\n\nSUSAN J. POOLE\n MEMORANDUM OPINION \nv. Record No. 2196-09-3 PER CURIAM\n FEBRUARY 16, 2010\nVIRGINIA EMPLOYMENT COMMISSION AND\n TARGET CORPORATION\n\n\n FROM THE CIRCUIT COURT OF AUGUSTA COUNTY\n Victor V. Ludwig, Judge\n\n (Susan J. Poole, pro se, on briefs).\n\n (William C. Mims, Attorney General; Elizabeth B. Peay, Assistant\n Attorney General; Donald G. Powers, Senior Assistant Attorney\n General, on brief), for appellee Virginia Employment Commission.\n\n No brief for appellee Target Corporation.\n\n\n Susan J. Poole (appellant) appeals the decision by the circuit court affirming a decision\n\nby the Virginia Employment Commission (commission). The commission found that (1) Target\n\nCorporation (employer) followed its internal policies in issuing the appropriate number of\n\nwarnings for misconduct prior to terminating appellant for cause; (2) appellant sustained a\n\nreportable injury on April 17, 2008, but failed to report her injury in violation of employer’s\n\npolicy; and (3) employer followed proper procedures in conducting appellant’s termination from\n\nemployment. We have reviewed the record, the circuit court’s order, and the commission’s\n\nopinion and find that this appeal is without merit. Accordingly, we affirm for the reasons stated\n\nby the commission in its final opinion, see Poole v. Target Corp., Commission Decision 85709-C\n\n(Mar. 10, 2009), as affirmed by the circuit court, Poole v. Virginia Employment Comm’n, Case\n\n \n Pursuant to Code § 17.1-413, this opinion is not designated for publication.\n\fNo. 15CL09000606-00 (Sept. 1, 2009). We dispense with oral argument and summarily affirm\n\nbecause the facts and legal contentions are adequately presented in the materials before the Court\n\nand argument would not aid the decisional process. See Code § 17.1-403; Rule 5A:27.\n\n Affirmed.\n\n\n\n\n -2-\n\f", "ocr": false, "opinion_id": 1062870 } ]	Court of Appeals of Virginia	Court of Appeals of Virginia	SA	Virginia, VA
587,712	Farris, Fernandez, Wiggins	1992-08-03	false	united-states-v-curtis-fitzgerald-harding	null	United States v. Curtis Fitzgerald Harding	UNITED STATES of America, Plaintiff-Appellee, v. Curtis Fitzgerald HARDING, Defendant-Appellant	David S. McLane, Deputy Federal Public Defender, Los Angeles, Cal, for defendant-appellant., Peter G. Spivack, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.	null	null	null	null	null	null	null	Submitted July 10, 1992.*	null	null	78	Published	null	<parties id="b466-3"> UNITED STATES of America, Plaintiff-Appellee, v. Curtis Fitzgerald HARDING, Defendant-Appellant. </parties><br><docketnumber id="b466-6"> No. 91-50423. </docketnumber><br><court id="b466-7"> United States Court of Appeals, Ninth Circuit. </court><br><otherdate id="b466-8"> Submitted July 10, 1992. <a class="footnote" href="#fn" id="fn_ref"> * </a> </otherdate><br><decisiondate id="b466-9"> Decided Aug. 3, 1992. </decisiondate><br><attorneys id="b467-11"> <span citation-index="1" class="star-pagination" label="411"> 411 </span> David S. McLane, Deputy Federal Public Defender, Los Angeles, Cal, for defendant-appellant. </attorneys><br><attorneys id="b467-12"> Peter G. Spivack, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee. </attorneys><br><judges id="b467-14"> Before: FARRIS, WIGGINS, and FERNANDEZ, Circuit Judges. </judges><div class="footnotes"><div class="footnote" id="fn" label=""> <a class="footnote" href="#fn_ref"> * </a> <p id="b466-19"> The panel finds this case appropriate for submission without argument pursuant to Fed.R.App.P. 34(a) and 9th Cir.R. 34-4. </p> </div></div>	[ "971 F.2d 410" ]	[ { "author_str": "Wiggins", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/971/971.F2d.410.91-50423.html", "author_id": null, "opinion_text": "971 F.2d 410\n UNITED STATES of America, Plaintiff-Appellee,v.Curtis Fitzgerald HARDING, Defendant-Appellant.\n No. 91-50423.\n United States Court of Appeals,Ninth Circuit.\n Submitted July 10, 1992.Decided Aug. 3, 1992.\n \n David S. McLane, Deputy Federal Public Defender, Los Angeles, Cal., for defendant-appellant.\n Peter G. Spivack, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.\n Appeal from the United States District Court for the Central District of California.\n Before: FARRIS, WIGGINS, and FERNANDEZ, Circuit Judges.\n WIGGINS, Circuit Judge:\n \n OVERVIEW\n \n 1\n Curtis Fitzgerald Harding appeals his sentence of 120 months under the Sentencing Guidelines for possession with the intent to distribute cocaine base. He argues that the distinction made in the United States Sentencing Guidelines between cocaine base (crack) and cocaine hydrochloride (powder cocaine) violates the Equal Protection Clause of the United States Constitution. The District Court had jurisdiction over this case pursuant to 18 U.S.C. § 3231. This court has jurisdiction over the timely appeal pursuant to 28 U.S.C. § 1291. We affirm.\n \n BACKGROUND\n \n 2\n On February 11, 1991, Harding pled guilty to possession with intent to distribute 89.1 grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1). In return for his plea, the government agreed to dismiss indictments for the possession with intent to distribute 166 grams of powder cocaine and failure to appear. On February 22, 1991, Harding filed his sentencing memorandum, challenging the sentencing distinction between crack and powder cocaine in 21 U.S.C. § 841(b)(1)(A)(iii) as violative of the Equal Protection Clause. The district court held a hearing on the constitutionality of this distinction in the Sentencing Guidelines and concluded that the enhanced penalties associated with the possession of crack did not violate the Equal Protection Clause. Accordingly, Harding was sentenced on July 16, 1991 to 120 months imprisonment, the mandatory minimum penalty under 21 U.S.C. § 841(b)(1)(A)(iii). Harding appeals.\n \n DISCUSSION\n \n 3\n Harding contends that the Sentencing Guidelines unconstitutionally differentiate between crack and powder cocaine. Harding argues that the statute should be subject to a \"heightened, 'intermediate' level of scrutiny\" under which the distinction in penalties would be shown not to further a substantial legislative interest. At the same time, Harding argues that the Sentencing Guidelines would also fail a rational basis test because the distinction in penalties is arbitrary and irrational. We first determine the relevant scrutiny standard, and then apply it to the facts of this case.\n \n THE LEVEL OF SCRUTINY\n \n 4\n The power to define federal crimes and set punishments rests solely with Congress. United States v. Evans, 333 U.S. 483, 486, 68 S.Ct. 634, 636, 92 L.Ed. 823 (1948); United States v. Smith, 686 F.2d 234, 239 (5th Cir.1982). For statutory challenges made on Equal Protection grounds, \"[t]he general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate [government] interest.\" City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985) (citations omitted).\n \n \n 5\n Harding argues that a heightened level of scrutiny should be applied to the statutory penalty scheme in question. For statutory classifications \"that disadvantage a 'suspect class,' or that impinge upon the exercise of a 'fundamental right,' \" the Supreme Court requires a showing of a compelling governmental interest. Plyler v. Doe, 457 U.S. 202, 216-217, 102 S.Ct. 2382, 2394-95, 72 L.Ed.2d 786 (1982). However, when no suspect class or fundamental right is affected, the federal courts \"properly exercise[ ] only a limited review power over Congress, the appropriate representative body through which the public makes democratic choices among alternative solutions to social and economic problems.\" Schweiker v. Wilson, 450 U.S. 221, 230, 101 S.Ct. 1074, 1080, 67 L.Ed.2d 186 (1981).\n \n \n 6\n Section 841(b)(1) implicates neither a suspect class nor a fundamental right. The statute permissibly differentiates on the basis of type of drug and quantity, providing higher penalties for offenses involving cocaine base than for offenses involving similar amounts of powder cocaine. United States v. House, 939 F.2d 659, 664 (8th Cir.1991). Furthermore, the statute does not infringe upon a fundamental or quasi-fundamental right.1 \"21 U.S.C. § 841(b) does not discriminate on the basis of a suspect classification or the exercise of a fundamental right, and thus does not require heightened scrutiny.\" United States v. Thomas, 900 F.2d 37, 39 (4th Cir.1990) (citing United States v. Solomon, 848 F.2d 156, 157 (11th Cir.1988) (per curiam)). The statutory sentencing provision is subject only to rational basis scrutiny.\n \n RATIONAL BASIS SCRUTINY\n \n 7\n Harding argues that the statute is unconstitutional because it makes an arbitrary and irrational distinction between crack and powder cocaine. He contends that crack and powder cocaine are essentially the same drug and, accordingly, should not be subject to different sentencing provisions. Challenges to the constitutionality of a statute are reviewed de novo. United States v. Savinovich, 845 F.2d 834, 839 (9th Cir.), cert. denied, 488 U.S. 943, 109 S.Ct. 369, 102 L.Ed.2d 358 (1988).\n \n \n 8\n Although Equal Protection does not require that all people be treated identically, it does require that distinctions bear some relevance to the purposes for which they were made. Baxstrom v. Herold, 383 U.S. 107, 111, 86 S.Ct. 760, 762-63, 15 L.Ed.2d 620 (1966). Under the rational basis test, the classification set out in section 841(b)(1) must bear some rational relation to a legitimate government interest or purpose. Schweiker v. Wilson, 450 U.S. at 230, 101 S.Ct. at 1080-81. In establishing a statutory classification, one need not, as Harding contends, supply empirical evidence to support a rational relationship. In fact, a \"legislative body need not explicitly state its reasons for passing legislation so long as a court can divine some rational purpose.\" United States v. Cyrus, 890 F.2d 1245, 1248 (D.C.Cir.1989).\n \n \n 9\n The burden falls on the party attempting to disprove the existence of a rational relationship between a statutory classification and a government objective. \"[T]hose challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker.\" Vance v. Bradley, 440 U.S. 93, 111, 99 S.Ct. 939, 949, 59 L.Ed.2d 171 (1979). To challenge the Sentencing Guidelines successfully, the defendant in this case must be able to demonstrate that the relevance of the distinction between crack and powder cocaine is not even debatable. See United States v. Carolene Products Co., 304 U.S. 144, 154, 58 S.Ct. 778, 784-85, 82 L.Ed. 1234 (1938) (a statutory classification based on a question which is at least debatable is valid). To do so, he cannot merely show that the legislature was mistaken in creating the classification, but rather he must prove that there exist no legitimate grounds to support the classification. Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464, 101 S.Ct. 715, 724, 66 L.Ed.2d 659 (1981).\n \n \n 10\n Congress's decision to punish the sale of crack more severely than the sale of powder cocaine was based on a broad and legitimate basis.2 Although crack and powder cocaine are different forms of the same drug, the routes of administration, their physiological and psychological effects, and the manner in which they are sold set the two forms of the drug apart. Crack is normally smoked in a glass pipe, while powder cocaine is most often ingested nasally. Because it is smoked, crack has a quicker and more intense effect on the brain than powder cocaine ingested nasally, causing a greater desire for more.3 Crack is also sold in smaller quantities and lower unit prices than powder cocaine, thereby reducing the financial barrier which had previously limited cocaine usage. Crack Hearings at 13-18 (testimony of Dr. Charles R. Schuster). See also United States v. Buckner, 894 F.2d 975, 978 n. 9 (8th Cir.1990) (discussing the relevant sections of the Crack Hearings ).\n \n \n 11\n In short, crack offers an easy, relatively inexpensive, and potent means for first-time users as well as addicts to experience a temporary high which leaves them craving more. Crack Hearings at 1-4, 13-24 (testimonies of Senator William V. Roth, Jr., Dr. Charles R. Schuster and Dr. Robert Byck). While powder cocaine was the drug of choice for the affluent, crack has brought cocaine to the streets, catering to the habits of both rich and poor in epidemic proportions. Id. The extent of this epidemic can be demonstrated by the development among police forces of special anticrack units. For example, \"[t]he special anticrack unit is unique in the [New York Police Department] since its formation marks the first time that one command has been designated to deal with one particular drug.\" Crack Hearings at 61 (testimony of Deputy Inspector Martin O'Boyle, New York Police Department).\n \n \n 12\n The distinction between crack and powder cocaine embodied in § 841(b)(1) complements, rather than contradicts, the \"market-oriented approach\"4 which classifies offenders according to the quantity rather than the purity of the drug possessed. This approach focuses on major traffickers and intermediate managers. See United States v. Buckner, 894 F.2d at 979. Congress made a rational decision based on evidence offered at the Crack Hearings that the possession with intent to sell fifty grams of crack should be the level at which one is deemed to be a \"manager,\" while the same level for powder cocaine, carried and sold in larger quantities, should be five kilograms. See H.R.Rep. no. 845, 99th Cong, 2d sess. 12 (1986); 21 U.S.C. § 841(b)(1); United States v. Malone, 886 F.2d 1162, 1166 (9th Cir.1989).\n \n \n 13\n The distinction between crack and powder cocaine is neither arbitrary nor irrational. In United States v. Shaw, 936 F.2d 412, 416 (9th Cir.1991) and United States v. Van Hawkins, 899 F.2d 852, 854 (9th Cir.1990), we held that the distinction between cocaine base and powder cocaine made in § 841(b)(1) is not unconstitutionally vague because the two substances are objectively distinguishable. Furthermore, the penalties embodied in this statute further the legitimate government interest of eliminating controlled substance distribution and abuse. Crack presents a much larger problem than powder cocaine, both in the number of users and the drug's effects on the individual. See generally Crack Hearings. If the extent of the problem posed by the sale of crack and the need for more severe penalties than for powder cocaine are not clearly evident, these issues are at least highly debatable. This is enough to prevent invalidation of the statutory classification. Carolene Products Co., 304 U.S. at 154, 58 S.Ct. at 784-85.\n \n \n 14\n Every federal court of appeals that has confronted this issue has rejected an Equal Protection challenge to the sentencing provisions in § 841(b)(1). See United States v. Lawrence, 951 F.2d 751, 755 (7th Cir.1991); United States v. House, 939 F.2d at 664; United States v. Avant, 907 F.2d 623, 627 (6th Cir.1990); United States v. Thomas, 900 F.2d at 39-40; United States v. Cyrus, 890 F.2d at 1248-49; United States v. Solomon, 848 F.2d at 157. We join these circuits in upholding § 841(b)(1).\n \n CONCLUSION\n \n 15\n For the reasons mentioned above, we AFFIRM the district court's finding of a rational basis for the statutory classification and reject the Equal Protection challenge to § 841(b)(1).\n \n \n 16\n AFFIRMED.\n \n \n \n \n The panel finds this case appropriate for submission without argument pursuant to Fed.R.App.P. 34(a) and 9th Cir.R. 34-4\n \n \n 1\n In Plyler v. Doe, 457 U.S. at 217-218, 102 S.Ct. at 2394-95, the Court recognized that infringements on certain \"quasi-fundamental\" rights, like access to public education, also mandate a heightened level of scrutiny. No such quasi-fundamental right is called into question in the sentencing of the defendant for possession with intent to sell crack cocaine\n \n \n 2\n The information in this and the following paragraph, along with a wealth of other information, could have been relied upon by Congress, even if some people would debate its accuracy\n \n \n 3\n Although intravenous injection of dissolved powder cocaine may have even greater physiological and psychological effects, most cocaine users will smoke crack while few are willing to inject cocaine into their arms. \"Crack\" Cocaine: Hearing Before the Permanent Subcomm. on Investigations of the Senate Comm. on Governmental Affairs, 99th Cong., 2d Sess. 13 (1986) [hereinafter Crack Hearings ] (testimony of Dr. Charles R. Schuster)\n \n \n 4\n This approach was deemed constitutional in United States v. Hoyt, 879 F.2d 505 (9th Cir.), amended, 888 F.2d 1257 (9th Cir.1989) and United States v. Savinovich, 845 F.2d 834\n \n \n ", "ocr": false, "opinion_id": 587712 } ]	Ninth Circuit	Court of Appeals for the Ninth Circuit	F	USA, Federal
2,618,804	Hendley, Neal, Wood	1983-05-12	false	garcia-v-city-of-albuquerque	Garcia	Garcia v. City of Albuquerque	Eloy J. GARCIA, Plaintiff-Appellant, v. CITY OF ALBUQUERQUE, Defendant-Appellee	James G. Chakeres, Albuquerque, for plaintiff-appellant. •, Mark S. Jaffe, Asst. City Atty., City of Albuquerque, Albuquerque, for defendantappellee.	null	null	null	null	null	null	null	null	null	null	2	Published	null	<citation id="b778-12" pgmap="778"> 663 P.2d 1203 </citation><br><parties id="b778-13" pgmap="778"> Eloy J. GARCIA, Plaintiff-Appellant, v. CITY OF ALBUQUERQUE, Defendant-Appellee. </parties><br><docketnumber id="b778-15" pgmap="778"> No. 6041. </docketnumber><br><court id="b778-16" pgmap="778"> Court of Appeals of New Mexico. </court><br><decisiondate id="b778-17" pgmap="778"> May 12, 1983. </decisiondate><br><attorneys id="b779-11" pgmap="779"> James G. Chakeres, Albuquerque, for plaintiff-appellant. • </attorneys><br><attorneys id="b779-13" pgmap="779"> Mark S. Jaffe, Asst. City Atty., City of Albuquerque, Albuquerque, for defendantappellee. </attorneys>	[ "663 P.2d 1203", "99 N.M. 746" ]	[ { "author_str": "Wood", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n663 P.2d 1203 (1983)\n99 N.M. 746\nEloy J. GARCIA, Plaintiff-Appellant,\nv.\nCITY OF ALBUQUERQUE, Defendant-Appellee.\nNo. 6041.\nCourt of Appeals of New Mexico.\nMay 12, 1983.\n1204 James G. Chakeres, Albuquerque, for plaintiff-appellant.\nMark S. Jaffe, Asst. City Atty., City of Albuquerque, Albuquerque, for defendant-appellee.\n\nOPINION\nWOOD, Judge.\nPlaintiff's appeal in this worker's compensation case is frivolous. See Crumpton v. Humana, Inc., 99 N.M. 562, 661 P.2d 54 (1983). We (1) identify procedural problems; (2) answer the issues presented; and (3) then refer the matter to the Disciplinary Board for appropriate proceedings.\n\nProcedural Problems\n(a) After trial, both parties submitted requested findings and conclusions. The record does not show that the trial court took any action in connection with defendant's requests. Its \"Decision\" reads: \"The Court finds and concludes, as set out in the attached sets of requests.\" Attached thereto is plaintiff's requested findings and conclusions. With one exception, the trial judge wrote \"Adopted\", \"Refused\", \"Refused; evidence\" or \"Adopted as changed\" alongside each of plaintiff's requests.\nThe trial court violated NMSA 1978, Civ. P.R. 52(B)(1)(e) and (g) (Repl.Pamp. 1980); Moore v. Moore, 68 N.M. 207, 360 P.2d 394 (1961). There was a similar violation in Covalt v. High, (Ct.App.) No. 5881, decided by memorandum opinion on March 3, 1983. In Covalt we remanded for findings and conclusions in compliance with the rule. We do not follow that procedure in this case. Because the appeal is frivolous, we decide it at this time.\n(b) The one exception to the procedure discussed above was Finding No. 28. It is in the trial judge's handwriting and states: \"Plaintiff's disability is result of his condition prior to Feb[ruary] '81 accident; no disability as a result of the Feb[ruary] '81 accident.\" Prior to the \"Decision\" discussed above, the trial court, by letter, informed counsel of its views. The letter is not in the appellate record. Plaintiff 1205 moved for reconsideration of the letter decision. There is an unsigned order in the record denying the motion to reconsider; however, it is not disputed that reconsideration was denied. The order denying reconsideration states: \"The Court's finding # 28 is amended as stated in the record at the 10-12-82 hearing.\" The trial court did initial this statement.\nPlaintiff's request to the court reporter for a transcript of proceedings did not ask for a transcription or tape of the hearing on October 12, 1982; the request went only to hearings on August 26-27, 1982.\nThe brief-in-chief states: \"Plaintiff challenges the Court's Findings of Fact No. 28 ... as well as the Judge's amendment of No. 28.\" Plaintiff had the burden of presenting a record sufficient to review his appellate contentions. The amendment to Finding No. 28 not being before us, it cannot be reviewed. See State v. Duran, 91 N.M. 756, 581 P.2d 19 (1978).\nInasmuch as all issues presented pertain to disability resulting from an accident in February 1981, we proceed on the basis of Finding No. 28 that no disability resulted from that accident.\n(c) Plaintiff contends the \"no disability\" finding is not supported by the evidence. His brief-in-chief does not refer to evidence of no disability, only to evidence that plaintiff asserts shows disability. NMSA 1978, Civ.App.R. 9(d) (Cum.Supp. 1982), states: \"A contention that a ... finding of fact is not supported by substantial evidence will not ordinarily be entertained unless the party so contending shall have stated in his initial brief the substance of all evidence bearing upon the proposition....\" Plaintiff violated this rule. Henderson v. Henderson, 93 N.M. 405, 600 P.2d 1195 (1979). The insufficient evidence claim is not entitled to consideration; we answer it because it shows the frivolity of this appeal.\n(d) NMSA 1978, Civ.App.R. 18(c), states that a party may request oral argument at the time of filing the first brief addressed to the merits. Plaintiff filed such a request; it was included in the brief-in-chief between the conclusion and the certificate of service. Our clerk's office would have known of this request only if one of the employees in the clerk's office had read the brief. Such reading is not their function. However, oral argument is unnecessary. Genuine Parts Co. v. Garcia, 92 N.M. 57, 582 P.2d 1270 (1978).\n\nThe Issues Presented\nPlaintiff, employed as a truck driver-laborer, had a history of back trouble; he had had two laminectomies. On February 19, 1981, plaintiff was injured in a traffic accident while driving his truck on the job. Plaintiff had back and neck complaints which were treated by Dr. Benson, an orthopedic surgeon. Defendant paid the medical bills to August 1, 1981, and paid compensation benefits from February 19, 1981 until May 3, 1981.\n(a) Plaintiff returned to work in May 1981. Plaintiff's brother was killed in September 1981. Plaintiff began drinking so heavily that he could not properly perform his work; he conceded at trial that the drinking problem and the death of his brother led to his resignation from his job in October 1981. This resignation occurred at a hearing inquiring into alleged misconduct on the part of plaintiff. The alleged misconduct involved improper use of the employer's vehicle, an alleged accident and drinking on the job.\nPlaintiff contends the trial court erred in admitting evidence of his heavy drinking and alcohol-related problems, including the alleged misconduct being investigated when plaintiff resigned from his employment. Plaintiff states: \"[T]here was no evidence that illness or alcoholism had precipitated the Plaintiff's disability.\"\nPlaintiff had a physical impairment at the time of trial. The trial court found he had a disability within the meaning of the compensation statute. \"Disability\" was an issue being tried. The cause of any disability 1206 was also an issue being tried. The alcohol and misconduct testimony went directly to the cause of plaintiff's resignation which, in turn, was relevant to the cause of disability issue. NMSA 1978, Evid.R. 401. Plaintiff refers us to what he terms a \"general rule\" that \"evidence of intoxication at the time of the injury is ordinarily no defense, unless such was the sole cause of the injury.\" The irrelevancy is in plaintiff's argument; there was no issue concerning intoxication at the time of the February 1981 accident.\n(b) Plaintiff contends \"there was substantial evidence in the record as a whole to support an award of permanent total disability.\" This is another irrelevant argument. The trial court found a disability, but found no causation. The issue is whether there is evidence to support the trial court's finding of no disability from the February 1981 accident, and not whether it could have found otherwise. See Cardenas v. United Nuclear Homestake Part., 97 N.M. 46, 636 P.2d 317 (Ct.App. 1981).\n(c) Plaintiff asserts that any doubt in the trial court's mind as to the weight and sufficiency of the evidence \"should have been weighed in the plaintiff's favor.\" This argument is presented on the basis that the Compensation Act must be liberally construed, and the rule of liberal construction applies to the weight and sufficiency of the evidence.\nPlaintiff cites White v. Valley Land Company, 64 N.M. 9, 322 P.2d 707 (1957), in support of his argument. Plaintiff omits any reference to Mascarenas v. Kennedy, 74 N.M. 665, 397 P.2d 312 (1964), which held that the rule of liberal construction did not apply to the weight or sufficiency of the evidence, and that White v. Valley Land Company, supra, was overruled to the extent it was to the contrary. Mascarenas states:\n[L]iberal construction of the Workmen's Compensation Act applies to the law, not to the evidence offered in support of a claim under the law. The rule of liberal construction does not relieve a claimant of the burden of establishing his right to compensation by a preponderance of the evidence, nor does it permit a court to award compensation where the requisite proof is absent.\nPlaintiff had the burden of persuading the trial court that his disability resulted from the February 1981 accident. Mayfield v. Keeth Gas Company, 81 N.M. 313, 466 P.2d 879 (Ct.App. 1970). Plaintiff did not meet that burden.\n(d) NMSA 1978, § 52-1-28(B), states: \"In all cases where the defendants deny that an alleged disability is a natural and direct result of the accident, the workman must establish that causal connection as a medical probability by expert medical testimony.\"\nThe trial court refused plaintiff's requested finding, which reads: \"That the undisputed medical testimony was that the accident of February 19, 1981, was the direct and natural cause of plaintiff's disability from performing his previous work.\" Instead, the trial court found there was no disability as a result of the February 1981 accident. Plaintiff contends the trial court erred in refusing his requested finding and in the finding made.\nThis issue involves the sufficiency of the medical testimony to support the finding of no causal connection. See Gammon v. Ebasco Corporation, 74 N.M. 789, 399 P.2d 279 (1965). Plaintiff claims the medical testimony established the requisite causal connection. He describes this medical testimony as \"uncontroverted\"; \"uncontradicted\"; and \"undisputed\". The claim is false. The testimony of Dr. Benson demonstrates the falsity of plaintiff's contention.\nDr. Benson saw plaintiff immediately after the February 19, 1981 accident and was plaintiff's treating physician through May 11, 1981. By that date all neck and back pain ceased. Plaintiff, an obese man, had gained weight but had a full range of motion 1207 and no pain. Plaintiff returned to work.\nDr. Benson next saw plaintiff in December 1981. Plaintiff reported that he had been doing well until his brother was shot, after which he began drinking and putting on more weight. His complaints of back pain started with the drinking and weight gain.\nDr. Benson opined that plaintiff had the same physical impairment as he had prior to the accident in February 1981, that plaintiff had recovered from the effects of the February 1981 accident by May 1981, that the recurrence of back complaints was due to weight gain, and that the February 1981 accident was not a factor in the present back pain.\nDr. Benson's testimony is substantial support for the trial court's finding.\nReference to the Disciplinary Board\nNMSA 1978, Code of Professional Responsibility; Canons and Disciplinary Rules, Judicial Pamphlet 11, (Repl.Pamp. 1982), states in Rule 7-102(A)(2) and (5) that a lawyer shall not: (a) knowingly advance a claim that is unwarranted under existing law, with an exception not advanced in this case; and (b) knowingly make a false statement of law or fact.\nPlaintiff's attorney, James G. Chakeres, has advanced claims unwarranted under existing law and has made false statements to this Court as to the facts.\nThe judgment denying compensation is affirmed. By a copy of this opinion, the matter is referred to the Disciplinary Board (see NMSA 1978, Supreme Court Rules Governing Discipline and Disciplinary Board Revised Rules of Procedure, Rule 5, Judicial Pamphlet 12, (Cum.Supp. 1981)) for appropriate disciplinary proceedings. The Clerk of the Court of Appeals shall make available to the Disciplinary Board this Court's files, including the appellate record, at the request of the Disciplinary Board.\nIT IS SO ORDERED.\nHENDLEY and NEAL, JJ., concur.\n", "ocr": false, "opinion_id": 2618804 } ]	New Mexico Court of Appeals	New Mexico Court of Appeals	SA	New Mexico, NM
351,941	null	1978-02-24	false	bird-provision-co-cross-appellee-v-owens-country-sausage-inc	null	null	Bird Provision Co., Cross-Appellee v. Owens Country Sausage, Inc., Cross-Appellant. Bird Provision Co., Cross-Appellee v. Clifford B. Owens, Cross-Appellants	null	null	null	null	null	null	null	null	null	null	null	15	Published	null	null	[ "568 F.2d 369" ]	[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/568/568.F2d.369.75-3412.html", "author_id": null, "opinion_text": "568 F.2d 369\n 197 U.S.P.Q. 134\n BIRD PROVISION CO., Plaintiff-Appellant Cross-Appellee,v.OWENS COUNTRY SAUSAGE, INC., Defendant-Appellee Cross-Appellant.BIRD PROVISION CO., Plaintiff-Appellant Cross-Appellee,v.Clifford B. OWENS et al., Defendants-Appellees Cross-Appellants.\n No. 75-3412.\n United States Court of Appeals,Fifth Circuit.\n Feb. 24, 1978.\n \n Harvey B. Jacobson, Jr., Washington, D. C., Allen Butler, Dallas, Tex., for plaintiff-appellant cross-appellee.\n Carlisle Blalock, D. Carl Richards, Dallas, Tex., for defendants-appellees cross-appellants.\n Appeals from the United States District Court for the Northern District of Texas.\n Before THORNBERRY, AINSWORTH and RONEY, Circuit Judges.\n RONEY, Circuit Judge:\n \n \n 1\n Plaintiff Bird Provision Company claims that Owens Country Sausage, Inc. and two of its officers infringed on Bird Provision's patented process for making fresh pork sausage. Defendants admit infringement, but contend that the Bird Provision patent is invalid on several grounds. The district court declared the patent invalid on the grounds of prior public use and obviousness, and Bird Provision appealed. On the basis of the district court's findings and decision, Bird Provision Co. v. Owens Country Sausage, Inc., 379 F.Supp. 744 (N.D.Tex.1974), we affirm.\n \n I. Background\n \n 2\n The ancient art of making fresh pork sausage has changed but little over the centuries. Basically, the meat is stripped from the slaughtered animal, ground and seasoned, and packaged uncooked. Under what the parties term the \"conventional\" method of sausage processing, the carcass is chilled overnight at 35-40o and processed while cool into air-permeable sausage casings, such as cloth bags or polyethylene films. Sausage \"hot-processed\" according to the Bird Provision patent, however, is packaged into air-impermeable containers before the meat temperature falls below 80o fahrenheit.1 Bird Provision recognizes four requirements as the key elements of its patented process: the meat must be processed while it retains a temperature of at least 80 and preferably 90 degrees; packaging must be completed within 31/2 hours, and preferably within 1 hour, from the time of slaughter; the meat must be \"warm and fluent\" when packaged; and it must be packaged into an air-impermeable material, such as the well-known saran film. Bird Provision claims that processing fresh pork sausage according to the terms of its patent doubles the refrigerated shelf life of the packaged product and indefinitely prolongs shelf life when frozen.\n \n \n 3\n Fresh pork sausage is unusually susceptible to rancidity spoilage, discoloration, and bacterial spoilage. Rancidity spoilage and discoloration are caused by oxygen in prolonged contact with the meat. Fresh pork sausage, no matter how it is processed, necessarily contains some oxygen, either dissolved in the meat itself or entrapped in the air pockets created during the grinding and mixing stages. Therefore spoilage will not be prevented by simply protecting the meat from external oxygen by air-impermeable packaging. If rancidity and discoloration are to be eliminated, the oxygen dissolved and entrapped within the meat must somehow be eliminated.\n \n \n 4\n According to Bird Provision, the internal oxygen can be eliminated by packaging the meat while it is \"warm and fluent,\" which requires processing within 31/2 hours and while the meat retains no less than 80o of its original 102-104o temperature. Air pockets tend not to form when the meat is processed in a warm and fluent state. More importantly, the warm and fluent meat contains enzymes (live tissues) that metabolize (consume) residual internal oxygen.\n \n \n 5\n Bacterial spoilage results from the growth of microorganisms in the meat. Since freezing stops all bacterial growth, bacterial spoilage is not a problem in frozen storage, only at temperatures above freezing. Fresh pork sausage can be held at high temperatures for a period of 3 to 4 hours before appreciable bacterial growth begins. Therefore, the Bird Provision process is able to control bacterial spoilage by controlling the initial level of psychophillic bacteria (those which grow at temperatures below 50o ) and by packaging the sausage within 31/2 hours.\n \n \n 6\n Defendants do not dispute the validity of Bird Provision's claims, nor do they deny that the processing method currently in use at Owens Country Sausage, Inc. infringes the Bird Provision patent. They argue, however, that the Bird Provision patent is invalid on four grounds: (1) prior public use and sales, (2) obviousness, (3) vagueness and indefiniteness, and (4) fraud on the United States Patent Office in obtaining the patent. The district court held the patent invalid for prior public use and obviousness and did not consider defendants' alternative allegations of vagueness and fraud. Because we affirm the district court's findings as to prior public use and obviousness, it is unnecessary to reach defendants' contention, raised on cross-appeal, that the district court erred in failing to hold the patent invalid for vagueness and fraud on the Patent Office.\n \n II. Patent Validity\n \n 7\n The ultimate question of patent validity is one of law. That conclusion of law, however, must be based on the results of several basic factual inquiries. Graham v. John Deere Co., 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1960); Metal Arts Co. v. Fuller Co., 389 F.2d 319 (5th Cir. 1968). Findings of fact in patent cases, no less than in other areas of law, are tested on appeal under the strictures of the \"clearly erroneous\" review standard of Fed.R.Civ.P. 52(a). Hughes Tool Co. v. Varel Mfg. Co., 336 F.2d 61 (5th Cir. 1964). Indeed, because patent cases so frequently involve conflicts in the evidence, especially in expert testimony, they seem particularly suited for the review limitations imposed by Rule 52(a). See American Seating Co. v. Southeastern Metals Co., 412 F.2d 756 (5th Cir. 1969).\n \n \n 8\n Federal statutes delineate three specific requirements for patentability: utility, 35 U.S.C.A. § 101; novelty, 35 U.S.C.A. § 102; and nonobviousness, 35 U.S.C.A. § 103. The absence of any one of these requirements negatives the existence of any rights in the inventor and is a complete bar to compensation. See Hobbs v. United States, 376 F.2d 488, 493 (5th Cir. 1967). Owens Country Sausage does not assail the utility of Bird Provision's patented process, but does contend that the process is obvious and lacks novelty.\n \n A. Novelty\n \n 9\n Novelty is negated and the patent invalid if \"the invention was . . . in public use or on sale in this country, more than one year prior to the date of the application for patent . . . .\" 35 U.S.C.A. § 102(b). Application for the Bird Provision patent was made on August 10, 1960. The patent is therefore invalid if a single public use of the process or sale of its product took place prior to the \"critical date,\" August 10, 1959.\n \n \n 10\n The bar to patent validity thrown up by § 102(b) is basically a reflection of the public policy that an inventor should not be permitted to extend the effective duration of his patent monopoly through covert commercial exploitation of his invention. Kardulas v. Florida Machine Products Co., 438 F.2d 1118 (5th Cir. 1971). Thus, a public use may be established either by showing a nonsecret, nonexperimental use of the process or by showing that the inventor himself used the process primarily for trade and profit prior to the critical date, regardless of whether his use was secret. In re Yarn Processing Patent Validity Litigation, 498 F.2d 271 (5th Cir.), cert. denied sub nom. Sauquoit Fibers Co. v. Leesona Corp., 419 U.S. 1057, 95 S.Ct. 640, 42 L.Ed.2d 654 (1974).\n \n \n 11\n It is clear that the infringer who assails the validity of a patent bears the burden of proof. White v. Mar-Bel, Inc., 509 F.2d 287, 291 (5th Cir. 1975). The weight of that burden of proof, however, is not so clear. See Stamicarbon, N.V. v. Escambia Chemical Corp., 430 F.2d 920, 924 (5th Cir.) (\"(T)he authorities are in a morass of conflict.\"), cert. denied, 400 U.S. 944, 91 S.Ct. 245, 27 L.Ed.2d 248 (1970); Hobbs v. United States Atomic Energy Comm'n, 451 F.2d 849, 856 (5th Cir. 1971) (\"(T)his Court has employed varying statements of the necessary quantum of proof.\"). This case does not turn on a resolution of this inconsistency, for it is clear that these defendants shouldered the most onerous of standards. The trial court was convinced \"beyond a reasonable doubt\" that the Bird Provision process was anticipated by four separate instances of prior public use.\n \n \n 12\n First, the trial court found that the Bird Provision process has been used on American farms for generations. Generally, in late fall a farm family would slaughter a hog for winter sausage. The carcass would be boned, the trimmings ground and seasoned, and patties formed and put into crocks or cloth bags. The crocks were then sealed by a layer of grease, which, when hardened, rendered the container air-impermeable. The cloth bags were coated with paraffin to maintain freshness. The process, according to two witnesses, was generally completed within 31/2 hours after slaughter and while the temperature of the meat was above 80o . Bird Provision's own expert witness testified that assuming the air-impermeability of the lard sealant, this farm process would fall within the teachings of the Bird Provision patent if completed within 31/2 hours and while the meat was still above 80o .\n \n \n 13\n The second public use found by the district court took place in Lee's Summit, Missouri, at the R. B. Rice Sausage Co. during the mid-1950's. The president of that concern, Harold Rice, testified that in 1955 and 1956 the Rice Co. process from slaughter to package took from 1 to 3 hours and that the product was packaged into saran at 75o to 85o . The deposition testimony of two employees of the Kartridge Pak Machine Co. is corroborative. One of these men had witnessed \"warm and soupy\" sausage being packaged into saran by a Kartridg-Pak machine in early 1956. The other Kartridg-Pak employee had observed Rice's sausage-making operation in 1955 and knew that at least some of the hogs were processed in 3 hours or less and at a temperature of 80o or higher. This testimony is further buttressed by documentary evidence in the form of invoices, dated between 1955 and 1956, for saran film from Tee-Pak, Inc., a manufacturer of artificial casings for the meat industry.\n \n \n 14\n The third public use found by the court was in 1955 by the Keith Brothers Sausage Co. of Salem Virginia. Don Walker was the sausage foreman at Keith from 1952 to 1956. Around September 1954 the Keith plant was purchased by Lorenz Neuhoff, who owned the Valley Dale Packers plant about 2 miles away. Walker testified that prior to the takeover and for a short while thereafter, the Keith plant slaughtered its own hogs and hot-processed the sausage into cellophane bags \"in not more than an hour to an hour and a half\" and while the meat was 80o to 90o . He recalled that Keith had at some point used a shipment of 50,000 saran bags for packaging the hot-processed sausage. These packages were sold at retail, although Keith experienced some returns due to a bloated appearance caused by \"gassing.\" Shortly after Mr. Neuhoff took over the plant, the hogs for the Keith plant were slaughtered at the Valley Dale plant and then sent to Keith to be processed into sausage and bagged. Walker testified that it took a maximum of 21/2 hours to get the product from slaughter at Valley Dale into the bag at Keith and that the product was usually packaged at 80o to 90o temperatures.\n \n \n 15\n Ray C. Mollett was employed as a consultant at the Keith plant for about a month during the summer of 1955. In remarkable detail he recalled the Keith operation. Although Mollett was not able to state how much time elapsed from the slaughter and boning of the hogs at the Valley Dale plant to the arrival of the metal drums of meat at Keith, he did know that when the hogs were slaughtered and boned after lunch, the boned meat was received at around 2:15 to 2:30 in the afternoon at Keith. The temperature of the boned meat was checked by thermometer upon arrival at the Keith plant and was 86o to 96o . The meat was immediately placed in the grinder, mixed, and packaged in saran bags. The temperature of the packaged sausage, measured with a needle-type thermometer, also ranged between 86o and 92o . That saran was used as a packaging material during this time is corroborated by a plate book indicating that in 1955 Tee-Pak, Inc. received an order from Valley Dale to print a three-color design on saran packaging material. Keith ordered all of its sausage bags through Valley Dale.\n \n \n 16\n Mr. Mollett's deposition closed with the following statement: \"All references to hog slaughter at Keith Sausage Company during my time at that plant are in error and are confused with operations at Montgomery.\" After noting this \"puzzling disclaimer,\" the district court stated:\n \n \n 17\n Bird naturally seizes this opportunity to discredit Mr. Mollett's testimony which it says is worthless. I do not find it worthless. Considering that Mr. Mollett and Mr. Walker were asked about operations that occurred some 15 years previously, I think the minor discrepancies in their versions are attributable to the passage of years and are far outweighed by the similarities. But assuming that Mr. Mollett's recollections were of the operations at Montgomery, Alabama (where he was manager of the Frosty Morn Meats plant in 1955 and 1956), they still present strong evidence of a prior use of the patented process.\n \n \n 18\n Bird Provision Co. v. Owens Country Sausage, Inc., 379 F.Supp. at 749.\n \n \n 19\n Bird Provision contends that even if the patented process was used on American farms and at Rice and Keith Brothers and did inadvertently increase the shelf life of the product, \"accidental results, not intended and not appreciated, do not constitute anticipation.\" Eibel Process Co. v. Minnesota & Ont. Paper Co., 261 U.S. 45, 66, 43 S.Ct. 322, 67 L.Ed. 523 (1923). This well-known rule, however, is inapplicable to the instant facts.\n \n \n 20\n In Eibel Process the challenged patent taught a method for greatly improving the efficiency of the Fourdrinier paper-making machine. The main feature of the Fourdrinier machine was an endless wire cloth sieve, the \"paper-making wire,\" which passed over a series of rolls at a constant speed. At one end of the machine, a mixture of wood pulp fibres and water, the \"paper-making stock,\" was discharged in a constant stream upon the wire. When the machine was operated at speeds in excess of around 500 feet per minute, the wire tended to travel faster than the stock, thus creating a rippling effect in the stock and defects in the end product. Eibel discovered that by tilting the wire 12 inches, the movement of the stock was hastened by the gravitational force of the downhill flow. The production speed of the machine was consequently increased without harming the quality of the paper. He patented his discovery. The Supreme Court held that an earlier paper-making machine employing at most a 3-inch tilt for drainage purposes did not constitute a prior use. The Eibel invention was distinguished in two ways: the wire was tilted to accomplish a different purpose and the degree of pitch was much greater. The Court further held that any increase in speed achieved in the earlier machine because of the 3-inch drainage tilt was accidental, unintentional, and unappreciated and therefore did not anticipate Eibel.\n \n \n 21\n The Eibel Court relied on Tilghman v. Proctor, 102 U.S. 707, 26 L.Ed. 279 (1881), which involved a patented process for separating fats and oils into their component parts. In Tilghman the Court held that preexisting processes for soap and candle making did not anticipate the patented process despite the accidental formation of fat acid.\n \n \n 22\n They revealed no process for the manufacture of fat acids. If the acids were accidentally and unwittingly produced, whilst the operators were in pursuit of other and different results, without exciting attention and without its even being known what was done or how it had been done, it would be absurd to say that this was an anticipation of Tilghman's discovery.\n \n \n 23\n Id. at 711-712.\n \n \n 24\n The rule applied in Tilghman and Eibel Process is founded on the policy of rewarding persons who teach the public how to perform processes and construct things that nobody else knows how to perform or construct. 1 A. Deller, Deller's Walker on Patents § 67 at 319 (2d ed. 1964). When the process has been in well-established use, however, novelty is destroyed even though some of the benefits of the process are not recognized or appreciated. See Celite Corp. v. Dicalite Co., 96 F.2d 242 (9th Cir.), cert. denied, 305 U.S. 633, 59 S.Ct. 101, 83 L.Ed. 407 (1938); 1 A. Deller, Deller's Walker on Patents § 59 at 271, § 67 at 321 (2d ed. 1964). In the instant case there is substantial evidence that the identical process claimed by the Bird Provision patent had previously been used for the same purpose: producing and preserving fresh pork sausage. The prior users did not employ the process by chance. They were not unaware of the fact that they had hot-processed the meat into saran and other air-impermeable containers. That the prior public users did not understand or appreciate the shelf life implications of the process does not save the Bird Provision patent from anticipation under § 102(b), for the discovery of the process' shelf life implications involved nothing that was new in its use or method of application. See Ansonia Brass & Copper Co. v. Electrical Supply Co., 144 U.S. 11, 18-19, 12 S.Ct. 601, 36 L.Ed. 327 (1892).\n \n \n 25\n Bird Provision, noting that both Rice and Keith Brothers discontinued their use of saran, next contends that the alleged prior public uses come within the rule that \"(a)n inoperable invention or one that fails to achieve its intended result does not negative novelty.\" United States v. Adams, 383 U.S. 39, 50, 86 S.Ct. 708, 714, 15 L.Ed.2d 572 (1966). In Adams the infringer challenged, for want of novelty, the validity of a patent teaching a water-activated battery using magnesium cuprous chloride electrodes. The patent alleged to anticipate the Adams battery taught the use of magnesium electrodes in an electrolyte of alcoline, chloro-chromate, or a permanganate strengthened with sulphuric acid. Attempts by an expert to assemble the battery alleged to anticipate were met by fire and explosions. In contrast, the Bird Provision process was successfully performed by earlier users, and this is alone sufficient to negate novelty. Corona Cord Tire Co. v. Dovan Chem. Corp., 276 U.S. 358, 383, 48 S.Ct. 380, 387, 72 L.Ed. 610 (1928) (\"A process is reduced to practice when it is successfully performed.\").\n \n \n 26\n Neither does Bird Provision's theory gain support from the cases of Lyon v. Bausch & Lomb Optical Co., 224 F.2d 530 (2d Cir.), cert. denied, 350 U.S. 911, 76 S.Ct. 193, 100 L.Ed. 799 (1955) and Stamicarbon, N.V. v. Escambia Chemical Corp., 430 F.2d 920 (5th Cir.), cert. denied, 400 U.S. 944, 91 S.Ct. 245, 27 L.Ed.2d 248 (1970). In Stamicarbon the alleged infringer defended under § 102(b) on the theory that the patented process in issue had been \"on sale\" in the United States more than one year before the date of the patent application. This Court merely noted that since the process alleged to anticipate did not even work prior to the critical date, it had not been on sale prior to the critical date. In Lyon, the Second Circuit rejected the infringer's defense of prior public use, holding that the earlier process had been \"abandoned . . . as soon as it emerged from the stage of experiment.\" Lyon v. Bausch & Lomb Optical Co., 224 F.2d at 534. In this case the evidence shows that the instances of prior use were not mere abandoned laboratory experiments. First, the prior uses lacked an experimental nature since the process was employed openly in the ordinary course of activities of large companies and innumerable farms. See Rosaire v. Baroid Sales Div., Nat'l Lead Co., 218 F.2d 72, 75 (5th Cir.), cert. denied, 349 U.S. 916, 75 S.Ct. 605, 99 L.Ed. 1249 (1955); 1 A. Deller, Deller's Walker on Patents § 69 at 328 (2d ed. 1964). Second, although a small percentage of returns due to \"gassing\" had been experienced, the decision to return to conventional packaging materials was also influenced by the comparatively high cost of saran, and by mechanical difficulties encountered in sealing the saran film. Novelty \"is denied to old things, without regard to the circumstances which caused their earlier applications to be unsatisfactory or their use to be abandoned.\" Pennington v. National Supply Co., 95 F.2d 291, 294 (5th Cir. 1938); see 1 A. Deller, Deller's Walker on Patents § 67 at 327 (2d ed. 1964).\n \n \n 27\n The fourth instance of prior public use was found to have occurred at the Bird Provision Company itself. The district court based its conclusion on circumstantial evidence. First, a customer acknowledgment dated July 8, 1959, showed an order from Bird Provision for 100,000 2-pound saran bags. The order requested that one-half the bags be sent as soon as possible, but within 7 to 17 days, and complained of faulty backseals on a previous job. The court considered this weighty evidence that Bird Provision had packaged in saran before August 10, 1959. Second, a former employee of Bird Provision testified that while he and Bill Vogel, then general manager of Bird Provision, were conducting a search through company records pursuant to a subpoena duces tecum, Vogel discovered some damaging documents, including a bulletin dated before August 10, 1959, announcing Bird Provision's use of saran and the resultant longer shelf life of Bird Provision sausage. These documents did not appear at trial, which led the district court to believe that Bird Provision had intentionally withheld them. The court was further persuaded to this conclusion by the testimony of an expert document examiner, who indicated that three exhibits introduced by Bird Provision had been manufactured to bolster its contentions.\n \n \n 28\n Although the district court correctly noted that unfavorable inferences may be drawn against a party found to have destroyed, fabricated, or altered evidence, the evidence of misconduct is equivocal and capable of innocent explanations. Likewise, the customer acknowledgment cited by the court does not reveal whether the saran bags ordered for no later than July 25 delivery were actually used prior to August 10, 1959; nor does it indicate what they might have been used for; nor does it disclose whether the \"previous job\" related to an order for saran as opposed to some other variety of packaging material. On the whole, the circumstantial evidence of prior public use at Bird Provision probably falls short of the stringent quantum of proof necessary to invalidate a patent under § 102(b). The district court's findings regarding sausage-making activities on American farms and at Rice and Keith Brothers, however, are not clearly erroneous. The record supports the conclusion that these activities constitute prior public uses under § 102(b).\n \n \n 29\n On the issue of prior public use, the district court concluded:\n \n \n 30\n In view of all the foregoing, the Court is convinced, beyond a reasonable doubt, that the process covered by the Bird patent was in public use or on sale in the United States more than one year before the date the patent was applied for; the patent is therefore declared invalid.\n \n \n 31\n 379 F.Supp. at 751. Bird Provision argues it is impossible to determine from this language which, if any, of the four separately alleged prior public uses, standing alone, constituted an anticipation of its patented process. The district court's memorandum opinion, fairly read, shows that each of the four instances of prior public use discussed by the court was found to anticipate the process claimed by the Bird Provision patent.B. Obviousness\n \n \n 32\n In addition to being novel, an improvement over the prior art must also be nonobvious in order to qualify for patent protection. The standard for disqualifying an improvement for obviousness was codified by Congress in 35 U.S.C.A. § 103.\n \n \n 33\n A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.\n \n \n 34\n Although the question of obviousness is one of law, its resolution requires inquiry into three basic factual areas. \"Under § 103, the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved.\" Graham v. John Deere Co., 383 U.S. 1, 17, 86 S.Ct. 684, 694, 15 L.Ed.2d 545 (1966).\n \n \n 35\n Bird Provision argues that the district court failed to analyze the obviousness issue in the manner prescribed by the Supreme Court in Graham. On a fair reading of the entire opinion, it is clear that the district court did go through the three-tier Graham analysis, although the findings are not as specific and particularized as is desirable. See American Seating Co. v. Southeastern Metals Co., 412 F.2d 756 (5th Cir. 1969).\n \n \n 36\n Bird Provision does not dispute that the four essential criteria of its process patent were each, by themselves, disclosed in the prior art. In view of the numerous prior art references cited by defendants, Bird Provision could hardly have contended otherwise. The district court discussed two evidences of the prior art, a 1953 article published in the trade magazine Meat and a prior patent issued to Turner, which, when read together, disclose the essential elements of the Bird Provision process.\n \n \n 37\n The Meat article, entitled \"From Pen to Package in One Hour!,\" describes with amazement Bird Provision's \"straight-through\" sausage process by which live hogs were converted into 1-pound bags of sausage in approximately 1 hour. Although the article mentions neither the packaging material used nor the temperature of the meat when packaged, it does relate that the \"(h)og is slaughtered, cut, ground and mixed for sausage, and packaged before cooling.\" As the Bird Provision patent tells us, sausage meat processed into the package approximately 1 hour from slaughter will retain approximately 92o of its original internal body temperature. Since fresh ground pork is necessarily \"warm and fluent\" if processed within 31/2 hours and before the meat temperature drops below 80o , three of the four essential criteria of the Bird Provision process are disclosed in the Meat article. This important element of prior art was not before the Patent Office when the Bird Provision patent was issued. Consequently, the presumption of validity otherwise attaching to the patent is weakened, if not destroyed. American Seating Co. v. Southeastern Metals Co., 412 F.2d 756 (5th Cir. 1969).\n \n \n 38\n The fourth essential process criteria, packaging in air-impermeable containers, is disclosed by the Turner patent, which was cited by the Patent Office in initially rejecting the patent in suit. The Turner patent deals with a method of producing meat products, including sausage, and packaging them in air-impermeable film. Saran is specifically mentioned as a suitable packaging material.\n \n \n 39\n Bird Provision contends that although the elements of its process are old, the combination of those elements results in a new and patentable process. The combination, argues Bird Provision, achieves a synergistic result a result greater in effect than the sum of the several effects of the individual elements and therefore satisfies the standards of patentability appropriate for combination patents. See Sakraida v. Ag Pro, Inc., 425 U.S. 273, 282, 96 S.Ct. 1532, 47 L.Ed.2d 784 (1976); A. & P. Tea Co. v. Supermarket Corp., 340 U.S. 147, 152-153, 71 S.Ct. 127, 95 L.Ed. 162 (1950). There is no need to engage in an exacting search for synergism, for Bird Provision's combination lacks a more elementary requirement of patentability: novelty. Not only are the elements of Bird Provision's combination old, the combination itself is old. At least two major sausage producers and a host of farmers had openly employed the combination of hot processing sausage into air-impermeable containers within the time and temperature limits prescribed by the Bird Provision patent.\n \n \n 40\n It follows then that the only information brought to light by Bird Provision in the venerable art of making fresh pork sausage was the critical importance of completing the \"straight-through\" process within approximately 31/2 hours and while the meat retains at least 80o of its original temperature. Certainly one skilled in the art of processing meat products would recognize that fresh pork sausage cannot remain exposed to the open air indefinitely. That spoilage is hastened by the natural action of bacterial agents in the air is an elementary principle of microbiology obvious to anyone who has relaxed too long before wrapping and refrigerating leftovers from the evening meal. The 1953 Meat article indicates that the state of technology in the late 1950's dictated the preferred time and temperature limits claimed by the Bird patent: converting a live hog into packaged sausage ready for the grocer's shelf took approximately 1 hour. From this starting point one skilled in the art needed merely to conduct sausage-processing experiments in time intervals successively longer than 1 hour and at temperatures successively lower than 90o until the product demonstrated unsatisfactory shelf life properties. See Application of Clinton, 527 F.2d 1226 (Cust. & Pat.App.1976). Ascertaining the maximum time and minimum temperature limits claimed by the Bird Provision patent was the work of the patient experimenter skilled in the art, not the inventor. See, e. g., California Research Corp. v. Ladd, 123 U.S.App.D.C. 601, 608, 356 F.2d 813, 820 (1966) (\"A mere location of optimum conditions and characteristics, however useful, is said not to warrant a patent monopoly.\"); Application of Aller, 220 F.2d 454, 456, 42 C.C.P.A. 824 (1955) (\"(W)here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.\").\n \n III. Attorney Fees\n \n 41\n Under 35 U.S.C.A. § 285 a court may, in exceptional cases, award attorney fees to the prevailing party in patent litigation. The record contains no indication that Bird Provision did not proceed in this litigation under a bona fide belief that its patent claims were valid. This, therefore, is not an \"exceptional case\" calling for an award of attorney fees. Parker v. Motorola, Inc., 524 F.2d 518, 535 (5th Cir. 1975), cert. denied, 425 U.S. 975, 96 S.Ct. 2175, 48 L.Ed.2d 799 (1976).\n \n IV. Conclusion\n \n 42\n We hold Bird Provision's patent invalid for prior public use under 35 U.S.C.A. § 102(b) and for obviousness under 35 U.S.C.A. § 103, but decline to award attorney fees under 35 U.S.C.A. § 285. It is therefore unnecessary to reach defendants' cross-appeal contentions regarding the patent's indefiniteness and Bird Provision's alleged fraud on the Patent Office.\n \n \n 43\n AFFIRMED.\n \n \n \n 1\n The Bird Provision patent claims as new:\n \n \n 1\n A method of preparing pork products, comprising the steps of: boning a freshly slaughtered carcass while still hot into trimmings; grinding desired carcass trimmings while still warm and fluent; mixing the ground trimmings while fluent and above approximately 80o F., mixing to be completed not more than approximately 31/2 hours after the carcass has been bled and stuffing the warm and fluent mixed trimmings into air impermeable casings\n \n \n 2\n The method as defined in claim 1, wherein the trimmings are seasoned before mixing, mixing being completed within approximately one hour after the carcass has been bled and the internal temperature of the mixed and seasoned trimmings is not less than approximately 90o F\n \n \n 3\n The method as defined in claim 2, wherein the carcass is boned into trimmings within approximately 45 minutes after being bled while the internal temperature thereof is not less than approximately 100o F\n \n \n 4\n The method as defined in claim 3, wherein desired proportions of meat to fat components of the trimmings from the boned carcass are ground within approximately 55 minutes after the carcass has been bled while the internal temperature of the ground trimmings is not less than approximately 97o F\n \n \n 5\n The method as defined in claim 4, wherein the trimmings are settled within the casings for removal of voids and freezing the resulting product after approximately 11/2 hours has elapsed since the carcass was bled with the internal temperature of the trimmings not less than approximately 90o F. the freezing interval being 2 hours during which time the internal temperature of the product is reduced to approximately 32o F\n \n \n 6\n The method as defined in claim 1, wherein the stuffed trimmings are permitted to settle within the casings\n \n \n 7\n A method of producing pork sausages comprising: bleeding a freshly slaughtered carcass: immediately hot boning the carcass following bleeding; grinding the boning products while fluent and hot into a state suitable for filling in sausage casings; filling air-impermeable casings with said ground boning products fresh, fluent and above 80o F. after the elapse of no more than 31/2 hours following bleeding for freezing immediately thereafter so as to retain the fresh qualities thereof and avoid spoilage for a prolonged period of time\n Bird Provision maintains that the district court erred in invalidating the patent because it did not focus attention on the patent's claims. In particular, Bird Provision notes that the \"settling step\" of claim 6 and the \"freezing step\" of claim 7 were not mentioned in the court's memorandum opinion. The evidence specifically shows that the freezing step of claim 7 was employed by prior public users, and it seems clear that some degree of \"settling,\" which is not in any way defined in claim 6, must occur anytime a warm and fluent substance is placed in a container. The district court's findings of prior public use and obviousness clearly extended to all seven claims of the Bird Provision patent.\n \n \n ", "ocr": false, "opinion_id": 351941 } ]	Fifth Circuit	Court of Appeals for the Fifth Circuit	F	USA, Federal
2,618,957	Coyte, Enoch, Tursi	1983-01-20	false	goodboe-v-gabriella	Goodboe	Goodboe v. Gabriella	Jerome Francis GOODBOE, Plaintiff-Appellant, v. Police Officer Victor D. GABRIELLA of the Westminster, Colorado Police Department; Bethesda Hospital Association, a Colorado Non-Profit Corporation; Dr. Keith Davis, Ph.D.; And Dr. Charles Titus, M.D., Defendants-Appellees	William J. Fritsche, Aurora, for plaintiff-appellant., Wood, Ris & Hames, Eugene S. Hames, Mark R. Davis, Denver, for defendant-ap-pellee Victor D. Gabriella., Paul D. Renner, P.C., John R. Rodman, Denver, for defendant-appellee Bethesda Hosp. Ass’n., Glasman, Jaynes & Carpenter, Richard H. Glasman, Denver, for defendant-appellee Dr. Keith Davis, Ph.D., Hall & Evans, Richard D. Hall, Denver, for defendant-appellee Dr. Charles Titus.	null	null	null	null	null	null	null	Rehearing Denied Feb. 17, 1983., Certiorari Denied April 25, 1983.	null	null	5	Published	null	<parties id="b1095-11"> Jerome Francis GOODBOE, Plaintiff-Appellant, v. Police Officer Victor D. GABRIELLA of the Westminster, Colorado Police Department; Bethesda Hospital Association, a Colorado non-profit corporation; Dr. Keith Davis, Ph.D.; and Dr. Charles Titus, M.D., Defendants-Appellees. </parties><br><docketnumber id="b1095-14"> No. 80CA0211. </docketnumber><br><court id="b1095-15"> Colorado Court of Appeals, Div. I. </court><br><decisiondate id="b1095-17"> Jan. 20, 1983. </decisiondate><br><otherdate id="b1095-18"> Rehearing Denied Feb. 17, 1983. </otherdate><br><otherdate id="b1095-19"> Certiorari Denied April 25, 1983. </otherdate><br><attorneys id="b1097-11"> <span citation-index="1" class="star-pagination" label="1053"> *1053 </span> William J. Fritsche, Aurora, for plaintiff-appellant. </attorneys><br><attorneys id="b1097-12"> Wood, Ris & Hames, Eugene S. Hames, Mark R. Davis, Denver, for defendant-ap-pellee Victor D. Gabriella. </attorneys><br><attorneys id="b1097-13"> Paul D. Renner, P.C., John R. Rodman, Denver, for defendant-appellee Bethesda Hosp. Ass’n. </attorneys><br><attorneys id="b1097-14"> Glasman, Jaynes & Carpenter, Richard H. Glasman, Denver, for defendant-appellee Dr. Keith Davis, Ph.D. </attorneys><br><attorneys id="b1097-15"> Hall & Evans, Richard D. Hall, Denver, for defendant-appellee Dr. Charles Titus. </attorneys>	[ "663 P.2d 1051" ]	[ { "author_str": "Enoch", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 6666, "opinion_text": "\n663 P.2d 1051 (1983)\nJerome Francis GOODBOE, Plaintiff-Appellant,\nv.\nPolice Officer Victor D. GABRIELLA of the Westminster, Colorado Police Department; Bethesda Hospital Association, a Colorado non-profit corporation; Dr. Keith Davis, Ph.D.; and Dr. Charles Titus, M.D., Defendants-Appellees.\nNo. 80CA0211.\nColorado Court of Appeals, Div. I.\nJanuary 20, 1983.\nRehearing Denied February 17, 1983.\nCertiorari Denied April 25, 1983.\n1053 William J. Fritsche, Aurora, for plaintiff-appellant.\nWood, Ris & Hames, Eugene S. Hames, Mark R. Davis, Denver, for defendant-appellee Victor D. Gabriella.\nPaul D. Renner, P.C., John R. Rodman, Denver, for defendant-appellee Bethesda Hosp. Ass'n.\nGlasman, Jaynes & Carpenter, Richard H. Glasman, Denver, for defendant-appellee Dr. Keith Davis, Ph.D.\nHall & Evans, Richard D. Hall, Denver, for defendant-appellee Dr. Charles Titus.\nENOCH, Chief Judge.\nPlaintiff, Jerome Goodboe, appeals from an adverse judgment entered on a jury verdict in his suit for damages allegedly resulting from his confinement to and treatment at a mental hospital. We affirm in part, reverse in part, and remand.\nOn February 24, 1975, plaintiff's wife contacted defendant Davis, a psychologist who had previously treated plaintiff, and had counseled plaintiff and his wife regarding certain marital problems, concerning the possible hospitalization of plaintiff. Dr. Davis and plaintiff's wife agreed that plaintiff should be hospitalized. Subsequently, Dr. Davis contacted the defendant Bethesda Hospital to ascertain if a bed was available, and plaintiff's wife called for an ambulance to pick up plaintiff and transport him to Bethesda.\nShortly thereafter, an ambulance, and two Westminster policemen, defendant Gabriella, and another officer not a party to this action, responded to the call for assistance from plaintiff's wife. There was evidence that plaintiff was intoxicated when ambulance attendants arrived. His hospital admission forms were signed by Dr. Davis, and by a medical doctor connected with the hospital. The diagnosis of plaintiff on admission was \"intoxication, paranoid ideation, suspiciousness and grandiosity,\" with a notation of \"acute alcohol and librium intoxication.\" The consent to treatment form was signed for plaintiff that evening by his wife, who had followed the ambulance to the hospital. The next day plaintiff voluntarily executed a consent to treatment form as well. On February 27, 1975, Dr. Titus, also a medical doctor, replaced the first physician and thereafter worked with Dr. Davis in the treatment of plaintiff.\nOn March 3, 1975, Dr. Titus recorded in his progress notes for plaintiff that he \"impresses as schizophrenic with delusional 1054 thought processes around soma and wife,\" and that a court order \"might be considered if he becomes involuntary.\"\nOn March 7, 1975, plaintiff made a written demand to be released from the hospital. Dr. Titus, in a letter in which he diagnosed plaintiff as a \"schizophrenic, psychotic paranoid, acute,\" a more serious condition than the original diagnosis of \"paranoid ideation,\" petitioned the Adams County District Court for an order of involuntary hospitalization pursuant to § 27-9-103(3)(c), C.R.S.1973. (Sections 27-9-101, et seq., C.R.S.1973, were repealed and a new mental health code was enacted, § 27-10-101, et seq., C.R.S.1973, effective July 1, 1975.) The court issued the order on March 10, 1975, and a guardian ad litem was later appointed for plaintiff. The guardian ad litem requested termination of the order, and on April 14, 1975, the Adams County District Court terminated the order.\nPlaintiff's complaint alleged that officer Gabriella falsely imprisoned plaintiff, and that the hospital, the psychologist, and the attending medical doctor committed the torts of false imprisonment, assault, and battery. The major defense for all the parties was that until March 7, 1975, plaintiff consented to treatment in that he was a voluntary patient, and that the defendants were immunized from liability for any damages arising after that date by virtue of the provisions of § 27-9-122, C.R.S.1973, and by the March 10 court order.\nThe trial court granted a directed verdict in favor of the police officer, instructed the jury that it could not find \"any of the defendants liable because of their actions after entry of the court order of March 10,\" and refused to instruct the jury regarding the elements of assault and battery. The jury returned a verdict in favor of the doctors and the hospital regarding liability prior to March 10 on the remaining claim of false imprisonment. Plaintiff alleges as error the entry of these three orders and challenges various evidentiary rulings as well.\n\nI.\nThe trial court found that the doctors and the hospital could not be liable for any actions occurring after March 10, 1975, because after that date they were acting pursuant to a valid court order for involuntary hospitalization which immunized them from liability. Plaintiff argues that the court order for involuntary hospitalization did not bar his action for false imprisonment because the order was not obtained in good faith. The trial court, however, refused to submit to the jury the issue of good faith and refused to make any findings regarding the sufficiency of the evidence on the issue of good faith. That refusal was premised on the court's finding that the judge who first issued the order had implicitly found the application to be in good faith, and on its further finding that it would be improper to allow plaintiff to attack collaterally the court order in this tort action inasmuch as the original order had not been appealed. We agree with plaintiff's position and conclude that it was error not to allow the jury to decide whether the court order was obtained in good faith.\nSection 27-9-122, C.R.S.1973, in effect at the time of plaintiff's hospitalization, provided that:\n\"No person, acting in good faith under any order of court directing that a respondent be held in custody or be held for confinement, examination, diagnosis, observation, or treatment, and not acting in violation or abuse thereof, shall be liable for such action. No action for false arrest or false imprisonment shall be brought against any peace officer or sheriff who, in good faith, takes a person into protective custody under § 27-9-104. No action based on the act or fact of filing a petition shall be brought against any person who, in good faith, files a petition or otherwise acts under § 27-9-105, or § 27-9-106; but any person who wilfully causes, or conspires with or assists another to cause, unwarranted hospitalization or confinement under the provisions of this article shall be liable in damages to the person so hospitalized or confined.\"\n1055 In Province v. Brown, 188 Colo. 83, 532 P.2d 948 (1975), this statute was interpreted by our Supreme Court to set out an affirmative defense of immunity which would bar liability against those persons acting pursuant to the court order if they \"acted in good faith and without violation or abuse of the court order.\" However, the statute does not require the alleged victim of an unwarranted hospitalization, such as the plaintiff here, to appeal the original commitment order, and it was error for the trial court to hold that the March 10 court order barred plaintiff's cause of action for any acts of these defendants after its entry.\nAs mentioned, the trial court made no findings regarding the sufficiency of the evidence on the issue of good faith and gave an instruction removing that issue from the consideration of the jury. The effect of such an action was to grant a partial directed verdict in favor of these defendants. The doctors and the hospital, however, urge us to rule that, as a matter of law, there was no evidence of bad faith, and on that basis to affirm the action of the trial court. This we decline to do.\nWhether the doctors acted in good faith when they filed the petition for an involuntary hospitalization order and whether the hospital acted in good faith pursuant to that order are questions of fact. See Brown v. Rosenbloom, 34 Colo. App. 109, 524 P.2d 626 (1974), aff'd sub nom., Province v. Brown, supra; see also Gonzales v. Harris, 34 Colo. App. 282, 528 P.2d 259, rev'd on other grounds, 189 Colo. 518, 542 P.2d 842 (1975) (interpreting the good faith provisions in the \"shopkeeper's privilege\" statute, § 18-4-407, C.R.S.1973). Therefore, it was for the jury to decide whether these defendants acted in good faith. A directed verdict on this issue should be granted only if, assuming the truth of the plaintiff's evidence, and drawing every favorable inference of fact therefrom, reasonable persons could reach only one conclusion, that being that these defendants acted in good faith. Metropolitan Gas Repair Service Inc. v. Kulik, 621 P.2d 313 (Colo.1981); Comtrol, Inc. v. Mountain States Telephone & Telegraph Co., 32 Colo. App. 384, 513 P.2d 1082 (1973).\nHere, plaintiff testified that Dr. Davis, in response to plaintiff's threat to sue if not released, said that he would have to \"cover\" himself. Furthermore, evidence was presented that Drs. Davis and Titus changed plaintiff's diagnosis from paranoid personality to \"schizophrenic psychotic paranoid acute\" on the day the order for involuntary hospitalization was requested.\nMoreover, plaintiff's theory was that his hospitalization resulted from a conspiracy between his wife, the doctors, the hospital, and the police, to obtain control of his monetary assets and custody of his child. This theory was consistent with evidence in the record that plaintiff's wife sought a conservatorship for plaintiff, that she was planning to seek custody of his child, that she had been in contact with Dr. Davis prior to calling for the ambulance for plaintiff, and that she went to the hospital on the evening of February 24th to sign plaintiff's consent to treatment form when plaintiff was, in the opinion of the hospital staff, physically unable to sign such a consent.\nViewing this evidence in light of the standard noted above, we conclude that the trial court should not have taken the question of whether these defendants acted in good faith from the consideration of the jury by issuing the limiting instruction. See Province v. Brown, supra. Therefore, the limiting instruction given by the court was improper, and the judgment as to these defendants must be reversed.\n\nII.\nThe police officer's defense to plaintiff's allegation of false imprisonment was that plaintiff was never taken into custody by the police. After hearing all of the evidence, the trial court granted a directed verdict in the police officer's favor. We affirm.\nAbsent any legal justification for restricting another's freedom of movement, each of the three following elements must be proven to sustain a claim for false imprisonment: (1) The defendant intended to 1056 restrict plaintiff's freedom of movement; (2) plaintiff's freedom of movement was restricted for a period of time, however short, either directly or indirectly by an act of defendant; and (3) plaintiff was aware that his freedom of movement was restricted. Colo.J.I. 21:1 (2d ed. 1980); see Restatement (Second) of Torts § 35 (1965).\nAgain applying here the standard for a directed verdict noted above, we conclude that the facts, when viewed in a light most favorable to plaintiff, do not establish a claim for false imprisonment. The only evidence of any kind to support plaintiff's claim for false imprisonment against defendant Gabriella was plaintiff's statement that defendant touched his elbow in a non-forceful manner, and plaintiff's testimony that the mere presence of uniformed police officers intimidated him into submission. There were no words spoken by defendant Gabriella to plaintiff, and the two officers had no further contact or involvement with plaintiff after the ambulance attendants placed plaintiff in the ambulance. We agree with the trial court ruling that such evidence was insufficient to withstand defendant Gabriella's motion for a directed verdict on plaintiff's claim for false imprisonment, and we hold that reasonable minds could not reach the conclusion that defendant Gabriella intentionally sought to restrict plaintiff's freedom of movement. Comtrol, Inc., supra; see Colo.J.I. 21:2 and 21:3 (2d ed. 1980); Restatement (Second) of Torts §§ 36-38, 43, 44 (1965). We therefore affirm the granting of a directed verdict in favor of defendant Gabriella.\n\nIII.\nPlaintiff next contends that the trial court erred in refusing to instruct the jury on the torts of assault and battery. We disagree.\nPlaintiff alleged that, while he was confined in the hospital, the psychologist, the physician, and the hospital staff committed various batteries against plaintiff, including the drawing of plaintiff's blood and the involuntary sedation of plaintiff. In conjunction with this claim of battery, plaintiff also alleges that these defendants caused him to fear that his resistance to treatment would have resulted in punitive measures. Allegedly as a result of this fear, plaintiff consented to treatment and now contends that under such conditions of duress, defendants' treatment of plaintiff constitutes an assault. The evidence does not support these allegations.\nThe uncontroverted testimony of the defense witnesses was that all medications were simply offered to plaintiff, and that no medication was given intravenously. Moreover, the testimony indicates that when plaintiff refused offered medication, no efforts were made to force him to take the medication. There is no evidence that any threats were made, nor that plaintiff was restrained and forcefully administered treatment at any time during his hospitalization. Thus we find no evidence to support plaintiff's claim for battery.\nOn his claim of assault, plaintiff testified that he was afraid both to resist when medication was offered, and to withhold his consent when blood tests were requested. However, there is no evidence that this apprehension was caused by the intentional acts of any of these defendants. See Mooney v. Carter, 114 Colo. 267, 160 P.2d 390 (1945). We therefore agree with the trial court's action in refusing to instruct the jury on the elements of assault and battery.\n\nIV.\nPlaintiff further contends that the trial court erred in instructing the jury concerning the elements of false imprisonment by stating that the defendants must have \"unlawfully\" intended to restrict the plaintiff's freedom of movement. We agree, and because of this erroneous instruction, the verdict of the jury and the judgment entered on the claim of false imprisonment must be set aside.\nEarly case law approved the use of the word \"unlawful\" in instructions on false imprisonment in order to show that the imprisonment was without legal justification. Baker v. Barton, 1 Colo. App. 183, 28 1057 P. 88 (1891); see Union Pacific R.R. v. Dennis, 73 Colo. 66, 213 P. 332 (1923). However, with the decision in Crews-Beggs Dry Goods Co. v. Bayle, 97 Colo. 568, 51 P.2d 1026 (1935), legal justification was treated as an affirmative defense. See Restatement (Second) of Torts § 118 (1965); W. Prosser, Torts § 12 (4th ed. 1971). Thus, the instruction on false imprisonment found in Colo.J.I. 21:1 (2d ed. 1980) does not use the term \"unlawfully\" in its explanation of the elements of the tort, but does provide in the last paragraph of the recommended instruction a place for the listing of any affirmative defenses to false imprisonment, such as legal justification. Following the form suggested in that instruction would have been the most appropriate way in which to instruct the jury on the issue of legal justification. Accordingly, at the new trial, we recommend that the above procedure be followed by the trial court.\n\nV.\nSince a new trial will be required we will address certain other issues asserted by plaintiff.\nPlaintiff first contends that the trial court erred in admitting evidence of plaintiff's receipt of a government psychiatric disability pension. We disagree.\nPlaintiff may be correct in arguing that, under the collateral source rule, his receipt of the government pension did not constitute a set-off against damages for which the defendants were liable. See Moyer v. Merrick, 155 Colo. 73, 392 P.2d 653 (1964). However, the evidence that plaintiff was receiving a psychiatric disability pension was not introduced to establish a set-off, but rather to prove plaintiff's psychiatric condition immediately prior to hospitalization in order to show that the hospitalization was warranted. Therefore, it was not error for the trial court to allow defendants to show that plaintiff was receiving a government psychiatric disability pension, especially where, as here, the trial court did not allow the defendants to present evidence concerning the amount of the pension.\n\nVI.\nWe find no merit in plaintiff's contention that it was error for the trial court to prohibit testimony concerning a statement allegedly made by the judge who terminated the order of involuntary hospitalization. Plaintiff alleged that the judge apologized to plaintiff at the time he terminated the hospitalization order, making a statement to the effect that the order never should have been entered in the first place. This statement was hearsay and does not fall within any of the hearsay exceptions. Therefore, we agree with the trial court ruling that the statement should not have been admitted. Colorado Rules of Evidence 802.\n\nVII.\nPlaintiff also contends that the trial court erred in permitting cross-examination of one of plaintiff's witnesses concerning the fact that plaintiff had been arrested for driving under the influence subsequent to his release from hospitalization. We agree.\nPlaintiff called the attorney who served as his guardian ad litem after entry of the order for involuntary hospitalization as a witness to testify concerning plaintiff's mental condition near the time of hospitalization. Defendants sought to impeach this witness' testimony by showing that this witness represented plaintiff in other unrelated legal matters. It was established during cross-examination that the witness represented plaintiff in the early stages of this lawsuit, but withdrew when it became apparent that he would be called as a witness on plaintiff's behalf. It was also established that the witness represented plaintiff on charges of driving under the influence which arose subsequent to plaintiff's release from the hospital. The fact that plaintiff was arrested for driving under the influence after his release from the hospital was irrelevant to his complaint for false imprisonment and assault and battery, and, under the circumstances, was prejudicial.\nThe references made to driving under the influence charges were unnecessary for the 1058 impeachment of the witness. It had already been established that the witness represented plaintiff in this lawsuit, and the questioning should have been limited to whether the witness also represented plaintiff in other matters. Therefore, there should be no reference to driving under the influence charges during any cross-examination at a new trial.\nWe have reviewed the other alleged errors and find them to be without merit.\nThe judgment is affirmed as to the directed verdict in favor of defendant Gabriella, and as to the judgment in favor of the remaining defendants on the claims of assault and battery. The judgment is reversed, however, as to the complaint for false imprisonment against defendants Bethesda Hospital and Drs. Titus and Davis, and the cause is remanded for a new trial in accordance with the views expressed herein.\nCOYTE and TURSI, JJ., concur.\n", "ocr": false, "opinion_id": 2618957 } ]	Colorado Court of Appeals	Colorado Court of Appeals	SA	Colorado, CO
595,272	null	1992-11-17	false	grain-dealers-mutual-insurance-company-v-hope-crawley-lower-roger-jones	null	null	Grain Dealers Mutual Insurance Company v. Hope Crawley Lower Roger Jones Charles Frunk, and Jerry Leon Guynn American Legion 182 and Aetna Casualty and Surety Company, Aetna Casualty and Surety Company, Third-Party-Plaintiff-Appellee v. Roger Jones and Charles Frunk, Third-Party-Defendants-Appellants, and Jerry Leon Guynn, Third-Party-Defendant	null	null	null	null	null	null	null	null	null	null	null	6	Published	null	null	[ "979 F.2d 1411" ]	[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/979/979.F2d.1411.91-5137.91-5136.html", "author_id": null, "opinion_text": "979 F.2d 1411\n GRAIN DEALERS MUTUAL INSURANCE COMPANY, Plaintiff-Appellee,v.Hope Crawley LOWER; Roger Jones; Charles Frunk,Defendants-Appellants,andJerry Leon Guynn; American Legion # 182; and AetnaCasualty and Surety Company, Defendants.AETNA CASUALTY AND SURETY COMPANY, Third-Party-Plaintiff-Appellee,v.Roger JONES and Charles Frunk, Third-Party-Defendants-Appellants,andJerry Leon Guynn, Third-Party-Defendant.\n Nos. 91-5136 and 91-5137.\n United States Court of Appeals,Tenth Circuit.\n Nov. 17, 1992.\n \n Harry A. Parrish, of Knight, Wilkerson & Parrish, Tulsa, Okl., for Grain Dealers Mutl. Ins. Co., plaintiff-appellee.\n Joseph F. Clark, Jr., of Clark and Stainer, P.A., and Thomas Whalen, Tulsa, Okl., for Hope Crawley Lower, Roger Jones, and Charles Frunk, defendants-appellants.\n John H. Tucker, of Rhodes, Hieronymus, Jones, Tucker & Gable, Tulsa, Okl., for Aetna Cas. and Sur. Co., third-party-plaintiff-appellee.\n Before McKAY, Chief Judge, and BARRETT, Circuit Judge, and BRIMMER,** District Judge.\n BARRETT, Senior Circuit Judge.\n \n \n 1\n These actions arise out of a motor vehicle accident on April 12, 1988, in which Viola Mae Frunk was killed and Hope Crawley Lower was injured. Also involved in the accident was Jerry Leon Guynn, an uninsured and allegedly intoxicated motorist. Mrs. Lower filed a state court action against Mr. Guynn and American Legion # 182, which she alleged tortiously served liquor to Mr. Guynn prior to the accident. Roger Jones and Charles Frunk, as co-administrators of Mrs. Frunk's estate, filed a separate state court action against Mr. Guynn and American Legion # 182. Grain Dealers Mutual Insurance Company (Grain Dealers) insures American Legion # 182 under a general liability policy.\n \n \n 2\n Mrs. Frunk was an authorized independent Tupperware distributor, who was assigned a car owned by Premark International Corporation (Premark), the parent company of Tupperware Home Parties. Premark's fleet of more than 8,000 vehicles is insured under a business auto policy by Aetna Casualty and Surety Company (Aetna). Premark's fleet policy includes uninsured motorist coverage and, as an authorized independent Tupperware distributor, Mrs. Frunk was an \"additional insured\" under this policy. Accordingly, Mr. Jones and Mr. Frunk, on behalf of Mrs. Frunk, named Aetna a defendant in their state court action, seeking uninsured motorist benefits under Premark's fleet policy.\n \n \n 3\n After the state court actions were filed, plaintiff-appellee Grain Dealers filed pursuant to 28 U.S.C. § 2201 the underlying action, seeking a declaratory judgment that it was not liable under American Legion # 182's general liability policy for damages caused by American Legion # 182's allegedly tortious act. Third-party plaintiff-appellee Aetna also filed its third-party complaint, seeking a declaratory judgment that it had only limited liability for uninsured motorist benefits under Premark's business auto policy to Mr. Jones and Mr. Frunk, on behalf of Mrs. Frunk.\n \n \n 4\n The district court, in an order filed August 6, 1991, granted summary judgment in favor of plaintiff-appellee Grain Dealers and third-party-plaintiff-appellee Aetna in their declaratory judgment actions. Defendants-appellants Mrs. Lower, Mr. Jones, and Mr. Frunk appeal from this order. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.1\n \n \n 5\n * As a threshold matter, Grain Dealers submits, without support, that Appellants lack standing to appeal the district court order granting summary judgment. The gist of Grain Dealers' argument is as follows: Appellants are third parties who have a claim against Grain Dealers for insurance proceeds, if at all, only through American Legion # 182, its insured. The district court determined that Grain Dealers' policy with American Legion # 182 does not provide coverage for American Legion # 182's allegedly tortious act upon which Appellants' state court actions against American Legion # 182 are based. Because American Legion # 182, also a defendant in Grain Dealers' declaratory judgment action, chose not to appeal the district court's judgment of no coverage, that judgment is final as to American Legion # 182. Therefore, according to Grain Dealers, Appellants' right to appeal the judgment must also have been extinguished.\n \n \n 6\n Grain Dealers errs. Where, as here, the appellant is a potential judgment creditor claiming liability in a state tort suit against the insured and is also a named defendant in the insurer's declaratory judgment action against the insured, the appellant has standing to appeal from the district court's determination that the insurer is not liable to the insured under the policy, even if the insured chooses not to appeal. See Dairyland Ins. Co. v. Makover, 654 F.2d 1120, 1123 (5th Cir.1981). Appellants filed state court actions against American Legion # 182, seeking damages for its allegedly tortious conduct. Grain Dealers voluntarily named Appellants as co-defendants with American Legion # 182 in its declaratory judgment action. Therefore, Appellants have standing to appeal the district court judgment, even though American Legion # 182 chose not to appeal. Grain Dealers' motion to dismiss on this basis is therefore denied.\n \n \n 7\n Turning to the merits, then, Appellants make two arguments: (1) American Legion # 182 is not \"in the business\" of selling or serving alcoholic beverages and therefore its potential liability does not fall within a policy exclusion asserted by Grain Dealers; and (2) uninsured motorist coverage can be \"stacked\" under Oklahoma law and should be \"stacked\" under the clear language of Premark's policy with Aetna.2\n \n II\n \n 8\n Whether American Legion # 182, a nonprofit organization, is \"in the business\" of selling or serving alcoholic beverages is a question of first impression in Oklahoma. Our review of the district court's determination of state law is de novo. Salve Regina College v. Russell, --- U.S. ----, ----, 111 S. Ct. 1217, 1221, 113 L. Ed. 2d 190 (1991).\n \n \n 9\n The policy exclusion states, in pertinent part:\n \n \n 10\n 2. Exclusions.\n \n This insurance does not apply to:\n \n 11\n ....\n \n \n 12\n c. \"Bodily injury\" or \"property damage\" for which any insured may be held liable by reason of:\n \n \n 13\n (1) Causing or contributing to the intoxication of any person;\n \n \n 14\n (2) The furnishing of alcoholic beverages to a person under the legal drinking age or under the influence of alcohol; or\n \n \n 15\n (3) Any statute, ordinance or regulation relating to the sale, gift, distribution or use of alcoholic beverages.\n \n \n 16\n This exclusion applies only if you are in the business of manufacturing, distributing, selling, serving or furnishing alcoholic beverages.\n \n \n 17\n See Brief in Chief, Attachment \"Commercial General Liability Coverage Form,\" § 1A. p 2.c. The phrase \"in the business\" is not defined in the policy. Appellants' argument that American Legion # 182 is not \"in the business\" of selling or serving alcohol is based on American Legion # 182's nonprofit status. Appellants concede that American Legion # 182 sells and serves liquor five days a week and generates significant revenues from these sales.\n \n \n 18\n As already indicated, there are no Oklahoma cases on point. The four cases from other jurisdictions are evenly split on flatly contradictory reasoning. Two of these jurisdictions, in the absence of a definition of \"business\" in the policy at issue, construed the term narrowly in favor of the insured. See Newell-Blais Post No. 443, VFW, Inc. v. Shelby Mut. Ins. Co., 396 Mass. 633, 487 N.E.2d 1371, 1373 (1986) (\"business\" not defined in policy and therefore given ordinary and usual meaning, in favor of nonprofit insured); American Legion Post No. 49 v. Jefferson Ins. Co., 125 N.H. 758, 485 A.2d 293, 294 (1984) (\"in the business\" ambiguous and therefore given ordinary, narrow meaning, in favor of nonprofit insured; following Laconia Rod & Gun Club v. Hartford Accident & Indem. Co., 123 N.H. 179, 459 A.2d 249, 251 (1983)).\n \n \n 19\n The other two jurisdictions find \"in the business\" to unambiguously include a nonprofit organization if its permanent, ongoing liquor sales generate significant revenues and are regulated like a business. See Fraternal Order of Eagles, Cle Elum, Aerie No. 649 v. General Accident Ins. Co., 58 Wash.App. 243, 792 P.2d 178, 182-83 (1990) (\"business\" not ambiguous and fraternal organization with permanent, ongoing liquor sales falls within term); McGriff ex rel. Norwest Capital Management & Trust Co. v. United States Fire Ins. Co., 436 N.W.2d 859, 862-63 (S.D.1989) (\"business\" unambiguously means commercial activity without regard to nonprofit character of organization).\n \n \n 20\n The courts in Newell-Blais and Legion No. 49 used similar reasoning and reached the same result. The Newell-Blais court determined that \"business,\" since it was not defined in the policy, would be given its ordinary meaning--\"an activity engaged in for the purpose of gain or profit.\" See Newell-Blais, 487 N.E.2d at 1373. Since the nonprofit organization was organized for charitable purposes, not for profit, it was not clearly \"in the business\" of selling liquor and therefore the policy exclusion did not apply. Id.\n \n \n 21\n The Legion No. 49 court found \"business\" to be ambiguous, meaning either an activity with a direct profit motive, or merely a regular activity occupying time and attention. See Legion No. 49, 485 A.2d at 294. Since the term was ambiguous, then although the activity of selling liquor made money, the character of the organization as nonprofit led the court to construe the term narrowly, in favor of the insured. See id. at 294-95. A nonprofit organization does not have a direct profit motive like a commercial venture, and therefore the policy exclusion did not clearly apply to the nonprofit insured. See id. at 295.\n \n \n 22\n The courts in Eagles and McGriff reached the opposite result. The McGriff court found \"in the business\" to unambiguously mean a commercial activity, and therefore the nonprofit character of the organization did not control. See McGriff, 436 N.W.2d at 862-63. The court's view was reinforced by the facts before it: the bar generated large profits, virtually all of the money went to member benefits and operations and almost none went to charity, the bar was the organization's single largest source of revenue, nonmembers were allowed, and the organization had a liquor license and paid taxes on the bar operations. See id. The court had no difficulty concluding that the nonprofit organization was an \"organization engaged in the business of ... selling or serving alcoholic beverages,\" because the activity is what was targeted by the policy exclusion. Id. at 861, 863.\n \n \n 23\n The Eagles court took a similar approach, specifically distinguishing between \"permanent, ongoing liquor sales operations\" by an insured, whether a profit-making tavern or a nonprofit organization, and \"occasional events\" where an insured sells or serves liquor. Eagles, 792 P.2d at 182-83. The court read the exclusionary language as targeting the activity of selling liquor, and so the nonprofit character of the organization did not control. Id. at 183. The court rejected the insured's arguments that went to the character of the organization--that its liquor license was limited and it was a private club--and pointed out that state tort liability for furnishing alcohol extended to quasi-commercial as well as commercial hosts. Id.\n \n \n 24\n We believe the reasoning of Eagles and McGriff is more consistent with Oklahoma law than that of Newell-Blais and Legion No. 49, and that the Oklahoma courts, if presented with the question, would hold that the exclusionary language \"in the business of ... selling [or] serving alcoholic beverages\" in Grain Dealer's policy with American Legion # 182 unambiguously includes nonprofit organizations with ongoing liquor sales operations. Although Appellants contend that Oklahoma makes a meaningful distinction between nonprofit and for-profit organizations under the Oklahoma Alcoholic Beverage Control Act, Okla.Stat. tit. 37, §§ 501-599 (1991), we are unpersuaded. Appellants point out that American Legion # 182, as a federal tax-exempt organization, pays less for its mixed beverage liquor license than does a for-profit business. See Okla.Stat. tit. 37, § 518. It appears to us, however, that there is no other exception for nonprofit organizations to any regulation in the Act. For example, nonprofit organizations are subject to city and county occupation taxes to the same extent as for-profit businesses. See Okla.Stat. tit. 37, §§ 554.1, 554.2. And nonprofit organizations, like for-profit businesses, are required to obtain a mixed beverage tax permit. See Okla.Stat. tit. 37, § 577. This permit is issued for places of business and is only issued upon verification that the applicant holds a sales tax permit and guarantees payment of gross receipts taxes. See id. The phrases \"engaged in a business\" and \"place of business\" are used throughout this section. See id. The language of this section alone indicates that Oklahoma considers nonprofit organizations selling liquor to be \"in the business\" of selling or serving alcoholic beverages.\n \n \n 25\n In addition, under Oklahoma law, liability for furnishing alcohol extends to any \"commercial vendor who sells alcoholic beverages for on the premises consumption.\" See Brigance v. Velvet Dove Restaurant, Inc., 725 P.2d 300, 304 (Okla.1986). Although Oklahoma has not yet specifically considered a nonprofit organization defendant,3 the \"commercial vendor who sells alcoholic beverages\" language of Brigance clearly seems broad enough to include such a defendant.4 We note in this regard that American Legion # 182 has a commercial liability insurance policy. See Brief in Chief, Attachment \"Commercial General Liability Coverage Form.\"\n \n \n 26\n In summary, we believe that were the Oklahoma courts to consider the question, they would hold that the exclusionary language \"in the business of ... selling [or] serving alcoholic beverages\" in Grain Dealer's policy with American Legion # 182 unambiguously applies to American Legion # 182's ongoing liquor sales operations.\n \n III\n \n 27\n Appellants next argue that uninsured motorist coverage can be \"stacked\" under Oklahoma law and that they, on behalf of Mrs. Frunk, are entitled to \"stack\" the uninsured motorist coverage for all 8,000-plus vehicles covered under the \"clear and cogent\" language of Premark's fleet policy with Aetna. We agree with the first proposition, but not the second one.\n \n \n 28\n \"As a court sitting in diversity, we must apply a state supreme court's most recent statement of state law.\" Southwest Forest Indus., Inc. v. Sutton, 868 F.2d 352, 354 (10th Cir.1989), cert. denied, 494 U.S. 1017, 110 S. Ct. 1320, 108 L. Ed. 2d 496 (1990). Oklahoma law provides that \"where an insured has paid [multiple] premiums for uninsured motorist insurance contained in a single policy covering [multiple] vehicles, the extent of uninsured motorist coverage is the aggregate limit of coverages corresponding to the number of separate uninsured motorist insurance premiums paid by the insured.\" Lake v. Wright, 657 P.2d 643, 644 (Okla.1982) (quoting Richardson v. Allstate Ins. Co., 619 P.2d 594, 598 (Okla.1980)). Oklahoma has further determined that uninsured motorist coverage can be aggregated, or \"stacked,\" in this manner in a fleet insurance policy when the injured claimant is a Class I insured, Aetna Casualty & Sur. Co. v. Craig, 771 P.2d 212, 214 (Okla.1989), and multiple premiums were paid for the several vehicles, Scott v. Cimarron Ins. Co., 774 P.2d 456, 458 (Okla.1989). \"ONLY Class I insureds may stack the uninsured motorist protection in a commercial fleet insurance policy.\" Aetna, 771 P.2d at 214.\n \n \n 29\n Premark's fleet policy covers more than 8,000 vehicles. Brief of Appellee Aetna Casualty & Sur. Co., at 4. Although the policy language clearly allows stacking, Premark paid a single premium of $100 for uninsured motorist coverage at the statutory minimum, $10,000 per person, for all of these vehicles. Id., Attachments A-1, A-3, A-5. The policy designates Premark as the named insured, id., Attachment A-1, and provides that authorized independent Tupperware distributors, such as Mrs. Frunk, are additional insureds, id., Attachment A-2.\n \n \n 30\n As an additional insured under the policy, Mrs. Frunk was a Class II insured under Oklahoma law and may not stack uninsured motorist coverage. Stanton v. American Mut. Liab. Ins. Co., 747 P.2d 945, 946-47 (Okla.1987). Even if she had been a Class I insured, however, common sense as well as state law indicate that stacking is unavailable when the purchaser chose to pay only one premium for limited coverage. See Scott, 774 P.2d at 458.\n \n \n 31\n Premark paid only a single premium of $100 for uninsured motorist coverage for all 8,000-plus vehicles in its fleet. Appellants may not stack this coverage. To hold otherwise would entitle Appellants to claim total coverage of more than $80,000,000 (8,000 X $10,000) for Premark's $100 premium--clearly an absurdity. See Stanton, 747 P.2d at 947.\n \n \n 32\n The judgment of the United States District Court for the Northern District of Oklahoma is AFFIRMED.\n \n \n \n **\n Honorable Clarence A. Brimmer, District Judge, United States District Court for the District of Wyoming, sitting by designation\n \n \n 1\n After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument\n \n \n 2\n Appellants suggest certifying these questions to the Oklahoma Supreme Court in their opening brief. Brief in Chief, at 23. This suggestion is insufficient. \"A request for certification must be made by separate motion, filed contemporaneously with the moving party's brief on the merits.\" 10th Cir.R. 27.1\n \n \n 3\n The Oklahoma Supreme Court declined to give Brigance retroactive effect, and so it affirmed the dismissals for failure to state a claim appealed in McClelland v. Harvie Kothe-Ed Rieman, Post No. 1201, VFW, Inc., 770 P.2d 569, 570 (Okla.1989), one of which involved a nonprofit organization defendant\n \n \n 4\n The open question in Oklahoma is whether liability for furnishing alcohol will be extended to social hosts. See Kellogg v. Ohler, 825 P.2d 1346, 1347, 1349 (Okla.1992) (there being no social hosts on the facts, question of extending \"dram shop\" liability must await another day)\n \n \n ", "ocr": false, "opinion_id": 595272 } ]	Third Circuit	Court of Appeals for the Third Circuit	F	USA, Federal
1,418,020	Hathaway, Howard, Richmond	1979-01-08	false	waqui-v-tanner-bros-contracting-co-inc	Waqui	Waqui v. Tanner Bros. Contracting Co., Inc.	Rosemarie T. WAQUI and John C. Waqui, Wife and Husband, and James W. Stevens, Surviving Spouse of Christine Stevens, Deceased, Appellants/Cross Appellees, v. TANNER BROTHERS CONTRACTING COMPANY, INC., Appellee/Cross Appellant	Miller, Pitt & Feldman, P. C., by Richard L. McAnally, John L. Tully, Tucson, for appellants/cross appellees., Lesher, Kimble & Rucker, P. C., by Darwin J. Nelson, Tucson, for appellee/cross appellant.	null	null	null	null	null	null	null	null	null	null	6	Published	null	<citation id="b367-28"> 589 P.2d 1355 </citation><br><parties id="b367-29"> Rosemarie T. WAQUI and John C. Waqui, wife and husband, and James W. Stevens, surviving spouse of Christine Stevens, Deceased, Appellants/Cross Appellees, v. TANNER BROTHERS CONTRACTING COMPANY, INC., Appellee/Cross Appellant. </parties><br><docketnumber id="b367-32"> No. 2 CA-CIV 2797. </docketnumber><br><court id="b367-33"> Court of Appeals of Arizona, Division 2. </court><br><decisiondate id="b367-34"> Jan. 8, 1979. </decisiondate><br><attorneys id="b368-15"> <span citation-index="1" class="star-pagination" label="324"> *324 </span> Miller, Pitt & Feldman, P. C., by Richard L. McAnally, John L. Tully, Tucson, for appellants/cross appellees. </attorneys><br><attorneys id="b368-16"> Lesher, Kimble & Rucker, P. C., by Darwin J. Nelson, Tucson, for appellee/cross appellant. </attorneys>	[ "589 P.2d 1355", "121 Ariz. 323" ]	[ { "author_str": "Richmond", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 6238, "opinion_text": "\n121 Ariz. 323 (1979)\n589 P.2d 1355\nRosemarie T. WAQUI and John C. Waqui, wife and husband, and James W. Stevens, surviving spouse of Christine Stevens, Deceased, Appellants/Cross Appellees,\nv.\nTANNER BROTHERS CONTRACTING COMPANY, INC., Appellee/Cross Appellant.\nNo. 2 CA-CIV 2797.\nCourt of Appeals of Arizona, Division 2.\nJanuary 8, 1979.\n324 Miller, Pitt & Feldman, P.C., by Richard L. McAnally, John L. Tully, Tucson, for appellants/cross appellees.\nLesher, Kimble & Rucker, P.C., by Darwin J. Nelson, Tucson, for appellee/cross appellant.\nOPINION\nRICHMOND, Chief Judge.\nThis is an action for damages for personal injuries sustained by plaintiff Rosemarie T. 325 Waqui and for the wrongful death of Christine Stevens. Following jury verdicts in favor of Mrs. Waqui and her husband in the sum of $75,000 and in favor of James W. Stevens, as surviving spouse of Christine, in the sum of $1,000, the plaintiffs moved for an additur or new trial on the sole issue of damages. The trial court denied the Waquis' motion but granted a new trial on damages to Stevens unless defendant agreed to an additur of $29,000. Defendant accepted the additur.\nThe Waquis have appealed from the judgment and denial of their motion. Stevens has appealed from the judgment and the order granting the additur, contending the trial court abused its discretion both in the inadequacy of the additur and in failing to order a new trial on damages. Defendant by cross-appeal challenges the assessment of costs and jury fees, arguing that it is the \"successful party\" under A.R.S. § 12-341[1] because the verdicts in each instance were less than the amounts received by the respective plaintiffs through settlements with third parties. We find no error entitling any of the parties to relief.\nAs to the Waquis' appeal, both sides rely on Creamer v. Troiano, 108 Ariz. 573, 503 P.2d 794 (1972), although reaching opposite conclusions. The Waquis acknowledge that on motion for an additur the greatest possible discretion is in the trial judge, but argue that under Creamer the ultimate test is justice, requiring reversal here. We do not find, however, that deference to the trial court's discretion in this case is incompatible with the quest for justice. The evidence established past and future special damages of approximately $41,000, and we are unable to say as a matter of law that $34,000 was inadequate to compensate for Mrs. Waqui's pain and residual disability, matters normally within the province of the jury. Meyer v. Ricklick, 99 Ariz. 355, 409 P.2d 280 (1965). As the court said in Creamer:\n* * * It is interesting to note that in every single one of these cases [on the subject of the size of jury verdicts] we affirmed the trial court's order. That in itself should carry a strong inference that one of the key factors in our decisions is to give the trial judge the benefit of the doubt. Like the jury, he has had the opportunity to observe the witnesses' demeanor on the stand, and his ruling on additur, remittitur, and new trial, because of an inadequate or excessive verdict, will generally be affirmed, because it will nearly always be more soundly based than ours can be.\n108 Ariz. at 575, 503 P.2d at 796.\nWhile the same reasoning disposes of the contention that the additur to the Stevens verdict was inadequate, Stevens also argues that a new trial was required by the trial court's minute order, which states in part:\nAs to the wrongful death action, the verdict was so inadequate as to shock the conscience of the Court. However, we are dealing with the death of a 60 year old woman, married, all of whose children had grown to adulthood and except for a twenty year old, were living away from the family home. There was no evidence of any financial loss resulting from the death of the decedent. The Court is of the opinion that an additur of $29,000.00 is warranted.\nFrom the foregoing Stevens concludes the trial court must have determined that the verdict was the result of passion or prejudice, requiring a new trial rather than an additur. Cf. Southern Pacific Company v. Tomlinson, 4 Ariz. 126, 33 P. 710 (1893). His motion for new trial was based solely on the ground of insufficient damages, 16 A.R.S. Rules of Civil Procedure, rule 59(a)5, and not that the verdict was the result of passion or prejudice, rule 59(a)7. He argues, however, that the finding that the verdict was so inadequate as to shock the 326 conscience of the court is synonymous with a finding that it was the result of passion or prejudice. We disagree.\nThe question of what relief is appropriate in cases dealing with inadequate or excessive verdicts has arisen recurrently since Southern Pacific Company v. Tomlinson, supra. In upholding a remittitur in that case the court said:\n * * Of course, if it is apparent to the trial court that the verdict was the result of passion or prejudice, a remittitur should not be allowed, but the verdict should be set aside. In passing upon this question the court should not look alone to the amount of the damages awarded, but to the whole case, to determine the existence of passion or prejudice, and to determine how far such passion or prejudice may have operated in influencing the finding of any verdict against the defendant. When the circumstances, as they may appear to the trial court, indicate that the jury deliberately disregarded the instructions of the court, or the facts of the case, a remittitur should not be allowed, but a new trial should be granted. * * * From a review of the whole case we cannot say that the jury, in finding for the plaintiff, in this action, in a sum largely in excess of the damages proven, deliberately disregarded the facts or the instructions of the court.\n4 Ariz. at 132-33, 33 P. at 711.\nThe rule requiring that the verdict be set aside rather than modified if it was the result of passion and prejudice is clear and easy to apply where there is an express finding to that effect by the trial court. See Flieger v. Reeb, 120 Ariz. 31, 583 P.2d 1351 (App. 1978). Confusion has arisen, however, from the language in appellate decisions where there had been no such determination. Some of the confusion may be traceable to the opinion in Stallcup v. Rathbun, 76 Ariz. 63, 258 P.2d 821 (1953), one of the cases on which Stevens relies. Ironically, the court in Stallcup first pointed out its earlier difficulty in dealing with the problem:\nIt would appear that this court inadvertently failed to properly differentiate between a verdict influenced by passion and prejudice and one that is merely excessive in the decisions rendered in: Standard Oil Co. v. Shields, 58 Ariz. 239, 119 P.2d 116; Jacob v. Miner, [67 Ariz. 109, 191 P.2d 734] supra; Alabam Freight Lines v. Thevenot (both majority and minority opinions), 68 Ariz. 260, 204 P.2d 1050; Horn v. Ruess, 72 Ariz. 132, 231 P.2d 756. 76 Ariz. at 66, 258 P.2d at 823.\nThe court then purported to distill the question, in order to decide whether it was error to deny a new trial on the filing of a remittitur:\nA flagrantly outrageous verdict was declared by this court in Standard Oil Co. v. Shields, supra, to be a fifth ground upon which to predicate a finding of passion and prejudice. But the yardstick to be applied in determining whether such a condition exists is found in the case of United Verde Copper Co. v. Wiley, 20 Ariz. 525, 183 P. 737, 738, wherein Justice Ross quoted the following rule laid down by Chancellor Kent in Coleman v. Southwick, 9 Johns. N.Y., 45, 6 Am.Dec. 253:\n\"* * * `The damages, therefore, must be so excessive as to strike mankind, at first blush, as being beyond all measure, unreasonable, and outrageous, and such as manifestly show the jury to have been actuated by passion, partiality, prejudice, or corruption. In short, the damages must be flagrantly outrageous and extravagant, or the court cannot undertake to draw the line, for they have no standard by which to ascertain the excess.'\"\nThe ultimate question presented, therefore, is whether the verdict rendered, as compared with legal damages shown is so unreasonable and outrageous as to shock the conscience of this court? * * \n76 Ariz. at 66, 258 P.2d at 824.\nThe yardstick the court selected, however, was taken from a case in which passion and prejudice were expressly excluded as the cause of the verdict. As Justice Ross noted in his preface to the quotation of the rule:\nThere is no claim that the verdict was rendered through prejudice or passion, 327 and there is nothing in the record to indicate that such was the case. That being so, we think the rule laid down by Chancellor KENT in Coleman v. Southwick 9 Johns. (N.Y.) 45, 6 Am.Dec. 253, is controlling. (Emphasis supplied.) United Verde Copper Co. v. Wiley, 20 Ariz. at 528, 183 P. at 738.\nWe believe the misplaced reliance in Stallcup on the rule adopted in United Verde disposes of the argument that the language in the former makes a verdict which shocks the court's conscience synonymous with one resulting from passion or prejudice. This court in State v. Watson, 7 Ariz. App. 81, 436 P.2d 175 (1967), relying in part on Stallcup, held an additur applicable (although inappropriate at the appellate level) where the verdict in a wrongful death case was shockingly small. The size of a verdict in a personal injury action is not alone sufficient evidence of passion or prejudice. Meyer v. Ricklick, supra.\nIn summary, although a verdict that is the result of passion or prejudice must shock the conscience of the court, the inverse is not necessarily true. That verdicts which are shockingly large or small may be the result of something other than passion or prejudice is implicit in the alternative grounds for new trial afforded by rule 59(a)5 and 7. As previously noted, Stevens did not urge passion or prejudice as the cause of the inadequate verdict in his motion for new trial. By ordering an additur as an alternative to a new trial on damages, the trial judge presumably rejected passion and prejudice as the cause of the verdict. Cf. Alires v. Southern Pacific Company, 100 Ariz. 6, 409 P.2d 714 (1966). His recital in the minute order of the evidence pertaining to damages must be construed under the circumstances as suggesting an evidentiary basis for the verdict he deemed insufficient. As in Tomlinson, supra, we cannot say that the jury deliberately disregarded the facts or the instructions of the court.\nFinally, Stevens argues that by its cross-appeal, defendant has revoked its acceptance of the additur under 16 A.R.S. Rules of Civil Procedure, rule 59(i)(2), which provides:\nIf a statement of acceptance is filed by the party adversely affected by reduction or increase of damages, and the other party thereafter perfects an appeal, the party filing such statement may nevertheless cross-appeal and the perfecting of a cross-appeal shall be deemed to revoke the consent to the decrease or increase in damages.\nThe rule obviously is intended to afford the accepting party an opportunity to challenge a remittitur or additur by cross-appeal, and has no application in this case, where the cross-appeal is not directed to the additur.\nDefendant's position on its cross-appeal is based on the fact that plaintiffs' counsel stipulated prior to trial \"that the Court has the right at the end of the trial to reduce the judgment which may be awarded to the Plaintiffs by the amounts of the settlement previously received.\" Inasmuch as those amounts total more than the verdicts, as modified by the Stevens additur, defendant contends it should have been awarded its costs. Although unquestionably \"successful\" in the sense that it has been relieved by the settlements from its obligation to satisfy any part of the judgments, defendant does not thereby qualify as the \"successful party\" within the intent of § 12-341. Cases involving offsetting claims, e.g., Trollope v. Koerner, 21 Ariz. App. 43, 515 P.2d 340 (1973), or offers of judgment under 16 A.R.S. Rules of Civil Procedure, rule 68, are inapposite. There was no offset or counterclaim, and the fact that the judgment against the defendant has been satisfied by others does not change the fact that the plaintiffs prevailed as the \"successful party\" in the case that was tried to jury verdicts and judgments in their favor.\nAffirmed.\nHOWARD and HATHAWAY, JJ., concur.\nNOTES\n[1] A.R.S. § 12-341:\n\nThe successful party to a civil action shall recover from his adversary all costs expended or incurred therein unless otherwise provided by law.\n\n", "ocr": false, "opinion_id": 1418020 } ]	Court of Appeals of Arizona	Court of Appeals of Arizona	SA	Arizona, AZ
825,105	null	2012-03-28	false	state-of-michigan-v-brandon-mcqueen	null	State of Michigan v. Brandon McQueen	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/20120328_S143824_74_143824_2012-03-28_or.pdf", "author_id": null, "opinion_text": "Order Michigan Supreme Court\n Lansing, Michigan\n\n March 28, 2012 Robert P. Young, Jr.,\n Chief Justice\n\n 143824 Michael F. Cavanagh\n Marilyn Kelly\n Stephen J. Markman\n Diane M. Hathaway\n Mary Beth Kelly\n STATE OF MICHIGAN, Brian K. Zahra,\n Plaintiff-Appellee, Justices\n\n v SC: 143824\n COA: 301951\n Isabella CC: 2010-008488-CZ\n BRANDON McQUEEN and MATTHEW\n TAYLOR, d/b/a COMPASSIONATE\n APOTHECARY, LLC,\n Defendants-Appellants.\n\n _________________________________________/\n\n\n On order of the Court, the application for leave to appeal the August 23, 2011\n judgment of the Court of Appeals is considered, and it is GRANTED. The parties shall\n include among the issues to be briefed whether the Michigan Medical Marihuana Act\n (MMMA), MCL 333.26421 et seq., permits patient-to-patient sales of marihuana.\n\n The Attorney General and the Michigan Association of Compassion Centers are\n invited to file briefs amicus curiae. Other persons or groups interested in the\n determination of the issues presented in this case may move the Court for permission to\n file briefs amicus curiae.\n\n\n\n\n I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the\n foregoing is a true and complete copy of the order entered at the direction of the Court.\n March 28, 2012 _________________________________________\n y0321 Clerk\n\f", "ocr": false, "opinion_id": 825105 } ]	Michigan Supreme Court	Michigan Supreme Court	S	Michigan, MI
72,630	Birch, Hill, Kravitch, Kravttch	1998-02-26	false	turlington-v-atlanta-gas-light-co	Turlington	Turlington v. Atlanta Gas Light Co.	Billy Joe TURLINGTON and Ellen Jocile Turlington, Plaintiffs-Appellants, v. ATLANTA GAS LIGHT COMPANY, Randy Curry, Robert Miller, Defendants-Appellees	David J. Worley, Jacobs & Slawsky, Atlanta, GA, for Plaintiffs-Appellants., John Lewis Sapp, Richard Read Gignilliat, William Drummond Deveney, Elarbee Thompson & Trapnell, Atlanta, GA, for Defendants-Appellees.	null	null	null	null	null	null	null	null	null	null	1	Published	null	<parties id="b1490-8"> Billy Joe TURLINGTON and Ellen Jocile Turlington, Plaintiffs-Appellants, v. ATLANTA GAS LIGHT COMPANY, Randy Curry, Robert Miller, Defendants-Appellees. </parties><br><docketnumber id="b1490-12"> No. 97-8071. </docketnumber><br><court id="b1490-13"> United States Court of Appeals, Eleventh Circuit. </court><br><decisiondate id="b1490-14"> Feb. 26, 1998. </decisiondate><br><attorneys id="b1492-18"> <span citation-index="1" class="star-pagination" label="1430"> *1430 </span> David J. Worley, Jacobs & Slawsky, Atlanta, GA, for Plaintiffs-Appellants. </attorneys><br><attorneys id="b1492-19"> John Lewis Sapp, Richard Read Gignilliat, William Drummond Deveney, Elarbee Thompson & Trapnell, Atlanta, GA, for Defendants-Appellees. </attorneys><br><judges id="b1492-21"> Before BIRCH, Circuit Judge, HILL and KRAVITCH, Senior Circuit Judges. </judges>	[ "135 F.3d 1428" ]	[ { "author_str": "Kravttch", "per_curiam": false, "type": "010combined", "page_count": 17, "download_url": "http://www.ca11.uscourts.gov/opinions/ops/19978071.MAN.pdf", "author_id": null, "opinion_text": " United States Court of Appeals,\n\n Eleventh Circuit.\n\n No. 97-8071.\n\n Billy Joe TURLINGTON and Ellen Jocile Turlington, Plaintiffs-Appellants,\n\n v.\n\n ATLANTA GAS LIGHT COMPANY, Randy Curry, Robert Miller, Defendants-Appellees.\n\n Feb. 26, 1998.\n\nAppeal from the United States District Court for the Northern District of Georgia. (No. 1:95-CV-\n1872-CC), Clarence Cooper, Judge.\n\nBefore BIRCH, Circuit Judge, HILL and KRAVITCH, Senior Circuit Judges.\n\n KRAVITCH, Senior Circuit Judge:\n\n This case raises two important issues regarding the Age Discrimination in Employment Act\n\nof 1967 (\"ADEA\"), 29 U.S.C. §§ 621-34: the timing requirements for filing discrimination charges\n\nwith the Equal Employment Opportunity Commission (\"EEOC\") and the standard for awarding\n\nattorney's fees to prevailing defendants.\n\n Plaintiffs-appellants Billy Joe Turlington (\"Turlington\") and his wife, Ellen Jocile Turlington\n\n(\"Mrs. Turlington\"), sued the Atlanta Gas Light Company (\"AGL\") and two AGL employees, Randy\n\nCurry and Robert Miller, alleging, inter alia, that AGL discriminated against Turlington on the basis\n\nof his age in violation of the ADEA. The district court granted summary judgment to AGL on this\n\nclaim and awarded attorney's fees to AGL.1 The Turlingtons appeal both rulings.\n\n We affirm the district court's grant of summary judgment to AGL, but we vacate the\n\nattorney's fees award and remand the case to the district court to decide whether the Turlingtons\n\n\n 1\n The Turlingtons' remaining claims were either abandoned at the summary judgment stage or\ndismissed by the district court.\n\flitigated in bad faith and to substantiate its determination with appropriate findings.\n\n I.\n\n Turlington was employed by AGL from May 1967 to March 1995. Initially, he worked in\n\nAGL's Information Systems Department (\"IS Department\"), where he rose to the position of\n\nSupervisor of Shift Operations. In February 1990, he was demoted to Class A Computer Operator\n\nfor failing to demonstrate job improvement during the prior year. Turlington presented evidence\n\nindicating that AGL, beginning in February 1990, denied him the same on-the-job training, practice\n\ntime, skill training, and software training that it provided to his younger co-workers. Although\n\nTurlington complained about the denial of training, his supervisors told him that he was incapable\n\nof learning new skills.2\n\n On July 9, 1993, having received four consecutive below-acceptable annual performance\n\nevaluations, Turlington was transferred to the Display Department, where he worked constructing\n\nsigns manually. In an effort to block the transfer, Turlington submitted a written protest, which was\n\nprepared by a lawyer. The attorney also wrote AGL's Chief Executive Officer stating that he was\n\nrepresenting Turlington \"for the discriminatory action taken against [Turlington] over the last\n\nseveral years culminating with his transfer.\"3 Turlington filed no discrimination charges with the\n\nEEOC at the time.\n\n\n\n 2\n Among the evidence presented by Turlington was the affidavit of Gary Boykin, an IS\nDepartment employee with responsibility for training. Boykin confirmed that Turlington did not\nreceive the same training as younger employees. Boykin also stated that Turlington's supervisor,\nEd Norwood, said \"that the younger employees were able to grasp the new technology faster and\nbetter than the older employees such as Mr. Turlington.\" Affidavit of Boykin at 4-5. According\nto Boykin, Turlington not only had the ability to learn but also used vacation time to develop his\ncomputer skills.\n 3\n Plaintiff's Ex. 6 at 1. This lawyer, Ted B. Herbert, was one of the lawyers representing\nTurlington in the district court proceedings in the instant case.\n\f A year later, Turlington was still working in the Display Department when he applied for a\n\nClass C Computer Operator position in the IS Department.4 On October 12, 1994, Dale Kilpatrick,\n\nmanager of the IS Department, informed Turlington that he would not be considered for the position\n\nbecause of his previous performance in the IS Department. Turlington was 54 years old at the time.\n\n On December 16, 1994, Turlington filed a discrimination charge with the EEOC alleging that\n\nAGL discriminated against him based on age by denying his application for the Class C Computer\n\nOperator position and subsequently hiring a 23-year-old man for that position.5 The accompanying\n\naffidavit stated that Turlington failed to obtain the job because his supervisors in the IS Department\n\ndid not provide the same technical training to Turlington as they did to his younger co-workers.\n\n On January 4, 1995,6 the staff of the Display Department was told that the Display\n\nDepartment would be downsized to a single Display Coordinator. Later that month the Display\n\nCoordinator position was posted, and Turlington and two other candidates applied. After interviews\n\nand evaluations, a three-person panel rated each applicant, and based on these ratings, one of\n\nTurlington's two competitors, a 44-year-old man, was selected for the position. On February 17,\n\n1995, Turlington amended his EEOC charge to incorporate his claim that AGL's failure to select him\n\nas Display Coordinator was discriminatory. Turlington's employment at AGL ended in March 1995.\n\n In July 1995, the plaintiffs filed suit in federal district court alleging that the defendants: (1)\n\ndiscriminated against Turlington on the basis of his age in violation of the ADEA; (2) retaliated\n\n\n\n 4\n The Class C Computer Operator position is ranked lower than the Class A Computer\nOperator position.\n 5\n In his brief, Turlington states that he filed his EEOC charge on October 12, 1994, but the\nrecord indicates otherwise.\n 6\n Not at issue in this appeal is the fact that Turlington decided not to choose early retirement,\nan option available to him from November 15, 1994, to January 3, 1995.\n\fagainst Turlington for filing an EEOC charge; (3) breached contractual obligations to Turlington\n\nin violation of Georgia law; (4) intentionally and/or negligently inflicted emotional distress upon\n\nTurlington in violation of Georgia law; and (5) caused Mrs. Turlington's loss of consortium under\n\nGeorgia law.\n\n Turlington's complaint alleged that AGL violated the ADEA in several ways, including: (1)\n\ndemoting him in February 1990; (2) failing to provide him adequate training from February 1990\n\nto July 1993, thus \"doom[ing][him] to poor performance\"7 and substandard evaluations; (3)\n\ntransferring him in July 1993; (4) refusing to hire him for the Class C Computer Operator position\n\nin October 1994; (5) refusing to hire him for the Display Coordinator position in 1995; and (6)\n\nthereafter discharging him.\n\n Defendants filed a motion for summary judgment, which included a request for reasonable\n\nattorney's fees. The district court dismissed plaintiffs' claims against defendants Curry and Miller;\n\ndeemed the retaliation, breach of contract, and emotional distress claims abandoned; dismissed the\n\nloss of consortium claim; granted summary judgment to AGL on the ADEA claim; and awarded\n\nattorney's fees and costs to AGL. Turlington appeals the district court's resolution of the ADEA\n\nclaim and the award of attorney's fees.\n\n On appeal, Turlington has narrowed significantly the basis of his ADEA allegations, arguing\n\nonly that AGL discriminated against him on the basis of age when it denied him the Class C\n\nComputer Operator position in October 1994. According to Turlington, that decision was\n\ndiscriminatory because it was based on Turlington's poor evaluations in the IS Department, which\n\nin turn resulted from AGL's discriminatory denial of training.\n\n II.\n\n\n 7\n Complaint at 6, ¶ 16.\n\f A.\n\n This court reviews de novo a district court's grant of summary judgment. We apply the same\n\nlegal standards that bound the district court and view all facts and any reasonable inferences\n\ntherefrom in the light most favorable to the non-moving party. See Hale v. Tallapoosa County, 50\n\nF.3d 1579, 1581 (11th Cir.1995). Summary judgment is appropriate only when \"there is no genuine\n\nissue of material fact and ... the moving party is entitled to judgment as a matter of law.\"\n\nFed.R.Civ.P. 56(c).\n\n Where, as here, a plaintiff attempts to use circumstantial evidence to establish unlawful\n\ndiscrimination under the ADEA, this court employs the following burden-shifting scheme. Initially,\n\nthe plaintiff must establish a prima facie case of discrimination. The employer then must respond\n\nwith a legitimate, nondiscriminatory reason for its actions. In order to prevail, the plaintiff must\n\nestablish that the employer's articulated legitimate, nondiscriminatory reason was a pretext to mask\n\nunlawful discrimination. See Walker v. NationsBank of Fla. N.A., 53 F.3d 1548, 1556 (11th\n\nCir.1995).\n\n In an ADEA case involving discharge, demotion, or failure to hire, a plaintiff may establish\n\na prima facie case by showing: (1) that he was a member of the protected group of persons between\n\nthe ages of forty and seventy; (2) that he was subject to adverse employment action; (3) that a\n\nsubstantially younger person filled the position that he sought or from which he was discharged;\n\nand (4) that he was qualified to do the job for which he was rejected. See O'Connor v. Consolidated\n\nCoin Caterers Corp., 517 U.S. 308, ----, 116 S.Ct. 1307, 1310, 134 L.Ed.2d 433 (1996) (stating that\n\nan ADEA plaintiff must show that he was replaced by someone \"substantially younger,\" not\n\nnecessarily by someone under age 40); Jameson v. Arrow Co., 75 F.3d 1528, 1531 (11th Cir.1996)\n\n(listing elements of prima facie case). We apply this prima facie standard to Turlington's claim that\n\fAGL discriminated by denying him the Class C Computer Operator position in 1994.\n\n Although a plaintiff's burden in proving a prima facie case is light, see Isenbergh v. Knight-\n\nRidder Newspaper Sales, Inc., 97 F.3d 436, 439 (11th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct.\n\n2511, 138 L.Ed.2d 1014 (1997), summary judgment against the plaintiff is appropriate if he fails to\n\nsatisfy any one of the elements of a prima facie case. For example, summary judgment is\n\nappropriate against a plaintiff who fails to demonstrate that he was qualified to perform the position\n\nfor which he was rejected. See Baker v. Sears, Roebuck & Co., 903 F.2d 1515, 1520-21 (11th\n\nCir.1990) (per curiam) (holding that terminated plaintiff failed to make out prima facie case under\n\nthe ADEA; ruling that she was not qualified given her consistent failure to meet employer's quota\n\nfor sale of maintenance agreements, a requirement of the position).\n\n B.\n\n In granting summary judgment to AGL on Turlington's ADEA claim, the district court held\n\nthat Turlington failed to establish a prima facie case. Citing Roberts v. Gadsden Mem'l Hosp., 835\n\nF.2d 793, 796 (11th Cir.), amended by 850 F.2d 1549 (1988), which addressed a Title VII claim\n\nrather than an ADEA claim, the district court stated that a plaintiff seeking to demonstrate a prima\n\nfacie case under the ADEA must demonstrate, inter alia, that \"a person outside of the plaintiff's class\n\nwith equal or lesser qualifications was promoted, or the employer continued to seek applicants after\n\nthe plaintiff was rejected for the position.\"8 Then, focusing on AGL's denial of the Display\n\nCoordinator position, the district court ruled that Turlington failed to establish a prima facie case\n\nbecause the three-person panel that rated the applicants deemed the successful candidate to be more\n\nqualified than Turlington.\n\n Moreover, according to the district court, Turlington could not establish a prima facie case\n\n\n 8\n Summary Judgment Order at 6.\n\fby arguing that he would have been as qualified as the successful candidate but for AGL's allegedly\n\ndiscriminatory training practices. The district court ruled that such practices could not be used to\n\nestablish a prima facie case because they ended in July 1993, prior to 180 days before Turlington\n\nfiled charges with the EEOC in December 1994. See 29 U.S.C. § 626(d)(1) (stating that an\n\nemployee claiming a violation of the ADEA must file charges with the EEOC not more than 180\n\ndays after the date of the allegedly unlawful practice).\n\n On appeal, Turlington argues that the district court erred in two ways: first, by addressing\n\nonly AGL's denial of the Display Coordinator position, not the denial of the Class C Computer\n\nOperator position, and second, by concluding that 29 U.S.C. § 626(d)(1) precluded Turlington from\n\nusing time-barred evidence to help establish a prima facie case. Abandoning all of his other\n\nallegations of ADEA violations, Turlington now argues only that he would have been qualified for\n\nthe Class C Computer Operator position absent AGL's discriminatory training practices from\n\nFebruary 1990 to July 1993.\n\n C.\n\n Although we disagree with some of the district court's analysis, we nonetheless affirm the\n\ndistrict court's grant of summary judgment to AGL on Turlington's ADEA claim.9 We note that a\n\nplaintiff seeking to establish a prima facie case under the ADEA must show only that he was\n\nqualified to do the job for which he was rejected, see Jameson v. Arrow Co., 75 F.3d 1528, 1531\n\n(11th Cir.1996), and, unlike a Title VII plaintiff, need not show that a person outside of the\n\nplaintiff's class with equal or lesser qualifications received the job, cf. Roberts v. Gadsden Mem'l\n\n\n 9\n We may affirm the district court's decision for reasons different than those stated by the\ndistrict court. See Sec. & Exch. Comm'n v. Chenery Corp., 318 U.S. 80, 88, 63 S.Ct. 454, 459,\n87 L.Ed. 626 (1943) (stating that the decision of the lower court must be affirmed if the result is\ncorrect even though the lower court relied upon a wrong ground or gave a wrong reason), cited\nin C.H. Robinson Co. v. Trust Co. Bank, N.A., 952 F.2d 1311, 1316 (11th Cir.1992).\n\fHosp., 835 F.2d 793, 796 (11th Cir.) (Title VII case), amended by 850 F.2d 1549 (1988). The\n\ndistrict court thus erred in ruling that Turlington, in establishing a prima facie case, had to show that\n\n\"a person outside of the plaintiff's class with equal or lesser qualifications was promoted, or [that]\n\nthe employer continued to seek applicants after the plaintiff was rejected for the position.\" Summary\n\nJudgment Order at 6 (emphasis added).10\n\n Because the district court primarily addressed AGL's denial of the Display Coordinator\n\nposition, the district court did not squarely determine whether AGL's denial of the Class C Computer\n\nOperator position was discriminatory. Upon reviewing this allegation, we hold that Turlington\n\nfailed to establish a prima facie case with regards to that adverse employment action. Turlington\n\ndoes not rebut the conclusion of Kilpatrick, the manager of the IS Department, who determined that,\n\nin light of Turlington's prior poor performance in the IS Department, Turlington was not qualified\n\neven to be considered for the Class C Computer Operator position. Because he was rejected so early\n\nin the decisionmaking process, Turlington has failed to demonstrate his qualifications for the job.\n\nCf. Isenbergh v. Knight-Ridder Newspaper Sales, Inc., 97 F.3d 436, 440 (11th Cir.1996) (\"[B]ecause\n\nthe decisionmakers for [the employer] were familiar with [the employee's] performance in his work\n\n... we can infer from the fact that he was granted an interview that [the employee] was at least at\n\nsome level qualified for the new job.\"), cert. denied, --- U.S. ----, 117 S.Ct. 2511, 138 L.Ed.2d 1014\n\n(1997). Even though the requirements of a prima facie case are light, see id. at 439, Turlington has\n\n\n\n 10\n The district court also erred by implying that an ADEA plaintiff could not make out a prima\nfacie case unless he were replaced by someone outside the protected age class. See O'Connor v.\nConsolidated Coin Caterers Corp., 517 U.S. 308, ----, 116 S.Ct. 1307, 1310, 134 L.Ed.2d 433\n(1996) (stating that an ADEA plaintiff must show that he was replaced by someone\n\"substantially younger,\" not necessarily by someone under age 40). Furthermore, the district\ncourt incorrectly stated that the question of whether \"the employer continued to seek applicants\nafter the plaintiff was rejected for the position\" is relevant in determining if an ADEA plaintiff\nhas established a prima facie case.\n\ffailed to meet this burden, see Baker v. Sears, Roebuck, & Co., 903 F.2d 1515, 1520-21 (11th\n\nCir.1990) (per curiam) (ruling that ADEA plaintiff was not qualified for her position and thus did\n\nnot establish a prima facie case).\n\n Turlington contends that he would have been qualified for the Class C Computer Operator\n\nposition if he had received better training, and thus better evaluations, while working as a Class A\n\nComputer Operator in the IS Department between February 1990 and July 1993. We hold, however,\n\nthat the district court correctly ruled that Turlington could not use time-barred evidence of allegedly\n\ndiscriminatory training practices in order to establish a prima facie case. Two Supreme Court cases,\n\nUnited Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977), and Del. State\n\nCollege v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980), support the district court's\n\nanalysis.11\n\n In Evans, the Court expressly precluded plaintiffs from using time-barred discriminatory acts\n\nto establish a prima facie case of employment discrimination. The plaintiff in Evans was forced to\n\nresign in 1968 when she married in violation of the company's policy of refusing to allow its female\n\nflight attendants to be married. 431 U.S. at 554, 97 S.Ct. at 1887. Although the plaintiff was rehired\n\nin 1972 after the policy was invalidated, she was not awarded seniority credit for her time off. Id.\n\nat 555, 97 S.Ct. at 1887. The Court held that the plaintiff could not attack the otherwise neutral\n\nseniority system merely by demonstrating that the system gave present effect to past discrimination.\n\n [A] discriminatory act which occurred before the statute was passed ... may constitute\n relevant background evidence in a proceeding in which the status of a current practice is at\n issue, but separately considered, it is merely an unfortunate event in history which has no\n present legal consequences.... [S]uch a challenge to a neutral system may not be predicated\n on the mere fact that a past event which has no present legal significance has affected the\n\n\n 11\n The ADEA 180-day limitations period, see 29 U.S.C. § 626(d)(1), is quite similar to the\nTitle VII limitations period, see 42 U.S.C. § 2000e-5(e)(1). Thus, although Evans and Ricks are\nTitle VII cases, they provide clear guidance in the instant ADEA case.\n\f calculation of seniority credit, even if the past event might at one time have justified a valid\n claim against the employer.\n\nId. at 558-60, 97 S.Ct. at 1889-90.\n\n In Ricks, the Court extended Evans and held that a plaintiff challenging a facially neutral\n\nemployment termination decision cannot establish a prima facie case of discrimination by\n\ndemonstrating that his termination gave effect to time-barred discriminatory acts.12 Explicitly\n\nrejecting the plaintiff's \"continuing violation\" theory, see 449 U.S. at 257-58, 101 S.Ct. at 504-05,\n\nthe Court stated:\n\n It is simply insufficient for [the employee] to allege that his termination gives present effect\n to the past illegal act and therefore perpetuates the consequences of forbidden\n discrimination. The emphasis is not upon the effects of earlier employment decisions;\n rather, it is upon whether any present violation exists.\n\nId. at 258, 101 S.Ct. at 504 (quoting Evans, 431 U.S. at 558, 97 S.Ct. at 1888) (internal quotations\n\nomitted) (emphasis in original).\n\n In light of Evans and Ricks, Turlington failed to establish a prima facie case of\n\ndiscrimination. Turlington alleges that AGL's denial of the Class C Computer Operator position in\n\nOctober 1994, although not discriminatory on its face, nonetheless violated the ADEA by giving\n\n\n\n\n 12\n The plaintiff in Ricks, after being denied tenure, received a one-year \"terminal\" contract.\n449 U.S. at 252-53, 101 S.Ct. at 501. He only filed charges with the EEOC, however, near the\nend of that contract. Id. at 254, 101 S.Ct. at 502. Because the denial of tenure occurred long\nbefore the filing of the EEOC charge, the Court held that the plaintiff's termination was facially\nneutral.\n\n [T]he only alleged discrimination occurred—and the filing limitations period\n therefore commenced—at the time the tenure decision was made and\n communicated to Ricks. That is so even though one of the effects of the denial of\n tenure—the eventual loss of a teaching position—did not occur until later....\n\n Id. at 258, 101 S.Ct. at 504 (footnote omitted) (emphasis in original).\n\feffect to past acts of discrimination that occurred from February 1990 to July 1993.13 Because\n\nplaintiffs may not use time-barred discriminatory acts to help establish a prima facie case of\n\ndiscrimination, see Evans, 431 U.S. at 558-60, 97 S.Ct. at 1889-90, evidence of AGL's prior training\n\npractices cannot render discriminatory AGL's facially neutral decision to deem Turlington\n\nunqualified for the Class C Computer Operator position, see Ricks, 449 U.S. at 258, 101 S.Ct. at\n\n504.14\n\n We also reject the application of equitable tolling to this case. ADEA's timing requirements\n\nmight have been equitably tolled if, in the period prior to the 180 days before filing the initial EEOC\n\ncharge, Turlington had no reason to believe he was a victim of unlawful discrimination. See Ross\n\nv. Buckeye Cellulose Corp., 980 F.2d 648, 660 (11th Cir.1993), cert. denied, 513 U.S. 814, 115 S.Ct.\n\n69, 130 L.Ed.2d 24 (1994).15 The evidence, however, indicates that Turlington, during his time as\n\n\n 13\n The district court correctly found that the allegedly discriminatory training practices ended\nin July 1993, more than 180 days before Turlington's initial EEOC filing in December 1994.\nAlthough the complaint does allege that Turlington was denied requests for computer training\nwhile in the Display Department, the complaint does not state that this denial of training was\ndiscriminatory.\n 14\n Recent precedent in this circuit supports our determination that Turlington failed to present\na \"continuing violation\" that would allow AGL's liability to be premised on time-barred acts.\nSee Calloway v. Partners Nat'l Health Plans, 986 F.2d 446, 448 (11th Cir.1993) (distinguishing\nbetween \"the present consequence of a one time violation, which does not extend the limitations\nperiod, and the continuation of the violation into the present, which does\") (quoting Beavers v.\nAm. Cast Iron Pipe Co., 975 F.2d 792, 796 (11th Cir.1992)). No continuing violation existed\nhere because AGL's allegedly discriminatory training practices ended prior to 180 days before\nTurlington filed charges with the EEOC. Cf. Reed v. Lockheed Aircraft Corp., 613 F.2d 757,\n760, 762 (9th Cir.1980) (applying continuing violations theory where allegedly discriminatory\npromotion, compensation, and training policies continued to exist during the 180-day time period\nprior to the filing of the EEOC charge).\n 15\n We need not address here all of the possible grounds for overlooking the ADEA's timing\nrequirements. Cf. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132,\n71 L.Ed.2d 234 (1982) (\"[F]iling a timely charge of discrimination with the EEOC is not a\njurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of\nlimitations, is subject to waiver, estoppel, and equitable tolling\").\n\fa Class A Computer Operator in the IS Department, protested vigorously against his failure to\n\nreceive the same training opportunities offered to his younger co-workers. Moreover, Turlington\n\nretained his district court counsel at least as of July 9, 1993, upon being transferred out of the IS\n\nDepartment. Under these circumstances, Turlington cannot rely on the theory of equitable tolling\n\nto preserve his right to hold AGL liable for discriminatory training practices.16 See McClinton v.\n\nAla. By-Products Corp., 743 F.2d 1483, 1487 (11th Cir.1984) (rejecting equitable tolling where\n\nADEA plaintiff \"suspects that he may have been discriminated against on account of age and is also\n\ngenerally aware of his legal right to obtain redress for that wrong\"). The ADEA's limitations period\n\nthus bars Turlington from establishing a prima facie case based on evidence of AGL's prior\n\ndiscrimination in training.\n\n D.\n\n Turlington cites several cases purporting to demonstrate that he may establish a prima facie\n\ncase with the help of time-barred evidence of AGL's discriminatory training practices. Turlington,\n\nhowever, fails to dispute the controlling authority of Evans and Ricks. Moreover, the cases he cites\n\n\n\n 16\n Turlington would have had an actionable claim under the ADEA for denial of training only\nif, after filing a charge of discrimination with the EEOC in a timely fashion, Turlington had\nestablished that AGL denied material training opportunities to him on the basis of age. As this\ncourt has held, the ADEA \"forbids far more than merely discriminatory discharge and hiring\npractices.\" See Stamey v. S. Bell Tel. & Tel. Co., 859 F.2d 855, 860 (11th Cir.1988), cert.\ndenied, 490 U.S. 1116, 109 S.Ct. 3178, 104 L.Ed.2d 1040 (1989). The ADEA makes it illegal\nfor employers \"to fail or refuse to hire or to discharge any individual or otherwise discriminate\nagainst any individual with respect to his compensation, terms, conditions, or privileges of\nemployment, because of such individual's age.\" 29 U.S.C. § 623(a)(1). Discrimination with\nrespect to training programs is thus actionable under the ADEA, see Kusak v. Ameritech Info.\nSys., Inc., 80 F.3d 199, 201 (7th Cir.1996) (\"An employer might offer training programs,\npromotion opportunities, or disability benefits to its employees, and the ADEA makes it clear\nthat the employer may not condition access to those benefits on the age of the employee.\"), as\nlong as the training is materially related to the employee's job responsibilities or possibilities for\nadvancement, cf. Crady v. Liberty Nat'l Bank & Trust Co. of Ind., 993 F.2d 132, 135-36 (7th\nCir.1993) (stating that ADEA plaintiff must allege \"materially adverse employment action\").\n\fare inapposite.\n\n For example, four cases merely hold that a plaintiff can use evidence of time-barred\n\ndiscriminatory conduct to meet his burden of persuasion in a case involving circumstantial evidence\n\nof discrimination. See Allen v. County of Montgomery, 788 F.2d 1485, 1488 (11th Cir.1986);\n\nDowney v. S. Natural Gas Co., 649 F.2d 302, 304-05 (5th Cir. Unit B June 1981); Fisher v. Procter\n\n& Gamble Mfg. Co., 613 F.2d 527, 540 (5th Cir.1980), cert. denied, 449 U.S. 1115, 101 S.Ct. 929,\n\n66 L.Ed.2d 845 (1981); Mathewson v. Nat'l Automatic Tool Co., Inc., 807 F.2d 87, 91 (7th\n\nCir.1986). In none of these cases did the court hold that a plaintiff could use evidence of\n\ntime-barred conduct to establish a prima facie case of discrimination. To the contrary, in Taylor v.\n\nHudson Pulp & Paper Corp., 788 F.2d 1455, 1461-62 (11th Cir.1986), cert. denied, 484 U.S. 953,\n\n108 S.Ct. 345, 98 L.Ed.2d 371 (1987), this court explicitly excluded time-barred conduct in\n\ndetermining that the plaintiff failed to establish a prima facie case of discrimination.\n\n Turlington also relies on three disparate impact cases that are not applicable here. See\n\nWalker v. Jefferson County Home, 726 F.2d 1554 (11th Cir.1984); Crawford v. Western Elec. Co.,\n\nInc., 614 F.2d 1300, 1314 (5th Cir.1980); Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d 241\n\n(5th Cir.1980). In Walker, the plaintiff sued for failing to be selected for an employment position\n\nin 1974. 726 F.2d at 1557. The court held that the employer's decision in 1974 was discriminatory,\n\nthough neutral on its face, because the decision was based on the plaintiff's lack of supervisory\n\nauthority, which in turn resulted from the employer's discriminatory decision in 1972 to deny the\n\nplaintiff a supervisory position. Id. at 1558. Recognizing that Evans, supra, would bar\n\nconsideration of the 1972 action in a disparate treatment case, the court deemed the 1972 action\n\nrelevant because Walker's claim could be characterized as one of disparate impact. Id. at 1557 &\n\nn. 1. Like Walker, Crawford and Gonzalez also involved disparate impact claims. See Crawford,\n\f614 F.2d at 1314-1318; Gonzalez, 610 F.2d at 244, 249.\n\n Turlington's claim, however, is not based on disparate impact.17 To demonstrate disparate\n\nimpact, a plaintiff must demonstrate that an employer's facially neutral practice or test had an\n\nadverse impact on a particular protected group. See Edwards v. Wallace Community College, 49\n\nF.3d 1517, 1520 (11th Cir.1995). Turlington does not allege that older workers as a class were\n\ndenied training, but only that he was denied training because of his age. Because Turlington's case\n\nrelies solely on a disparate treatment theory, Evans and Ricks preclude him from using time-barred\n\ndiscriminatory acts to establish a prima facie case of discrimination. We thus affirm the district\n\ncourt's grant of summary judgment against him.\n\n III.\n\n Finally, we address the question of whether the district court erred in awarding attorney's\n\nfees to AGL. After granting summary judgment to AGL, the district court issued a separate order\n\ngranting defendants reasonable attorney's fees and costs and dismissing the action. The district court\n\nmade no findings in support of this order.18 The Turlingtons argue that the district court abused its\n\n\n 17\n Because we rule that Turlington's claim did not incorporate a disparate impact theory, we\nneed not reach two additional issues: whether Walker is still valid law in light of Ross v.\nBuckeye Cellulose Corp., 980 F.2d 648 (11th Cir.1993) (rejecting disparate impact claim\nbecause freezing of compensation levels within 180 days of EEOC filing merely gave effect to\nprior discriminatory pay and progression system and did not constitute continuing\ndiscrimination), cert. denied, 513 U.S. 814, 115 S.Ct. 69, 130 L.Ed.2d 24 (1994), and whether\nthe ADEA permits disparate impact claims. Neither this court nor the Supreme Court expressly\nhas allowed disparate impact claims under the ADEA. See Hazen Paper Co. v. Biggins, 507\nU.S. 604, 610, 113 S.Ct. 1701, 1706, 123 L.Ed.2d 338 (1993) (reserving the issue). Compare\nDistrict Council 37 v. New York City Dep't of Parks and Recreation, 113 F.3d 347, 351 (2d\nCir.1997) (holding that disparate impact theory is cognizable under ADEA), with EEOC v.\nFrancis W. Parker Sch., 41 F.3d 1073, 1076-78 (7th Cir.1994) (suggesting that disparate impact\ntheory is not cognizable under ADEA), cert. denied, 515 U.S. 1142, 115 S.Ct. 2577, 132 L.Ed.2d\n828 (1995).\n 18\n Indeed, with the exception of a brief request for attorney's fees in defendants' motion for\nsummary judgment, the parties did not litigate the issue of attorney's fees before the district\n\fdiscretion by awarding attorney's fees to the prevailing defendants without having found that the\n\nTurlingtons litigated in bad faith.\n\n We review de novo the legal basis of a district court's decision to award attorney's fees to\n\nprevailing defendants. Cf. Kreager v. Solomon & Flanagan, P.A., 775 F.2d 1541, 1542-43 (11th\n\nCir.1985). This circuit has not determined the circumstances under which a prevailing defendant\n\nmay obtain attorney's fees in an ADEA case.\n\n The ADEA incorporates selected provisions of the Fair Labor Standards Act (\"FLSA\"),\n\nincluding those pertaining to attorney's fees. See 29 U.S.C. § 626(b) (stating that attorney's fees\n\nprovision of the FLSA, 29 U.S.C. § 216(b), applies to actions brought under the ADEA). Although\n\nthe attorney's fees provision of the FLSA does not address whether, or under what circumstances,\n\nattorney's fees should be awarded to a prevailing defendant, see 29 U.S.C. § 216(b), this court has\n\nheld that the FLSA entitles a prevailing defendant to attorney's fees only where the district court\n\nfinds that the plaintiff litigated in bad faith, see Kreager, 775 F.2d at 1542-43 (citing Alyeska\n\nPipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 258-59, 95 S.Ct. 1612, 1622, 44 L.Ed.2d 141\n\n(1975) (stating that courts have the \"inherent power\" to assess attorney's fees where a losing party\n\nhas \"acted in bad faith, vexatiously, wantonly, or for oppressive reasons\")). Given the close\n\nrelationship between the ADEA and the FLSA, see 29 U.S.C. § 626(b), we hold that a district court\n\nmay award attorney's fees to a prevailing ADEA defendant only upon a finding that the plaintiff\n\nlitigated in bad faith. Several other circuits have so ruled. See EEOC v. Hendrix College, 53 F.3d\n\n209, 211 (8th Cir.1995); EEOC v. O & G Spring & Wire Forms Specialty Co., 38 F.3d 872, 883\n\n(7th Cir.1994); Gray v. New England Tel. & Tel. Co., 792 F.2d 251, 260 & n. 1 (1st Cir.1986);\n\n\n\n\ncourt.\n\fMorgan v. Union Metal Mfg., 757 F.2d 792, 796 (6th Cir.1985).19\n\n Here, the district court made no findings whatsoever regarding the Turlingtons' bad faith in\n\nlitigating the case. On appeal, AGL points to several of the Turlingtons' litigation decisions as\n\nevidence of their bad faith. We believe, however, that an inquiry into a party's bad faith is best\n\nconducted by the district court.20 We thus vacate the attorney's fees award and remand the case to\n\nthe district court to decide whether the Turlingtons litigated in bad faith and to substantiate its\n\ndetermination with appropriate findings. See Kreager, 775 F.2d at 1543 (vacating and remanding\n\nwhere district court awarded attorney's fees to prevailing defendant in FLSA case without making\n\nspecific findings of bad faith).\n\n\n\n 19\n This rule differs significantly from the rule governing the award of attorney's fees to\nprevailing defendants in Title VII cases. Title VII, unlike the ADEA and the FLSA, explicitly\nauthorizes the award of attorney's fees to \"the prevailing party.\" See 42 U.S.C. § 2000e-5(k).\nThus, in Title VII cases, a district court \"may in its discretion award attorney's fees to a\nprevailing defendant ... upon a finding that the plaintiff's action was frivolous, unreasonable, or\nwithout foundation, even though not brought in subjective bad faith.\" Christiansburg Garment\nCo. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978).\n 20\n Relying on Head v. Medford, 62 F.3d 351 (11th Cir.1995), AGL contends that this court\nshould decide whether the Turlingtons litigated in bad faith. In Head, the district court granted\nsummary judgment to the defendants on the plaintiff's federal civil rights claims, but failed to\naward attorney's fees to the defendants. Id. at 353-55. A prevailing civil rights defendant is\nentitled to attorney's fees if the plaintiff's claim was \"frivolous, unreasonable, or without\nfoundation, even though not brought in subjective bad faith.\" Id. at 355 (citation omitted)\n(describing attorney's fees statute, 42 U.S.C. § 1988). The Head court held that the plaintiff's\nclaims were legally frivolous and that the defendants were entitled to attorney's fees \"unless the\ndistrict court points out special circumstances that justify making no award of fees.\" Id.\n\n This court's limited remand in Head, however, is not relevant here. In contrast to\n the defendants in Head, prevailing defendants in ADEA cases are entitled to attorney's\n fees only if the plaintiffs litigated in bad faith. We believe that the determination of bad\n faith is a complex inquiry that should be conducted initially by the district court, not an\n appellate court. See Roadway Express, Inc. v. Piper, 447 U.S. 752, 767, 100 S.Ct. 2455,\n 2465, 65 L.Ed.2d 488 (1980) (ruling that the district court erred in awarding attorney's\n fees to a prevailing defendant without making findings as to bad faith; directing that the\n case be returned to the district court to make appropriate findings).\n\fAFFIRMED IN PART. VACATED AND REMANDED IN PART.\n\f", "ocr": false, "opinion_id": 72630 } ]	Eleventh Circuit	Court of Appeals for the Eleventh Circuit	F	USA, Federal
1,194,448	Bernstein, Jennings, Lockwood, Struckmeyer, Udall	1964-06-10	false	beaman-v-aynes	Beaman	Beaman v. Aynes	James A. BEAMAN Et Al., Comprising the Employment Security Commission of Arizona, and Merritt-Chapman & Scott Corporation, Appellants, v. Raymond E. AYNES, Appellee	Robert W. Pickrell, Atty. Gen., by Richard J. Daniels and James S. Tegart, Asst. Attys. Gen., for appellant Commission., Shimmel, Hill, Kleindienst & Bishop, Phoenix, for employer, Merritt-Chapman & Scott Corporation., Minne & Sorenson, Phoenix, for appellee.	null	null	null	null	null	null	null	Rehearing Denied June 30, 1964.	null	null	3	Published	null	<citation id="b167-12"> 393 P.2d 152 </citation><br><parties id="b167-13"> James A. BEAMAN et al., comprising the Employment Security Commission of Arizona, and Merritt-Chapman & Scott Corporation, Appellants, v. Raymond E. AYNES, Appellee. </parties><br><docketnumber id="b167-16"> No. 7725. </docketnumber><br><court id="b167-17"> Supreme Court of Arizona. En Banc. </court><br><decisiondate id="b167-19"> June 10, 1964. </decisiondate><br><otherdate id="b167-20"> Rehearing Denied June 30, 1964. </otherdate><br><attorneys id="b168-9"> <span citation-index="1" class="star-pagination" label="146"> *146 </span> Robert W. Pickrell, Atty. Gen., by Richard J. Daniels and James S. Tegart, Asst. Attys. Gen., for appellant Commission. </attorneys><br><attorneys id="b168-10"> Shimmel, Hill, Kleindienst & Bishop, Phoenix, for employer, Merritt-Chapman & Scott Corporation. </attorneys><br><attorneys id="b168-11"> Minne & Sorenson, Phoenix, for appellee. </attorneys>	[ "393 P.2d 152", "96 Ariz. 145" ]	[ { "author_str": "Bernstein", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 3698, "opinion_text": "\n96 Ariz. 145 (1964)\n393 P.2d 152\nJames A. BEAMAN et al., comprising the Employment Security Commission of Arizona, and Merritt-Chapman & Scott Corporation, Appellants,\nv.\nRaymond E. AYNES, Appellee.\nNo. 7725.\nSupreme Court of Arizona. En Banc.\nJune 10, 1964.\nRehearing Denied June 30, 1964.\n146 Robert W. Pickrell, Atty. Gen., by Richard J. Daniels and James S. Tegart, Asst. Attys. Gen., for appellant Commission.\nShimmel, Hill, Kleindienst & Bishop, Phoenix, for employer, Merritt-Chapman & Scott Corporation.\nMinne & Sorenson, Phoenix, for appellee.\nBERNSTEIN, Justice.\nThis appeal is taken from a decision of the Superior Court reversing a final order of the Employment Security Commission of Arizona finding Raymond E. Aynes, claimant-appellee, disqualified for unemployment benefits under the Employment Security Act of Arizona. Hereinafter the parties will be referred to as the commission, claimant and the employer.\nThe claimant is a construction laborer and union member who worked for several weeks as a carpenters' helper at the Glen Canyon Dam for an employer who had entered into a collective bargaining agreement with claimant's union. Under the terms of this agreement the claimant working as a carpenters' helper was to be paid $3.215 per hour while doing such work, but $3.555 per hour while operating a jack hammer. If he operated a jack hammer less than four hours in one day he was to be paid at the higher rate for four hours and if he operated it more than four hours in any one day he was to be paid the higher rate for eight hours.\nThe record shows that for about four weeks claimant did both these types of work sporadically and was paid at the higher rate for the entire forty hour week. A new foreman took over his supervision and he was only paid at the higher rate for four 147 out of the next five days. When he complained to the foreman that he was entitled to the full five days at the higher rate because of the hours he worked on the jack hammer, he was told that it would be made up the next week, but it was not. The next week his check was short and he complained again, receiving the same answer. The third week when he got his pay check it was also short $2.72 so he again went to the foreman and was informed that not only was the employer not going to make up the shortage but in the future they intended to pay the higher rate only for the exact time, \"down to the minute,\" that he worked with a jack hammer. He then told the foreman that he was quitting because of the shortage in his pay, and in fact did quit.\nThere was no union steward on his shift so he did not report this disagreement to his union until he returned to Phoenix where his union local is located. His grievance was processed by the union and the employer subsequently paid $8.16, the amount his checks had been short the last three weeks.\nThe claimant filed his claim for unemployment compensation, the end result of which was that the commission held that he had voluntarily quit without good cause, and assessed the resultant disqualification and deduction of weekly benefit amount. On appeal to the Superior Court the commission's order was reversed and this appeal is taken by the commission.\nThe commission argues that because claimant is a member of the union and is working under the terms of a collective bargaining agreement which provides a procedure for the processing of grievances, he was bound to follow such procedure in this dispute. In finding he quit work without good cause the commission concluded this was true.\nBefore a claimant is entitled to benefits under the Unemployment Compensation Law it must first be shown that he is eligible for such compensation within the meaning of the Act. Beaman v. Safeway Stores, 78 Ariz. 195, 277 P.2d 1010. There is no question but what the claimant here is eligible and this point is not disputed. The only issue is whether the circumstances surrounding his termination are such as to make him disqualified from full benefits under A.R.S. § 23-775, Subsec. 1, which reads as follows:\n\"§ 23-775. Disqualification from benefits\n\"An individual shall be disqualified for benefits:\n\"1. For the week in which he has left work voluntarily without good cause in connection with his employment, if so found by the commission, and in addition to the waiting week, for the four weeks which immediately 148 follow such week, and his maximum benefit amount shall be reduced by an amount equivalent to four times his weekly benefit amount.\"\nThe claimant argues that he sustained a substantial reduction in earnings and that his employer failed to pay wages when due, citing this as \"good cause\" under the statute. He further argues that the amount of wages involved could be as high as $10 per week if the foreman's threat to pay the higher rate only for the exact time he operated a jack hammer were carried out.\nIn this appeal the claimant relies heavily on the decision in Bunny's Waffle Shop v. California Employment Commission, 24 Cal. 2d 735, 151 P.2d 224, in which case claimants were found to have quit for good cause when their wages were reduced twenty-five percent. The views expressed in that opinion are not applicable here because much more was involved in that case than a mere reduction in wages. A number of employers were trying to get the union to bargain with them collectively, and the particular employer involved imposed the wage reduction and other less favorable conditions of employment on his employees as a means of coercing the union to submit to the employer's demands. The court found that the employer was using these changes as an economic weapon to force union compliance with their demands which was tantamount to a lock-out.\nWe believe the cases of In re Anderson, 39 Wash.2d 356, 235 P.2d 303, and Hessler v. American Television and Radio Co., 258 Minn. 541, 104 N.W.2d 876, to be much more in point. In these cases the claimants quit there employment when faced with reduced wages and less favorable working conditions. Their terminations were held to be voluntary and without good cause thereby disqualifying them from unemployment benefits.\nWe have held claimants to be disqualified under A.R.S. § 23-775, Subsec. 1, supra, where they were union members working under a collective bargaining agreement which provided for all eligible employees to take two weeks vacation at a certain time. Beaman v. Bench, 75 Ariz. 345, 256 P.2d 721. The employer therefore ceased operations during this period and claimants were workers who had not been employed long enough to be eligible for such paid vacation. We held such unemployment to be voluntary as claimant's own union insisted upon this vacation arrangement and the claimants were deemed to have agreed to any shutdown compelled by the employer's contractual obligations under the collective bargaining agreement.\nWe were again confronted with this statutory provision in Employment Security Commission v. Magma Copper Company, 149 90 Ariz. 104, 366 P.2d 84, where the claimants were retired by the employer under the terms of a collective bargaining agreement which provided for such retirement. Our decision that those claimants were not disqualified was based, in part, upon the legislative purpose set forth in A.R.S. § 23-601, and the fact that if the collective bargaining agreement were construed as an agreement by claimants to become voluntarily unemployed upon reaching retirement age, it would be violative of A.R.S. § 23-784 which provides:\n\"No agreement by an individual to waive, release or commute his rights to benefits or any other rights under this chapter shall be valid.\"\nIt is to be noted that in the Magma Copper Company opinion, supra, we distinguished it from the Beaman v. Bench case, supra, partly on the basis that the latter involved only a vacation period which is commonly regarded as part of an employee's overall compensation.\nThe claimant, by and through his agent, the union, entered into a collective bargaining agreement with the employer. This agreement provided a grievance procedure for the settlement of disputes between the employer and the union or its individual members. The evidence here indicates that subsequent to his termination the claimant utilized the grievance procedure provided therein, and as a result, the employer paid him the $8.16 which he claimed was due. Beaman v. Bench, supra.\nThe claimant had agreed with the employer, by virtue of the collective bargaining agreement, to settle disputes in the manner provided in the union contract. He was not prohibited from attempting to settle the matter on an individual basis between himself and his foreman. The National Labor Relations Act, 29 U.S.C. § 159(a) specifically provides his right to do so. But when he was unable to solve the dispute through his own efforts he was bound to follow the grievance procedure provided in his agreement before taking any drastic action. He, of course, had a perfect right to terminate his employment as he did, but in order to qualify for unemployment benefits he must be unemployed through no fault of his own. Beaman v. Safeway Stores, supra, and Beaman v. Bench, supra. He is therefore disqualified under A.R.S. § 23-775, Subsec. 1. The fact that it may have required more effort to bring the matter to his union's attention, as there was no steward on his shift, is of no consequence.\nThe decision of the Employment Security Commission is supported by competent, material and substantial evidence, is not arbitrary or capricious and is not affected by error of law; therefore, it should have been affirmed. Accordingly, the judgment of the lower court is reversed *150 with instructions to enter judgment affirming the decision of the commission.\nUDALL, C.J., LOCKWOOD, V.C.J., and STRUCKMEYER and JENNINGS, JJ., concurring.\n", "ocr": false, "opinion_id": 1194448 } ]	Arizona Supreme Court	Arizona Supreme Court	S	Arizona, AZ
1,739,637	Barkdull, C.J., Haverfield, J., and Charles Carroll (Ret.), Associate Judge	1974-12-31	false	blackmon-v-blackmon	Blackmon	Blackmon v. Blackmon	null	null	null	null	null	null	null	null	null	null	null	null	6	Published	null	null	[ "307 So. 2d 887" ]	[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n307 So. 2d 887 (1974)\nFred Leonard BLACKMON, Appellant,\nv.\nCharlene M. BLACKMON, Appellee.\nNo. 74-1001.\nDistrict Court of Appeal of Florida, Third District.\nDecember 31, 1974.\nRehearing Denied February 25, 1975.\n888 Creel & Glasgow, Miami, for appellant.\nFrates, Floyd, Pearson, Stewart, Proenza & Richman, and Sherryll M. Dunaj, Miami, for appellee.\nBefore BARKDULL, C.J., HAVERFIELD, J., and CHARLES CARROLL (Ret.), Associate Judge.\nPER CURIAM.\nAppellant, respondent in the trial court, seeks review of a post judgment order which, in effect, denied the appellant's motion to modify the rehabilitative alimony provisions of a final judgment of dissolution of marriage.\nOn December 26, 1974, a final judgment of dissolution of marriage was entered by the trial court. In said final judgment, the following provision is found:\n * * * * \n\"5. The Court awards as rehabilitative alimony to be paid by the Respondent-Husband to the Petitioner-Wife the lump-sum alimony of Thirty Thousand ($30,000.00) Dollars to be paid on the basis of One Thousand ($1,000.00) Dollars per month for the next thirty (30) months commencing January 1, 1973.\"\n * * * * \nSubsequent thereto, the former wife remarried. Thereafter, the appellant filed a motion to modify the final judgment with respect to rehabilitative alimony to cease the payments of said alimony, it being stipulated that the wife's subsequent marriage was to a gentleman possessed of ample funds to support her. Upon the matter coming on to be heard before the trial court, he entered an order declining to modify the award as made in the final judgment. In said order, which is the subject matter of this review, the following is found:\n * * * * \n\"That Petitioner's right to receive lump-sum alimony in equal monthly installments became fixed and final under this Court's Final Decree of Divorce, and is not subject to termination upon the Petitioner's remarriage. That it was this Court's intention to award to the Petitioner lump-sum alimony in the amount of Thirty Thousand Dollars ($30,000.00) at the time of the entry of the Final Decree of Divorce, and the same was made payable in monthly installments only for the convenience of the Respondent.\"\n * * * * \nRehabilitative alimony is a term that is of recent vintage in Florida statutes, but it appears that the Florida courts have recognized the right of a trial court to modify rehabilitative alimony when the circumstances of the parties have changed. 889 Lockhart v. Lockhart, Fla.App. 1974, 293 So. 2d 754; Stamm v. Stamm, Fla.App. 1972, 266 So. 2d 413; Melin v. Melin, Fla. App. 1972, 265 So. 2d 414; § 61.14(1), Fla. Stat. We hold that the trial judge having denominated the sums to be paid initially in his final judgment of dissolution as rehabilitative alimony, he was without the power to change the tenor of the final judgment upon the petition to modify after the change in circumstances. Obviously, the provisions in the original final judgment are confusing, but he initially awarded rehabilitative alimony and we hold that he should not later be permitted to change the meaning of the award, notwithstanding the additional language which included the words \"lump sum\".\nTherefore, the order here under review be and the same is hereby reversed, with directions to grant the relief sought by the petitioner and cut off all rehabilitative alimony to the appellee subsequent to the date of her remarriage.\nReversed and remanded, with directions.\nBARKDULL, Chief Judge (dissenting).\nI respectfully dissent. The trial judge, at the time of the dissolution of the marriage, had the authority to award lump sum rehabilitative alimony. See: Kennedy v. Kennedy, Fla. 1974, 303 So. 2d 629 (1974); McRee v. McRee, Fla.App. 1972, 267 So. 2d 21. He had jurisdiction to entertain the motion to modify per the authorities in the majority opinion; this he declined to do, holding that in his original final judgment of dissolution he intended lump sum rehabilitative alimony.\nI would affirm the order under review. There is a substantial Federal tax difference in the treatment of a lump sum award payable in instalments if the periodic payments are for a period of ten years or less, as opposed to an award of periodic payments [be they rehabilitative or otherwise] for a fixed term of months. See: Am.Jur.2d, Federal Taxation (1975), § 7321.\n", "ocr": false, "opinion_id": 1739637 } ]	District Court of Appeal of Florida	District Court of Appeal of Florida	SA	Florida, FL
594,806	null	1992-10-16	false	kissel-v-dimartino	Kissel	Kissel v. Dimartino	null	null	null	null	null	null	null	null	null	null	null	null	0	Published	null	null	[ "979 F.2d 845" ]	[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/979/979.F2d.845.92-7364.html", "author_id": null, "opinion_text": "979 F.2d 845\n Kisselv.DiMartino\n NO. 92-7364United States Court of Appeals,Second Circuit.\n Oct 16, 1992\n \n 1\n Appeal From: E.D.N.Y.\n \n \n 2\n AFFIRMED.\n \n ", "ocr": false, "opinion_id": 594806 } ]	Second Circuit	Court of Appeals for the Second Circuit	F	USA, Federal
97,695	White	1912-12-02	false	deming-v-carlisle-packing-co	Deming	Deming v. Carlisle Packing Co.	Deming v. Carlisle Packing Company	Mr. Charles W. Dorr, Mr. A. B. Browne, Mr. S. M. Bruce and Mr. Hiram E. Hadley,, for defendant in error, in support of the motion., Mr. James A. Kerr and Mr. E. S. McCord, for plaintiff ' in error, in opposition thereto.	null	null	<p>Even though the record may present in form a Federal question the writ of error will be dismissed if it plainly appear that the Federal question is so unsubstantial and devoid of merit as to be frivolous.</p> <p>In this case the only Federal question was based on the refusal cf the state court to remove the cause as to the non-resident defendants on the ground of fraudulent joinder of the resident defendant and is frivolous as shown b3r the fact that the trial court refused to non-suit as to the resident defendant and there was a verdict against all.</p> <p>Where the case is not removable before trial, plaintiff has the right to have the issues of fact and law raised determined in the state court having jurisdiction, and the power of the state court to so determine cannot be destroyed by defendants’ claim that if the evidence had been rightly weighed the.decision would have been different.</p> <p>Where the state court has jurisdiction, the Federal court cannot deny the state court the right to exercise it.</p> <p>The unsubstantial and frivolous character of the only Federal question presented in this case embraces the conclusion that the writ was prosecuted for delay.</p> <p>The power which this court can exercise under one of its own rules depends upon the. statute on which the rule is based.</p> <p>Under Rule 23, which- is based on § 1010, Rev. Stat., this court has the same power to award damages for delay where the writ of error’is dismissed as where there is judgment of affirmance; and in this case five per cent, damages are imposed in addition to costs.</p>	null	ERROR TO THE SUPREME COURT OF THE STATE OF WASHINGTON. The facts, which involve the jurisdiction'of this court of writs of error to state courts, and the power of this court-to award damages for delay where the writ of error is dismissed, are- stated in the opinion.	null	<p>Writ of error to review, 62 Washington, 455, dismissed.</p>	Submitted November 4, 1912.	null	null	15	Published	null	<parties id="b140-7"> DEMING <em> v. </em> CARLISLE PACKING COMPANY. </parties><br><summary id="b140-8"> ERROR TO THE SUPREME COURT OF THE STATE OF WASHINGTON. </summary><br><docketnumber id="b140-9"> No. 511. </docketnumber><otherdate id="Ah5"> Submitted November 4, 1912. </otherdate><decisiondate id="ArD"> Decided December 2, 1912. </decisiondate><br><syllabus id="b140-10"> Even though the record may present in form a Federal question the writ of error will be dismissed if it plainly appear that the Federal question is so unsubstantial and devoid of merit as to be frivolous. </syllabus><br><syllabus id="b140-11"> In this case the only Federal question was based on the refusal cf <span citation-index="1" class="star-pagination" label="103"> *103 </span> the state court to remove the cause as to the non-resident defendants on the ground of fraudulent joinder of the resident defendant and is frivolous as shown b3r the fact that the trial court refused to non-suit as to the resident defendant and there was a verdict against all. </syllabus><syllabus id="Azb"> Where the case is not removable before trial, plaintiff has the right to have the issues of fact and law raised determined in the state court having jurisdiction, and the power of the state court to so determine cannot be destroyed by defendants’ claim that if the evidence had been rightly weighed the.decision would have been different. </syllabus><syllabus id="Ahd"> Where the state court has jurisdiction, the Federal court cannot deny the state court the right to exercise it. </syllabus><br><syllabus id="b141-4"> The unsubstantial and frivolous character of the only Federal question presented in this case embraces the conclusion that the writ was prosecuted for delay. </syllabus><br><syllabus id="b141-5"> The power which this court can exercise under one of its own rules depends upon the. statute on which the rule is based. </syllabus><br><syllabus id="b141-6"> Under Rule 23, which- is based on § 1010, Rev. Stat., this court has the same power to award damages for delay where the writ of error’is dismissed as where there is judgment of affirmance; and in this case five per cent, damages are imposed in addition to costs. </syllabus><br><history id="b141-7"> Writ of error to review, 62 Washington, 455, dismissed. </history><br><summary id="b141-8"> The facts, which involve the jurisdiction'of this court of writs of error to state courts, and the power of this court-to award damages for delay where the writ of error is dismissed, are- stated in the opinion. </summary><br><attorneys id="b141-9"> <em> Mr. Charles W. Dorr, Mr. A. B. Browne, Mr. S. M. Bruce </em> and <em> Mr. Hiram E. Hadley,, </em> for defendant in error, in support of the motion. </attorneys><br><attorneys id="b141-10"> <em> Mr. James A. Kerr </em> and <em> Mr. E. S. McCord, </em> for plaintiff ' in error, in opposition thereto. </attorneys>	[ "226 U.S. 102", "33 S. Ct. 80", "57 L. Ed. 140", "1912 U.S. LEXIS 2133" ]	[ { "author_str": "White", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 3448, "opinion_text": "\n226 U.S. 102 (1912)\nDEMING\nv.\nCARLISLE PACKING COMPANY.\nNo. 511.\nSupreme Court of United States.\nSubmitted November 4, 1912.\nDecided December 2, 1912.\nERROR TO THE SUPREME COURT OF THE STATE OF WASHINGTON.\n103 Mr. Charles W. Dorr, Mr. A.B. Browne, Mr. S.M. Bruce and Mr. Hiram E. Hadley, for defendant in error, in support of the motion.\nMr. James A. Kerr and Mr. E.S. McCord, for plaintiff in error, in opposition thereto.\nMR. CHIEF JUSTICE WHITE delivered the opinion of the court.\nThe Carlisle Packing Company, a corporation of the State of Washington, sued in a court of that State Deming and the two corporations who with him are the plaintiffs in error on this record. Deming was a citizen and resident of the State of Washington and the corporations were 104 alleged to be citizens of States other than Washington. The defendants were sued jointly for a violation by them of a contract alleged to have been jointly made for the purchase of salmon. There was a joint answer by the defendants putting at issue the material allegations of the complaint. There was a jury trial. When the Carlisle Company rested, motions for nonsuit were separately made on behalf of each of the defendants and overruled.\nAfter the defendants had offered their proof and the case was ripe for submission, the counsel for the two corporate defendants presented a petition and bond for the removal of the cause to the proper Federal court and asked that the bond be approved and further proceedings be stayed. The asserted right to remove proceeded upon the assumption that Deming had been fraudulently joined as a defendant for the purpose of preventing the two non-resident defendants from removing the case. This was supported by the contention that the proof as offered left no doubt that Deming had made the contract declared on merely as the agent of the two corporations and was therefore not personally bound. In denying the petition to remove, the trial judge directed attention to the fact that the motion made at the close of the plaintiff's proof for a nonsuit in favor of Deming had been denied because the court was of opinion that there was evidence to go to the jury on the question of the liability of that defendant and further observed that the situation in this respect had not been altered by the testimony introduced for the defendants. The cause was submitted to the jury upon instructions which, among other things, left it open to find against less than all of the defendants if the jury believed that the contract had not been made with all. There was a verdict for the plaintiff against all the defendants, and a judgment entered thereon was affirmed by the Supreme Court of the State. 62 Washington, 455. The appellate court, among other things, decided that no 105 error had been committed in overruling the motions for nonsuit and in denying the petition to remove, and in substance held that the plaintiff had the right to join Deming as a party defendant.\nThe prosecution of this writ of error is based upon the assumption that a Federal question was involved in the refusal to grant the petition for removal. In view, however, of the well settled and indeed now elementary doctrine that although a record may present in form a Federal question, a motion to dismiss will be allowed where it plainly appears that the Federal question is of such an unsubstantial character as to cause it to be devoid of all merit and therefore frivolous we think it is our duty to grant a motion to dismiss which has been here made. We reach this conclusion because the case was not a removable one when it was called for trial. Not being removable before trial, the plaintiff had the right to have the issues of fact and law raised determined in the state court which had jurisdiction over the cause. This power could not be destroyed by the mere act of the defendants, or one of them, in asking a removal based upon the assumption that if the evidence in the case was properly weighed and the legal principles applicable were correctly applied there would result a condition from which a right to remove would arise. On its face the assertion of such a right involved two propositions, whose unsubstantial character is made manifest by their mere statement: a. that the state court had jurisdiction over the cause, but had no right to exercise that jurisdiction; b. that a Federal court could endow itself with jurisdiction over a cause to which its authority did not extend by disregarding the pleadings and wrongfully assuming the right to revise the decision of the state court on matters of an absolutely non-federal character which that court had the right to decide. Nor is there force in the suggestion that the right to remove under the circumstances stated finds support in the ruling 106 in Powers v. Chesapeake & Ohio Ry. Co., 169 U.S. 92, since in that case a separable controversy on the face of the record arose at the opening of the trial consequent on the discontinuance by the plaintiff of his action as against the resident defendant whose joinder had up to that time made the action non-removable. The difference between that case, and the one here presented is apparent and at the time the petition for removal was presented and this writ of error was sued out had been pointed out in decisions of this court. Whitcomb v. Smithson, 175 U.S. 635; Alabama Southern Ry. v. Thompson, 200 U.S. 206, 217; Illinois Central R.R. Co. v. Sheegog, 215 U.S. 308.\nDismissing the writ of error, as we shall therefore do for the reasons stated, it remains to consider whether we should grant a prayer for damages for delay which has been made. That the unsubstantial and frivolous character of the only Federal question relied upon of necessity embraces the conclusion that the writ was prosecuted for delay is in our opinion indubitable. Does the power to award damages for delay exist where a writ of error is dismissed because of the unsubstantial and frivolous character of the asserted Federal right and the conclusive inference that the writ was prosecuted for mere delay which arises from sustaining such ground for dismissal? is then the question. That the comprehensive text of rule 23, embracing as it does \"all cases\" where a writ of error shall appear to have been sued out for mere delay, brings this case within its purview is obvious. But as the power which the rule expresses depends upon Rev. Stat., § 1010, we must consider the subject in the light of the statute. The power conferred is to impose damages for delay in cases \"where, upon a writ of error, judgment is affirmed in the Supreme Court. . .\"\nIt has been decided that where there was no power on a motion to dismiss to consider whether a case was prosecuted for delay only that a prayer for dismissal on such 107 ground could not be allowed and damages could not be awarded. Amory v. Amory, 91 U.S. 356. But the mere statement of the doctrine demonstrates that it rested upon the obvious proposition that a decree would not be made to embrace subjects which the court was not empowered to consider in determining whether the relief asked for should be awarded. This doctrine has no application here since by a line of cases announced subsequent to the decision in Amory v. Amory, it has come to be settled that on a motion to dismiss it is the duty of the court to consider whether an asserted Federal question is devoid of merit and unsubstantial either because concluded by previous authority or because of its absolutely frivolous nature, and if it is found to be of such character to allow a motion to dismiss. This being true as the conclusion that a writ of error has been prosecuted for delay is the inevitable result of a finding that it has been prosecuted upon a Federal ground which is unsubstantial and frivolous, it follows that the question of delay is involved in and requires to be considered in passing upon a motion to dismiss because of the frivolous character of the Federal question. The decisions of this court also leave it no longer open to discussion that where it is found that a Federal question upon which a writ of error is based is unsubstantial and frivolous the duty to affirm results.\nWe have then this situation, the finding that a particular ground that is, the frivolity of the Federal question exists indifferently justifies either a judgment of affirmance or an order of dismissal. Chanute City v. Trader, 132 U.S. 210; Richardson v. Louisville & N.R. Co., 169 U.S. 128; Blythe v. Hinckley, 180 U.S. 333, 338; New Orleans Water Works Company v. Louisiana, 185 U.S. 336, 345; Equitable Life Assurance Society v. Brown, 187 U.S. 308. The want of substantial difference between the two, as well as the rule which should determine the practice to be followed in awarding, in such a case, one or 108 the other, either affirmance or dismissal, was pointed out in the Equitable Case. Thus, the court said (187 U.S. 314):\n\"From the analysis just made, it results that although a Federal question was raised below in a formal manner, that question, when examined with reference to the averments of fact upon which it was made to depend, is one which has been so explicitly decided by this court as to foreclose further argument on the subject and hence to cause the Federal question relied upon to be devoid of any substantial foundation or merit. . . . It is likewise also apparent from the analysis previously made that even if the formal raising of a Federal question was alone considered on the motion to dismiss, and therefore the unsubstantial nature of the Federal question for the purposes of the motion to dismiss were to be put out of view, the judgment below would have to be affirmed. This follows, since it is plain that as the substantiality of the claim of Federal right is the matter upon which the merits depend, and that claim being without any substantial foundation, the motion to affirm would have to be granted under the rule announced in Chanute v. Trader, Richardson v. Louisville & N.R. Co. and Blythe v. Hinckley, supra. This being the case, it is obvious that on this record either the motion to dismiss must be allowed or the motion to affirm granted, and that the allowance of the one or the granting of the other as a practical question will have the like effect, to finally dispose of this controversy. . . . As this is a case governed by the principles controlling writs of error to state courts, it follows that the Federal question upon which the jurisdiction depends is also the identical question upon which the merits depend, and therefore the unsubstantiality of the Federal question for the purpose of the motion to dismiss and its unsubstantiality for the purpose of the motion to affirm are one and the same thing, that is, the two questions are therefore absolutely coterminous. Hence, 109 in reason, the denial of one of the motions necessarily involves the denial of the other, and hence also one of the motions cannot be allowed except upon a ground which also would justify the allowance of the other.\"\nStating that in such a case the determination whether a judgment of affirmance would be awarded or an order of dismissal be allowed involved nothing whatever of substance, but mere form of statement, as the two were the equivalent one of the other, it was observed that the better practice, where the question was not inherently Federal, was to adopt the form of allowing a motion to dismiss, the court, on the subject of the inherently Federal question, referring to Swafford v. Templeton, 185 U.S. 487, 493.\nThe enquiry then narrows itself to this: Does the power to award the damages for delay which the statute confers in cases of affirmance give the authority to exert the power where, in form, there is no judgment of affirmance but only an order of dismissal? To say that the duty to impose the statutory damage in such a case did not exist would require us to hold that things which were one and the same must be held to be different, and that the statute did not extend to and include that which in substance it embraced, because, by adhering blindly to mere form of words, the statute might be treated as not extending to an authority embraced within its spirit and purpose. No more cogent demonstration of the truth of this view could be given than by pointing out that if the proposition were not true it would follow that in no case could this court, without operating injustice, grant a motion to dismiss because of the frivolous and unsubstantial nature of the alleged Federal ground. This would be the case since if greater right would be conferred by affirming on such ground, the duty would arise to follow that practice instead of the practice of dismissing. Indeed, the subject is further aptly illustrated by directing attention to the fact that it is not questioned that the power here obtains 110 to direct the imposition of the penalty if the result of our conclusion that the Federal ground was frivolous be followed by an affirmance instead of an order of dismissal. Because of the absolute coincidence between a dismissal on account of the frivolous and unsubstantial character of the Federal question relied upon and an affirmance upon the same ground, we are of opinion that the statutory authority to impose the penalty obtains in either case. In stating the reasoning which has led us to this conclusion we have not been unmindful of, although we have not reviewed, a line of cases concerning the nature and extent of the power to impose costs in the case of a dismissal for want of jurisdiction. See Citizens' Bank v. Cannon, 164 U.S. 319, 323, and cases cited. We have not deemed it necessary to do so because nothing in the reasoning of those cases tends to affect the substantial identity which exists between a decree of dismissal and one of affirmance where the ground upon which one is placed equally justifies either form of decree.\nIn consequence of the conclusion which we have reached as above stated we direct the imposition of a penalty, in addition to interest, of five per cent. on the amount of the judgment recovered below and the taxation of costs as upon an affirmance.\nWrit of error dismissed with damages, etc.\n", "ocr": false, "opinion_id": 97695 } ]	Supreme Court	Supreme Court of the United States	F	USA, Federal
2,676,714	Per Curiam, Shedd, Thacker, Wynn	2014-06-02	false	in-re-jeffrey-pleasant-v	In Re: Jeffrey Pleasant v.	In Re: Jeffrey Pleasant v.	In Re: Jeffrey A. PLEASANT, A/K/A Jeffrey A. Pleasants, Petitioner	Jeffrey A. Pleasant, Petitioner pro se.	null	null	null	null	null	null	null	Submitted: May 29, 2014.	null	null	0	Unpublished	null	<parties id="b268-7"> In re: Jeffrey A. PLEASANT, a/k/a Jeffrey A. Pleasants, Petitioner. </parties><br><docketnumber id="b268-8"> No. 14-1325. </docketnumber><br><court id="b268-9"> United States Court of Appeals, Fourth Circuit. </court><br><otherdate id="b268-10"> Submitted: May 29, 2014. </otherdate><decisiondate id="Atq"> Decided: June 2, 2014. </decisiondate><br><attorneys id="b268-12"> Jeffrey A. Pleasant, Petitioner pro se. </attorneys><br><judges id="b268-13"> Before SHEDD, WYNN, and THACKER, Circuit Judges. </judges>	[ "574 F. App'x 242" ]	[ { "author_str": "Per Curiam", "per_curiam": false, "type": "010combined", "page_count": 3, "download_url": "http://pacer.ca4.uscourts.gov/opinion.pdf/141325.U.pdf", "author_id": null, "opinion_text": " UNPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 14-1325\n\n\n\nIn re: JEFFREY A. PLEASANT, a/k/a Jeffrey A. Pleasants,\n\n\n\n Petitioner.\n\n\n\n On Petition for Writ of Mandamus.\n (3:00-cr-00071-REP-1)\n\n\nSubmitted: May 29, 2014 Decided: June 2, 2014\n\n\nBefore SHEDD, WYNN, and THACKER, Circuit Judges.\n\n\nPetition denied by unpublished per curiam opinion.\n\n\nJeffrey A. Pleasant, Petitioner Pro Se.\n\n\nUnpublished opinions are not binding precedent in this circuit.\n\fPER CURIAM:\n\n Jeffrey A. Pleasant petitions for a writ of mandamus\n\nseeking an order compelling a state court to produce records of\n\ncertain proceedings and compelling the district court to vacate\n\nhis convictions and sentence. We conclude that Pleasant is not\n\nentitled to mandamus relief.\n\n Mandamus relief is a drastic remedy and should be used\n\nonly in extraordinary circumstances. Kerr v. United States\n\nDist. Court, 426 U.S. 394, 402 (1976); United States v.\n\nMoussaoui, 333 F.3d 509, 516-17 (4th Cir. 2003). Further,\n\nmandamus relief is available only when the petitioner has a\n\nclear right to the relief sought. In re First Fed. Sav. & Loan\n\nAss’n, 860 F.2d 135, 138 (4th Cir. 1988). Mandamus may not be\n\nused as a substitute for appeal. In re Lockheed Martin Corp.,\n\n503 F.3d 351, 353 (4th Cir. 2007). This court does not have\n\njurisdiction to grant mandamus relief against state officials,\n\nGurley v. Superior Court of Mecklenburg Cnty., 411 F.2d 586, 587\n\n(4th Cir. 1969), and does not have jurisdiction to review final\n\nstate court orders, Dist. of Columbia Court of Appeals v.\n\nFeldman, 460 U.S. 462, 482 (1983).\n\n The relief sought by Pleasant is not available by way\n\nof mandamus. Accordingly, although we grant leave to proceed in\n\nforma pauperis, and grant Pleasant’s motion to amend his\n\npetition, we deny the petition for writ of mandamus. We\n\n 2\n\fdispense with oral argument because the facts and legal\n\ncontentions are adequately presented in the materials before\n\nthis court and argument would not aid the decisional process.\n\n PETITION DENIED\n\n\n\n\n 3\n\f", "ocr": false, "opinion_id": 2676714 } ]	Fourth Circuit	Court of Appeals for the Fourth Circuit	F	USA, Federal
472,362	null	1986-04-29	false	united-states-v-panas	Panas	United States v. Panas	null	null	null	null	null	null	null	null	null	null	null	null	0	Published	null	null	[ "794 F.2d 679" ]	[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/794/794.F2d.679.85-2024.html", "author_id": null, "opinion_text": "794 F.2d 679\n U.S.v.Panas\n 85-2024\n United States Court of Appeals,Eighth Circuit.\n 4/29/86\n \n 1\n W.D.Mo.\n \n AFFIRMED\n ", "ocr": false, "opinion_id": 472362 } ]	Eighth Circuit	Court of Appeals for the Eighth Circuit	F	USA, Federal
2,360,638	null	2010-06-02	false	mcpeek-v-hubbard-museum	McPeek	McPeek v. HUBBARD MUSEUM	null	null	null	null	null	null	null	null	null	null	null	null	0	Published	null	null	[ "241 P.3d 181" ]	[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n241 P.3d 181 (2010)\n2010-NMCERT-006\nMcPEEK\nv.\nHUBBARD MUSEUM.\nNo. 32,339.\nSupreme Court of New Mexico.\nJune 2, 2010.\nWrit Granted.\n", "ocr": false, "opinion_id": 2360638 } ]	New Mexico Supreme Court	New Mexico Supreme Court	S	New Mexico, NM
599,458	null	1993-02-08	false	united-states-v-timothy-donell-heiligh	null	United States v. Timothy Donell Heiligh	null	null	null	null	null	null	null	null	null	null	null	null	0	Unpublished	null	null	[ "985 F.2d 554" ]	[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/985/985.F2d.554.92-5535.html", "author_id": null, "opinion_text": "985 F.2d 554\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.Timothy Donell HEILIGH, Defendant-Appellant.\n No. 92-5535.\n United States Court of Appeals,Fourth Circuit.\n Submitted: November 11, 1992Decided: February 8, 1993\n \n Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert D. Potter, District Judge. (CR-91-102)\n George V. Laughrun, II, GOODMAN, CARR, NIXON & LAUGHRUN, Charlotte, North Carolina, for Appellant.\n Thomas J. Ashcraft, United States Attorney, Patrice P. Lewis, Assistant United States Attorney, Charlotte, North Carolina, for Appellee.\n W.D.N.C.\n AFFIRMED.\n Before PHILLIPS, NIEMEYER, and HAMILTON, Circuit Judges.\n PER CURIAM:\n \n OPINION\n \n 1\n Timothy Donell Heiligh appeals from the final judgment entered by the district court following his conditional plea of guilty to federal drug and firearms charges. We affirm.\n \n \n 2\n Heiligh moved to suppress evidence taken from his car, arguing that the stop was pretextual. After a hearing, a magistrate judge recommended that Heiligh's motion to suppress evidence be denied, and the district court adopted the recommendation. Heiligh subsequently entered into a plea agreement which preserved his right to appeal the denial of the motion to suppress.\n \n \n 3\n In April 1991, Officer Hart of the Charlotte Police Department, while on routine patrol, observed Heiligh driving a car. Two other passengers were also riding in the vehicle. Though it was approximately 10:30 at night, with the illumination from his car's lights and surrounding street lights Hart observed that Heiligh was not wearing a seat belt. Hart activated his lights and Heiligh came to a stop. When asked for his driver's license Heiligh produced a North Carolina ID card because, he stated, he did not have his license. A record check conducted by Hart revealed that Heiligh's license had been revoked and that there was an outstanding warrant for his arrest.\n \n \n 4\n Hart returned to Heiligh's vehicle and placed him under arrest for driving with a revoked license and on the outstanding warrant. Heiligh then told Hart that there was an unloaded weapon in the car. Pursuant to the arrest, Hart conducted a search of the vehicle which revealed two firearms and crack cocaine.\n \n \n 5\n At the suppression hearing Officer Hart testified to the foregoing facts. In addition he testified that he was on routine patrol and was not conducting any sort of drug sweep or search for Heiligh. He stated that he routinely stops motorists for driving without seat belts, asks for their driver's licenses, and then issues them written or verbal warnings. Heiligh did not offer any evidence at the hearing. We find that the district court properly declined to suppress the evidence.\n \n \n 6\n Two tests have evolved for determining whether a stop is pretextual. Some courts hold that an investigative stop is proper if the officer is legally entitled to make the stop and the police are doing \"no more than they are legally permitted and objectively authorized to do.\" United States v. Trigg, 878 F.2d 1037, 1041 (7th Cir. 1989); accord United States v. Cummins, 920 F.2d 498, 500-01 (8th Cir. 1990), cert. denied, 60 U.S.L.W. 3358 (U.S. 1991); United States v. Causey, 834 F.2d 1179, 1184-85 (5th Cir. 1987) (en banc). Other courts hold that an investigative stop is valid as not pretextual not if the officer could legally have stopped the vehicle, but rather if a \"reasonable officer would have made the seizure in the absence of illegitimate motivation.\" United States v. Smith, 799 F.2d 704, 708 (11th Cir. 1986); accord United States v. Guzman, 864 F.2d 1512, 1517 (10th Cir. 1988). This Court has not expressly adopted either of these tests. See United States v. Rusher, 966 F.2d 868, 876 (4th Cir. 1992). We need not do so in the present appeal as under either test the stop was proper and the evidence seized during the stop was consequently admissible.\n \n \n 7\n Under the first test the stop of Heiligh was clearly permissible. In Rusher this Court held that a police officer stopping a vehicle for a violation of the North Carolina seat belt law is doing no more than he is objectively authorized and legally permitted to do. Rusher, 966 F.2d at 876.\n \n \n 8\n As for the second test, Hart's testimony that he regularly stopped motorists for violations of the seat belt law was uncontradicted. There was no evidence by Heiligh that other officers did not also do so. Once Hart stopped Heiligh for the seat belt violation, it was permissible for him to request Heiligh's driver's license and to run a computer check on it. Rusher, 966 F.2d at 876. The record check revealed that Heiligh was driving on a revoked license and that a warrant was outstanding for his arrest. Heiligh was properly arrested on these charges. As a result, the search of the vehicle was proper as being incident to the arrest. See New York v. Belton, 453 U.S. 454 (1981) (when police make valid arrest of occupant of vehicle, they may search passenger compartment and any containers within passenger compartment).\n \n \n 9\n Accordingly, we affirm the decision of the district court. 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 AFFIRMED\n ", "ocr": false, "opinion_id": 599458 } ]	Fourth Circuit	Court of Appeals for the Fourth Circuit	F	USA, Federal
541,694	null	1990-03-15	false	peters-karl-h-v-farm-credit-bank-of-st-paul	null	Peters (Karl H.) v. Farm Credit Bank of St. Paul	null	null	null	null	null	null	null	null	null	null	null	null	0	Published	null	null	[ "902 F.2d 1576" ]	[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/902/902.F2d.1576.89-5513.html", "author_id": null, "opinion_text": "902 F.2d 1576\n Peters (Karl H.)v.Farm Credit Bank of St. Paul\n NO. 89-5513\n United States Court of Appeals,Eighth Circuit.\n MAR 15, 1990\n \n 1\n Appeal From: D.Minn.\n \n \n 2\n AFFIRMED.\n \n ", "ocr": false, "opinion_id": 541694 } ]	Eighth Circuit	Court of Appeals for the Eighth Circuit	F	USA, Federal
429,634	Hoffman, Kennedy, Reinhardt	1984-01-31	false	karl-e-luedemann-v-hon-raymond-j-donovan-secretary-of-labor-united	null	Karl E. Luedemann v. Hon. Raymond J. Donovan, Secretary of Labor United States Dept. Of Labor	Karl E. LUEDEMANN, Petitioner, v. Hon. Raymond J. DONOVAN, Secretary of Labor United States Dept. of Labor, Respondent	Timothy P. Cissna, Eureka, Cal., David S. Krueger, Stokes, Steeves, Warren & Jensen, Areata, Cal., for petitioner., Samuel F. Wright, Helene Boetticher, Dennis A. Paquette (argued), Washington, D.C., for respondent.	null	null	null	null	null	null	null	Argued and Submitted Sept. 16, 1983.	null	null	1	Published	null	<parties id="b1449-6"> Karl E. LUEDEMANN, Petitioner, v. Hon. Raymond J. DONOVAN, Secretary of Labor United States Dept. of Labor, Respondent. </parties><br><docketnumber id="b1449-10"> No. 82-7735. </docketnumber><br><court id="b1449-11"> United States Court of Appeals, Ninth Circuit. </court><br><otherdate id="b1449-12"> Argued and Submitted Sept. 16, 1983. </otherdate><br><decisiondate id="b1449-13"> Decided Jan. 31, 1984. </decisiondate><br><attorneys id="b1450-6"> <span citation-index="1" class="star-pagination" label="1372"> 1372 </span> Timothy P. Cissna, Eureka, Cal., David S. Krueger, Stokes, Steeves, Warren & Jensen, Areata, Cal., for petitioner. </attorneys><br><attorneys id="b1450-7"> Samuel F. Wright, Helene Boetticher, Dennis A. Paquette (argued), Washington, D.C., for respondent. </attorneys><br><judges id="b1450-9"> Before KENNEDY, REINHARDT, Circuit Judges, and HOFFMAN, <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="b1450-13"> Honorable Walter Edward Hoffman, Senior United States District Judge for the Eastern District of Virginia, sitting by designation. </p> </div></div>	[ "724 F.2d 1371" ]	[ { "author_str": "Reinhardt", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/724/724.F2d.1371.82-7735.html", "author_id": null, "opinion_text": "724 F.2d 1371\n Karl E. LUEDEMANN, Petitioner,v.Hon. Raymond J. DONOVAN, Secretary of Labor United StatesDept. of Labor, Respondent.\n No. 82-7735.\n United States Court of Appeals,Ninth Circuit.\n Argued and Submitted Sept. 16, 1983.Decided Jan. 31, 1984.\n \n Timothy P. Cissna, Eureka, Cal., David S. Krueger, Stokes, Steeves, Warren & Jensen, Arcata, Cal., for petitioner.\n Samuel F. Wright, Helene Boetticher, Dennis A. Paquette (argued), Washington, D.C., for respondent.\n Petition to Review a Decision of the Assistant Secretary of Labor.\n Before KENNEDY, REINHARDT, Circuit Judges, and HOFFMAN,* District Judge.\n REINHARDT, Circuit Judge:\n \n \n 1\n Petitioner Karl E. Luedemann seeks review of a decision by the Assistant Secretary of Labor denying him weekly layoff benefits that are available to displaced \"long service\" lumber industry workers under Title II of the Redwood National Park Expansion Act (Redwood Act), Pub.L. No. 95-250, 92 Stat. 163 (1978).1 We hold that the Assistant Secretary applied incorrect standards in determining that petitioner was not eligible for the benefits and reverse his decision. In doing so, we reject his conclusions that petitioner was not an \"affected employee\" and not a \"long service employee.\"\n \n \n 2\n From May 25, 1976 until his layoff on December 17, 1980, petitioner was employed by Louisiana Pacific Corporation. After being laid off from his employment as a truck driver transporting redwood bark, Luedemann applied for weekly layoff benefits under Title II of the Redwood Act. Title II authorizes the payment of weekly layoff benefits to \"long service employees\" who worked for an \"affected employer\" and who are \"adversely affected\" by the Redwood National Park expansion. See Redwood Act Secs. 201(11), 208, 209. Because Louisiana Pacific Corporation was determined by the Secretary to be an affected employer under the Act, see 29 C.F.R. Sec. 92.8(b) (1983), its laid off employees are eligible for benefits, see Redwood Act Sec. 204. An Administrative Law Judge determined that the petitioner was eligible for weekly layoff benefits available to long service employees. The Assistant Secretary, however, reversed that decision. We review his actions under 16 U.S.C. Sec. 79 l (h) (1982).\n \n \n 3\n * Because the petitioner was laid off after October 1, 1980, he is eligible for Redwood Act benefits only if the Secretary determines that he was \"adversely affected\" by the park expansion. See Redwood Act Sec. 201(11).2 Under 29 C.F.R. Sec. 92.15(a)(3) (1983), an employee laid off after October 1, 1980 is an \"affected employee\" if he or she \"was laid off by an affected employer under circumstances related to the Park expansion.\"\n \n \n 4\n We have recently interpreted the same regulation. In David v. Donovan, 698 F.2d 1057, 1059 (9th Cir.1983), we rejected the Secretary's claim that the park expansion must be the \"primary cause\" of a layoff and held that \"a covered employee must establish only that his or her layoff was significantly related to the Park expansion to be eligible for Redwood Act benefits under\" 29 C.F.R. Sec. 92.15. (emphasis added). Here, the Assistant Secretary, as in David, required the petitioner to prove by a preponderance of evidence that the \"primary cause\" of his layoff was the park expansion. Instead, he should only have required the petitioner to establish that his layoff was \"significantly related\" to park expansion. Thus, the Assistant Secretary applied an incorrect, and overly restrictive, standard.\n \n \n 5\n In David, we \"set aside\" the Assistant Secretary's decision and \"reversed,\" holding that the petitioner was entitled to benefits under the \"significantly related\" standard. We did so on the basis of the Administrative Law Judge's finding that \"[t]here is no doubt that the claimant's layoff was related to the expansion of the park.\" Id. at 1059. Here, the Administrative Law Judge made an identical finding. The Secretary does not contend that petitioner fails to meet the David test. Accordingly, we hold that petitioner is an \"affected employee.\"\n \n II\n \n 6\n The Assistant Secretary also denied the petitioner the benefits he sought on the ground that he was not a \"long service employee.\" Long service employees are defined as employees who will reach age sixty before October 1, 1984, Redwood Act Sec. 209(a)(1), and who \"have service credit for pension purposes of at least five full years under a pension plan contributed to by industry employers,\" Redwood Act Sec. 209(a)(2).3\n \n \n 7\n The issue is whether petitioner met the requirements of section 209(a)(2). Petitioner contends that he qualifies for long service benefits because he worked the number of hours that is equivalent to five years of service under the statute. Section 201(16), in relevant part, provides that one month of continuous service is equal to the sum of all hours of \"performed work for said employer plus all hours for which the employee received pay for time not worked,\" divided by 173. Based on that formula, the petitioner has worked the equivalent of over sixty months, or over five years. See 29 C.F.R. Sec. 92.9(c) (1983). The Assistant Secretary denied the petitioner's claim because he had not accumulated five years of service credit for pension purposes, as the literal language of the statute required.\n \n \n 8\n Section 213(f) of the Redwood Act requires that:\n \n \n 9\n In all cases where two or more constructions of the language of this title would be reasonable, the Secretary shall adopt and apply that construction which is most favorable to employees. The Secretary shall avoid inequities adverse to employees that otherwise would arise from an unduly literal interpretation of the language of this title.\n \n \n 10\n In reviewing the Secretary's interpretation of section 209(a)(2), we must determine whether there are two or more reasonable interpretations of that section, and, if so, whether the Secretary has adopted the one most favorable to employees as a class. See, e.g., David v. Donovan, 698 F.2d 1057, 1058 (9th Cir.1983); Drapich v. Donovan, 693 F.2d 1296, 1298 n. 3 (9th Cir.1982); Lanning v. Marshall, 650 F.2d 1055, 1057-58 n. 4 (9th Cir.1981).\n \n \n 11\n In determining that a claimant was eligible for long service benefits, the Assistant Secretary previously has rejected a literal interpretation of section 209(a)(2). Read literally, that section would require an employee to accumulate five years of credit under a pension plan regardless of the amount of time actually worked. In In re William Puryear, SF-REPP-18402 (1979), the Assistant Secretary rejected the statutory pension credit requirement and instead looked solely to the formula based on hours worked that is set forth in section 201(16). In Puryear, after calculating the total hours worked, the Secretary concluded that the claimant had worked the equivalent of \"five full years\" of employment, even though he had not accumulated the pension credits called for by the statute. In reaching his decision the Assistant Secretary did not rely on the fact that the claimant had worked for five calendar years; rather, the Secretary based his decision solely on the fact that the employee had worked the requisite numbers of hours under section 201(16).\n \n \n 12\n Here, the Secretary conceded in oral argument that it is possible to satisfy the \"five full years\" requirement under section 209(a)(2) in less than five calendar years. Given that concession, we conclude that a test requiring only that the number of hours worked be equivalent to \"five full years\" under section 201(16) is a reasonable interpretation of section 209(a)(2) and is also one that is more favorable to employees as a class. We find no necessity under the statute for the employee to have performed the work over a period of five calendar years. We note that even under the literal language of the statute, requiring five full years of pension credits, there is no prohibition against accruing the necessary pension credits in a period of less than five calendar years. The only question would appear to be whether the particular pension plan permits such accrual. Our conclusion is buttressed by the fact that a contrary interpretation of section 209(a)(2) would deny benefits to an employee who had worked the same total number of hours as other employees who received benefits, simply because the other employees had spread their working hours over a slightly longer period of time.\n \n \n 13\n The Secretary apparently would apply the Puryear rule only to employees who were not covered by a pension plan and therefore did not earn pension credits during all or a part of the time they worked. Puryear protects such employees against discriminatory treatment. However, the failure to afford the benefits of Puryear to employees who were covered by pension plans would be equally discriminatory, since in some cases they would not qualify for long service benefits even though they performed the identical service that qualifying non-covered employees performed.\n \n \n 14\n Because petitioner worked the number of hours that under the statute is the equivalent to five years service, he qualifies for long service benefits and is eligible for weekly layoff benefits. Accordingly, we reverse the Assistant Secretary's decision on this issue as well.\n \n CONCLUSION\n \n 15\n We conclude that the petitioner is an affected employee and is eligible to receive weekly layoff benefits as a long service employee under section 209 of the Redwood Act. Therefore, the decision of the Assistant Secretary denying petitioner such benefits is\n \n \n 16\n REVERSED.\n \n \n \n *\n Honorable Walter Edward Hoffman, Senior United States District Judge for the Eastern District of Virginia, sitting by designation\n \n \n 1\n Title II of the Redwood Act is not codified\n \n \n 2\n Layoffs of employees by affected employers between May 31, 1977 and September 30, 1980 are conclusively presumed to have been caused by the park expansion. Redwood Act Sec. 203\n \n \n 3\n Conversely, short service employees are employees who will not reach age sixty before October 1, 1984, or who do not have five years of pension service credit at the time of their layoff. See Redwood Act Sec. 209(a)(1) and (2). While long service employees, who are laid off, are eligible to receive layoff benefits, see Redwood Act Secs. 204-208, short service employees who meet certain qualifications are only eligible to receive severance pay, see Redwood Act Sec. 209\n \n \n ", "ocr": false, "opinion_id": 429634 } ]	Ninth Circuit	Court of Appeals for the Ninth Circuit	F	USA, Federal
600,606	null	1993-02-25	false	united-states-v-ronald-craig-horr	null	United States v. Ronald Craig Horr	null	null	null	null	null	null	null	null	null	null	null	null	0	Unpublished	null	null	[ "986 F.2d 503" ]	[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/986/986.F2d.503.92-2236.html", "author_id": null, "opinion_text": "986 F.2d 503\n NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.UNITED STATES of AMERICA, Appellee,v.Ronald Craig HORR, Appellant.\n No. 92-2236.\n United States Court of Appeals,Eighth Circuit.\n Submitted: February 17, 1993.Filed: February 25, 1993.\n \n Before BOWMAN, WOLLMAN, and HANSEN, Circuit Judges.\n PER CURIAM.\n \n \n 1\n Ronald Craig Horr appeals the fifty-one-month and sixty-month consecutive sentences imposed on him by the District Court1 following his guilty pleas to armed robbery and use of a firearm during a robbery, in violation of 18 U.S.C. §§ 924(c)(1), 2113(a), (d) (1988). We affirm.\n \n \n 2\n On February 1, 1990, Horr was charged in the Eastern District of Missouri with bank robbery and with the use of a firearm during the robbery. During the pendency of those charges, he was sent to the Federal Medical Center (FMC) in Rochester, Minnesota, for a psychiatric examination. On May 24, 1990, while in custody at FMC, Horr attempted to escape. He was then charged with escape-related offenses in federal district court in Minnesota. In February 1991 (prior to disposition of the escape-related charges), the parties appeared in the District Court in Missouri for trial on the robbery and firearms charges. At that time, however, the government moved to dismiss the indictment without prejudice on the basis that a material witness was unavailable. Horr's attorney objected, arguing that the dismissal and likely transfer of Horr to Minnesota for disposition of the escape-related charges would probably result in an artificially enhanced punishment on the robbery and firearm charges if the government later reindicted him in the District Court in Missouri. The court overruled Horr's objection and dismissed the indictment without prejudice.\n \n \n 3\n Horr was then transferred back to Minnesota. He went to trial on the escape-related charges and was convicted on June 6, 1991. Because he had no prior convictions that would enhance his sentence, he was given a criminal history category of I. With an offense level of 25 and a criminal history category of I, the guidelines range was fifty-seven to seventy-one months. He was sentenced to concurrent terms of fifty-seven months. On July 11, 1991, the government reindicted Horr in Missouri on the robbery and firearm charges. Horr pleaded guilty to the charges. In regard to the robbery offense, the presentence report set his criminal history category at II based on his prior conviction on the escape-related charges in Minnesota. With an offense level of 21 and a criminal history category of II, the guidelines range was forty-one to fifty-one months. Horr was subject to a consecutive mandatory minimum sentence of sixty months for the firearm offense under 18 U.S.C. § 924(c)(1). At his sentencing hearing, Horr objected to the imposition of a criminal history category of II based on his prior conviction, but the District Court overruled his objection. The court sentenced Horr to consecutive prison terms of fifty-one months for the robbery offense and sixty months for the firearm offense. The court ordered the sentences to run consecutively to the fifty-seven-month sentence Horr was then serving for the escape-related offenses.\n \n \n 4\n Horr argues on appeal that his due process rights were violated by the enhancement of his criminal history category based on his conviction in the federal district court in Minnesota. Horr concedes that the government did not \"engineer\" the dismissal of the first indictment to obtain an enhanced sentence upon reindictment, but he argues that the enhancement of his sentence for reasons beyond his control was fundamentally unfair.\n \n \n 5\n A defendant may appeal from the sentence imposed by the District Court if it was imposed as a result of an incorrect application of the Guidelines or if it violated his due process rights. 18 U.S.C. § 3742(a) (1988). We conclude that Horr's criminal history category was properly determined under the Guidelines and that the District Court did not violate his due process rights in imposing his sentence.\n \n \n 6\n Under the guidelines, three criminal history points (resulting in a criminal history category of II) are imposed for \"each prior sentence of imprisonment exceeding one year and one month.\" United States Sentencing Commission, Guidelines Manual, § 4A1.1(a) (Nov. 1991). A \"prior sentence\" is \"any sentence previously imposed upon adjudication of guilt ... for conduct not part of the instant offense.\" Id. § 4A1.2(a)(1). The commentary to section 4A1.2 states that \"[a] sentence imposed after the defendant's commencement of the instant offense, but prior to sentencing on the instant offense, is a prior sentence if it was for conduct other than conduct that was part of the instant offense.\" Id. § 4A1.2, comment. (n.1). Horr's sentence for his attempted escape from FMC exceeded one year and one month, and it was imposed after Horr committed the robbery offenses but before sentencing on the robbery offenses. Horr does not argue that his attempt to escape was part of the robbery offenses.\n \n \n 7\n Although Horr raises a due process claim by challenging the government's actions in obtaining a dismissal without prejudice of the original indictment against him and in then reindicting him, see United States v. Meyer, 906 F.2d 1247, 1251 (8th Cir. 1990) (per curiam), his claim fails because he has not shown that the government's actions were improperly motivated and that they resulted in actual prejudice. See id. Horr was actually convicted of the robbery offenses and of the escape-related offenses, and he failed to show that he would have received a shorter period of incarceration overall if the original robbery indictment had not been dismissed. Also, Horr failed to show that the government's conduct was improperly motivated. He concedes that the government did not \"engineer\" the dismissal of the original indictment in an attempt to artificially enhance any sentence he would receive if he were convicted after reindictment.\n \n \n 8\n Accordingly, we affirm.\n \n \n \n 1\n The Honorable Jean C. Hamilton, United States District Judge for the Eastern District of Missouri\n \n \n ", "ocr": false, "opinion_id": 600606 } ]	Eighth Circuit	Court of Appeals for the Eighth Circuit	F	USA, Federal
223,717	Betty B. Fletcher, Kim McLane Wardlaw and Brett M. Kavanaugh	2011-08-22	false	united-states-v-parker	Parker	United States v. Parker	null	null	null	null	null	null	null	null	null	null	null	null	9	Published	null	null	[ "651 F.3d 1180" ]	[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 7, "download_url": "http://www.ca9.uscourts.gov/datastore/opinions/2011/08/22/10-50248.pdf", "author_id": 3371, "opinion_text": "\n651 F.3d 1180 (2011)\nUNITED STATES of America, Plaintiff-Appellee,\nv.\nHobert PARKER, Jr., Defendant-Appellant.\nNos. 10-50248 (Lead Case), 10-50250, 10-50251.\nUnited States Court of Appeals, Ninth Circuit.\nArgued and Submitted March 11, 2011.\nFiled August 22, 2011.\n1181 James H. Locklin, Assistant Federal Public Defender, Los Angeles, CA, for the defendant-appellant.\nMichael J. Raphael, Assistant U.S. Attorney, and Mark Remy Yohalem, Assistant U.S. Attorney, Los Angeles, CA, for the plaintiff-appellee.\nBefore: BETTY B. FLETCHER, KIM McLANE WARDLAW and BRETT M. KAVANAUGH,[] Circuit Judges.\n\nOPINION\nPER CURIAM:\nHobert Parker, Jr., appeals his misdemeanor convictions, after retrial, of three counts of violating 18 U.S.C. § 1382. He argues that his retrial violated the proscription against double jeopardy, that there was insufficient evidence to convict, and that his convictions violate his First Amendment rights. We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse.\nWe address the insufficiency of the evidence argument first. See Polar 1182 Shipping Ltd. v. Oriental Shipping Corp., 680 F.2d 627, 630 (9th Cir.1982) (courts should not pass upon a constitutional question if there is a nonconstitutional ground upon which the case may be decided). We review de novo the sufficiency of the evidence to support the conviction. United States v. Stanton, 501 F.3d 1093, 1099 (9th Cir.2007). There is sufficient evidence to support a conviction if, \"viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.\" Id.\nParker's charges arose from his protest activities on Ocean Avenue, which is a public road that crosses the Vandenberg Air Force Base (\"VAFB\") in Santa Barbara County, California. On each of the three occasions charged, Parker was carrying signs of protest against VAFB military police along the shoulder of Ocean Avenue. Each time, Parker was advised by military officers that he was not permitted to protest on Ocean Avenue and that the VAFB Commander had designated a protest area outside the VAFB Main Gate. Each time, Parker refused to leave or relocate. After the first two incidents, Parker was cited twice for violating section 1382 and the VAFB Commander issued a \"barment\" letter that barred Parker from entering VAFB for any reason for a period of three years. Several days later, Parker was cited for the third time.\nSection 1382 provides:\nWhoever, within the jurisdiction of the United States, goes upon any military, naval, or Coast Guard reservation, post, fort, arsenal, yard, station, or installation, for any purpose prohibited by law or lawful regulation; or\nWhoever reenters or is found within any such reservation, post, fort, arsenal, yard, station, or installation, after having been removed therefrom or ordered not to reenter by any officer or person in command or charge thereof \nShall be fined under this title or imprisoned not more than six months, or both.\n18 U.S.C. § 1382.[1]\nWe have interpreted section 1382 to require the government to prove its absolute ownership or exclusive right to the possession of the property upon which the violation occurred. See United States v. Vasarajs, 908 F.2d 443, 446-47 (9th Cir.1990) (the government must have control, in addition to \"absolute ownership, or an exclusive right to the possession\" of the property in question, to preserve the right to exclude others pursuant to section 1382); United States v. Mowat, 582 F.2d 1194, 1206 (9th Cir.1978) (accepting, in light of precedent, the parties' stipulation that the government \"was required to prove, as an element of the offense, absolute ownership or the exclusive right to the possession of the property upon which the violation occurred\"), cert. denied, 439 U.S. 967, 99 S.Ct. 458, 58 L.Ed.2d 426 (1978); United States v. Douglass, 579 F.2d 545, 547-48 (9th Cir.1978) (holding that \"[m]ere toleration of certain uses by the public designed for their convenience does not result in the loss of the right to exclusive use\" and that the requisite \"ownership and possession of the area to enable [the United States] to exclude the appellant\" had been established); United States v. Packard, 236 F.Supp. 585, 586 (N.D.Cal.1964) (holding that the government met its burden of establishing \"absolute ownership, or an exclusive right to the possession, of the road\"), aff'd, 339 F.2d 887 (9th Cir.1964) 1183 (affirming \"for the reasons stated in the opinion of the trial court.\").[2]\nThe government acknowledges our section 1382 authority, but challenges its precedential value. The government argues that the Mowat parties stipulated that section 1382 requires \"absolute ownership or exclusive right of possession,\" Mowat, 582 F.2d at 1206, and contends that subsequent cases merely assumed, without squarely deciding, the same.\nThe government is mistaken. While the parties in Mowat indeed stipulated that section 1382 requires that the government prove \"absolute ownership or exclusive right of possession,\" we did not blindly accept that stipulation, but did so in light of Ninth and Eighth Circuit precedent. See id. (citing Packard and Holdridge). Moreover, at the same time Mowat was decided, a different panel of this court independently held that section 1382 requires ownership or exclusive right of possession. See Douglass, 579 F.2d at 547-48 (citing Packard, United States v. Holmes, 414 F.Supp. 831 (D.Md.1976) and United States v. Watson, 80 F.Supp. 649 (E.D.Va. 1948)). Subsequent panels have also held so independently of Mowat. See Vasarajs, 908 F.2d at 446 (citing Holmes and Watson).\nThe government further argues that our cases left open the question of what kind of government control over an area within a military base is insufficient for a section 1382 prosecution, as they all upheld section 1382 convictions and did not, in fact, involve an easement. The lack of an easement, however, was an important part of the Vasarajs and Douglass panels' rationale in upholding the convictions. See Vasarajs, 908 F.2d at 446-47 (the government exercised actual control over area involved and defendant did not argue that either she or the public at large benefitted from an easement burdening the portion of roadway at issue, or that she or the public at large gained title to that portion of roadway through adverse possession or an implied dedication); Douglass, 579 F.2d at 547 (rejecting appellant's argument that the area at issue \"was not a part of the base because the United States did not have the requisite ownership and possession of the area to enable it to exclude the appellant\" where appellant has not challenged the title of the United States to the area, there was no easement residing in the public with respect to this area, arising either by grant or by reservation, nor was there a relinquishment of control over the area by the base personnel).\nIn conclusion, our circuit's requirement that the government prove absolute ownership or exclusive right of possession does not rest on the parties' unverified 1184 stipulation in one isolated case, but has been reaffirmed and applied by multiple panels in light of authority from this and other courts. We must therefore follow this precedent as the law of the circuit, the government's arguments that it is incorrect or imprudent notwithstanding. Only the en banc court can overturn a prior panel precedent. See Miranda B. v. Kitzhaber, 328 F.3d 1181, 1186 (9th Cir.2003) (per curiam) (\"[W]here a panel confronts an issue germane to the eventual resolution of the case, and resolves it after reasoned consideration in a published opinion, that ruling becomes the law of the circuit, regardless of whether doing so is necessary in some strict logical sense.\") (internal quotations omitted); Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir.2001) (\"Once a panel resolves an issue in a precedential opinion, the matter is deemed resolved, unless overruled by the court itself sitting en banc, or by the Supreme Court.... [A] later three-judge panel considering a case that is controlled by the rule announced in an earlier panel's opinion has no choice but to apply the earlier-adopted rule; it may not any more disregard the earlier panel's opinion than it may disregard a ruling of the Supreme Court.\").\nThe law of the circuit rule, of course, has an important exception: a panel may disagree with the circuit precedent when intervening Supreme Court decisions have undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable. Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.2003) (en banc). The government cites United States v. Albertini, 472 U.S. 675, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985), where the Supreme Court held that section 1382's bar against re-entry after a defendant had received a bar letter applies during an open house, as \"a person may not claim immunity from [the bar letter's] prohibition on entry merely because the military has temporarily opened a military facility to the public.\" 472 U.S. at 687, 105 S.Ct. 2897 (emphasis added). Albertini did not address the scenario where a military base or area thereof is permanently open to the public by virtue of a public easement. Albertini and the line of Ninth Circuit cases requiring absolute ownership or exclusive right of possession are therefore not irreconcilable. Cf. Vasarajs, 908 F.2d at 447 (holding that Albertini supports the view that the government \"must exercise control over its property in order to preserve the right to exclude others from it pursuant to § 1382\").\nIn this case, the evidence conclusively shows that Ocean Avenue had been established pursuant to a public road easement that the United States had initially granted to the State of California, which later relinquished it to the County of Santa Barbara. The road is subject to the concurrent jurisdiction of the County of Santa Barbara and VAFB, with the county exercising primary responsibility for the enforcement of criminal laws.\nIn all three incidents, Parker was within the physical limits of the public road easement corresponding to Ocean Avenue, a fact which the government does not challenge. Because the government does not have an exclusive right of possession over Ocean Avenue, under this court's precedent, Parker's presence and protest activities cannot constitute violations of section 1382.\nThe judgment of conviction is therefore VACATED.\nREVERSED.\nNOTES\n[] The Honorable Brett M. Kavanaugh, Circuit Judge for the District of Columbia Circuit, sitting by designation.\n[1] Parker was cited twice for violating the first paragraph of section 1382, and once after the VAFB Commander issued the bar letter for violating the second paragraph of section 1382. This distinction is irrelevant for the purposes of this appeal.\n[2] Our position is consistent with that of several other courts and the U.S. Attorney's Manual. See, e.g., United States v. Allen, 924 F.2d 29, 31 (2d Cir.1991) (\"[A] naval reservation includes (1) property owned by the United States Navy and (2) property over which the United States Navy exercises dominion and control and from which it may exclude the general public.\") (citing Mowat); Holdridge v. United States, 282 F.2d 302, 306-08 (8th Cir. 1960) (holding that \"exclusive possession of the premises in the government has been appropriately established\" where public use of roads traversing military base was extinguished in condemnation proceeding); U.S. Attorney's Manual, Title 9, Criminal Resource Manual § 1634 (2010) (citing Holdridge for the proposition that Section 1382 \"applies to any military, naval, or coast guard reservation, post, fort, arsenal, yard, station or installation over which the United States has exclusive possession.\"). But see United States v. McCoy, 866 F.2d 826, 830 n. 4 (6th Cir. 1989) (rejecting Mowat and holding that \"if proceedings under 18 U.S.C. § 1382 are comparable to trespass actions, centuries of legal history support the government's refusal to concede that anything more than a possessory interest had to be shown\").\n\n", "ocr": false, "opinion_id": 223717 } ]	Ninth Circuit	Court of Appeals for the Ninth Circuit	F	USA, Federal
2,474,924	Rebecca Beach Smith	2010-12-10	false	davis-v-old-dominion-tobacco-co-inc	Davis	Davis v. OLD DOMINION TOBACCO CO., INC.	James L. DAVIS, Plaintiff, v. OLD DOMINION TOBACCO COMPANY, INC., D/B/A Atlantic Dominion Distributors, Inc., and Robin D. Ray, Individually, and Old Dominion Tobacco Company, Inc. Deferred Compensation Agreement, and Old Dominion Tobacco Company, Inc. Board of Directors, Defendants; James L. Davis, Plaintiff, v. Old Dominion Tobacco Company, Inc., D/B/A Atlantic Dominion Distributors, Inc., Defendant	James Matthew Mundy, John Ignatius Paulson, Louis George Paulson, Paulson & Paulson PLC, Virginia Beach, VA, for Plaintiff., Mark Edward Warmbier, Scott William Kezman, Kaufman & Cañóles P.C., Norfolk, VA, for Defendants.	null	null	null	null	null	null	null	null	null	null	0	Published	null	<parties id="b722-6"> James L. DAVIS, Plaintiff, v. OLD DOMINION TOBACCO COMPANY, INC., d/b/a Atlantic Dominion Distributors, Inc., and Robin D. Ray, Individually, and Old Dominion Tobacco Company, Inc. Deferred Compensation Agreement, and Old Dominion Tobacco Company, Inc. Board of Directors, Defendants. James L. Davis, Plaintiff, v. Old Dominion Tobacco Company, Inc., d/b/a Atlantic Dominion Distributors, Inc., Defendant. </parties><br><docketnumber id="b722-10"> Civil Action Nos. 2:09cv603, 2:10cv130. </docketnumber><br><court id="b722-11"> United States District Court, E.D. Virginia, Norfolk Division. </court><br><decisiondate id="b722-14"> Dec. 10, 2010. </decisiondate><br><attorneys id="b726-3"> <span citation-index="1" class="star-pagination" label="686"> *686 </span> James Matthew Mundy, John Ignatius Paulson, Louis George Paulson, Paulson & Paulson PLC, Virginia Beach, VA, for Plaintiff. </attorneys><br><attorneys id="b726-4"> Mark Edward Warmbier, Scott William Kezman, Kaufman & Cañóles P.C., Norfolk, VA, for Defendants. </attorneys>	[ "755 F. Supp. 2d 682" ]	[ { "author_str": "Smith", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 3020, "opinion_text": "\n755 F. Supp. 2d 682 (2010)\nJames L. DAVIS, Plaintiff,\nv.\nOLD DOMINION TOBACCO COMPANY, INC., d/b/a Atlantic Dominion Distributors, Inc., and Robin D. Ray, Individually, and Old Dominion Tobacco Company, Inc. Deferred Compensation Agreement, and Old Dominion Tobacco Company, Inc. Board of Directors, Defendants.\nJames L. Davis, Plaintiff,\nv.\nOld Dominion Tobacco Company, Inc., d/b/a Atlantic Dominion Distributors, Inc., Defendant.\nCivil Action Nos. 2:09cv603, 2:10cv130.\nUnited States District Court, E.D. Virginia, Norfolk Division.\nDecember 10, 2010.\n686 James Matthew Mundy, John Ignatius Paulson, Louis George Paulson, Paulson & Paulson PLC, Virginia Beach, VA, for Plaintiff.\nMark Edward Warmbier, Scott William Kezman, Kaufman & Canoles P.C., Norfolk, VA, for Defendants.\n\nOPINION\nREBECCA BEACH SMITH, District Judge.\nThis action is before the court on the defendants' Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons stated below, the Motion for Summary Judgment is GRANTED.\n\nProcedural History\nThe plaintiff, James L. Davis, filed an Amended Complaint (\"Complaint\")[1] in the Circuit Court for the City of Virginia Beach, Virginia, alleging fraud, constructive fraud, and undue influence against the defendants, and breach of contract against Old Dominion Tobacco Company, Inc. (\"Old Dominion\"). On December 9, 2009, the defendants removed the plaintiffs causes of action to this court, pursuant to 28 U.S.C. § 1441(b), asserting that the plaintiffs breach of contract claim \"arises under\" a question of federal law, namely the Employee Retirement Income Security Act (\"ERISA\"). On February 26, 2010, the court found that the plaintiffs breach of contract claim, Count VI of the Complaint, was completely preempted by ERISA, and was, therefore, properly removed to this court. Additionally, the court found that the plaintiffs state law tort claims were properly removed to this court under this court's supplemental and pendent jurisdiction, pursuant to 28 U.S.C. §§ 1367(a) and 1441(c), respectively. On March 8, 2010, the court found that all the plaintiffs claims were completely preempted by ERISA, and granted the plaintiff leave to amend the Complaint so that he could clarify his claims under ERISA, and raise all claims, as appropriate, for any purported violations of ERISA's provisions.\nOn March 26, 2010, the plaintiff filed a Second Amended Complaint (\"Amended Complaint\"), stating causes of action under ERISA.[2] As in the Complaint, the plaintiff claims that his employer, defendant Old Dominion, fired him, at the behest of defendant Robin Ray (\"Ray\"), while he was disabled, in order to preclude him from collecting benefits purportedly due under an ERISA plan.[3] Accordingly, in Count I, the plaintiff seeks recovery of ERISA benefits, pursuant to 29 U.S.C. §§ 1132(a)(1)(B) and (3); in Count II, the plaintiff states a claim for interference with rights protected by ERISA, pursuant to 29 U.S.C. § 1140; and, in Count III, the plaintiff states a claim for breach of fiduciary duty, pursuant to 29 U.S.C. §§ 1104 and 1109. On March 25, 2010, the plaintiff filed, as a separate cause of action in this court, a complaint (\"ADEA/ADA Complaint\") stating causes of action arising under the Age Discrimination in Employment Act (\"ADEA\") and the American with Disabilities Act (\"ADA\").[4] In the 687 ADEA/ADA Complaint, the plaintiff alleges the same factual background as he alleges in the Amended Complaint. In Count I, he states a claim for discrimination in violation of the ADEA, pursuant to 29 U.S.C. 621 et seq. In Count II, he states a claim for discrimination in violation of the ADA, pursuant to 42 U.S.C. § 12101 et seq. On April 28, 2010, upon joint motion by all parties, the court consolidated the two actions, with both to proceed under Civil Action No. 2:09cv603.\nOn May 21, 2010, the court denied the defendants' Motion to Dismiss Count I of the Amended Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6). On September 7, 2010, the defendants filed the instant Motion for Summary Judgment, pursuant to Federal Rule of Civil Procedure 56(b). On September 28, 2010, the plaintiff filed an untimely Response in Opposition (\"Response\"). On October 13, 2010, the court granted the plaintiff's Motion for Leave to File his Response After the Expiration of the Specified Time, and on October 15, 2010, the defendants filed their Reply. The Motion for Summary Judgment is now ripe for review.\n\nFactual History\nUnless otherwise noted, the following facts have been stipulated by the parties, see Final Pretrial Order, ECF No. 60, and/or admitted.[5] The plaintiff was an employee of defendant Old Dominion for more than forty years. Defendant Robin Ray (\"Ray\") is a co-owner and President of Old Dominion, and is the plaintiff's cousin. During the course of the plaintiff's employment with Old Dominion, he was promoted to Vice President of the Beverage, CO2, and Vending Department. In 1992, after becoming Vice President, the plaintiff entered into a Deferred Compensation Agreement with Old Dominion (\"1992 Agreement\").[6] Under the 1992 Agreement, 688 the plaintiff (or designated beneficiary) was eligible to receive monthly benefit payments for 180 consecutive months upon: 1) retirement from Old Dominion at the age of sixty-five or older; 2) retirement due to permanent or indefinite disability; or 3) death, as long as he was employed by Old Dominion at the time of retirement or death. 1992 Agreement, Art. III(A)-(C), Am. Compl. Ex. 1, ECF No. 14-1. If the plaintiff sought to retire due to disability, he had to be deemed permanently or indefinitely disabled by a licensed physician chosen by Old Dominion. Id. at Art. I(A);[7]see also id. at Art. III(B). However, if the plaintiffs employment was terminated \"for any reason other than death, disability, or retirement at age 65,\" he would receive no benefits under the 1992 Agreement and the Agreement would become \"null and void.\" Id. at Art. III(D). Old Dominion was not required to fund the plan and the plaintiff did not \"have any lien nor right, title or interest in or to any specific funding investment or to any assets of [Old Dominion].\" Id. at Art. IV.[8]\nIn 2006, the plaintiff began receiving treatment for various health problems, including depression and addictions to alcohol and pain medication.[9] The plaintiff confided in Ray about his health issues, and she met with him periodically to monitor his progress in dealing with his depression. Despite suffering from these health issues, the plaintiff never made any request to retire due to disability nor did he make any request for accommodations due to disability.[10] Similarly, the plaintiff never submitted any documentation regarding a disability or inability to work.[11] Old 689 Dominion never sought to initiate any procedures to determine the plaintiffs eligibility to retire with benefits under the 1992 Agreement. On September 16, 2008, Old Dominion fired the plaintiff and allegedly replaced him with his brother, Phillip Davis.[12] At the termination meeting, Old Dominion's stated reason for firing the plaintiff was \"poor performance of [his] job and excessive unaccounted absent days from [his] job.\"[13]See Acknowledgment of Termination, Mem. in Supp. of Mot. for Summ. J. Ex. 6, ECF No. 46-6,[14] At that time, the plaintiff was sixty-two years old.\nOn September 18, 2010, the plaintiff met with Allen Patrick (\"Patrick\") of Old Dominion and they decided that the plaintiff should request a severance package of $85,020.00. Within two weeks of that meeting, the plaintiff and his wife spoke in person to his wife's brother, an attorney, regarding the termination, the severance issues, and not receiving benefits under the 1992 Agreement.[15] On September 29, 2010, after meeting with his wife's brother, the plaintiff entered into a Separation and Release Agreement with Old Dominion (\"2008 Document\"), which provided the plaintiff $72,000 in severance pay, in exchange for his release of any and all claims against, among others. Old Dominion and Ray, including any obligations under the 1992 Agreement and/or any claims under the ADEA and ADA.[16] To date, he has 690 not tendered, either in whole or in part, the $72,000 back to Old Dominion.\nIn Count I of the Amended Complaint, the plaintiff alleges that, at the time he was terminated, he was entitled to recover retirement benefits under the 1992 Agreement's disability provisions in the total amount of $639,253.13, paid over the course of 180 months. In Count II, he alleges that the defendants interfered with his right to collect under the 1992 Agreement. Specifically, he alleges that the defendants fired him with the specific intent to interfere with his right to collect benefits due under the 1992 Agreement, and, prior to signing the 2008 Document, Old Dominion representatives did not inform him that the 1992 Agreement had a disability provision and that he was eligible to retire and receive retirement benefits. To the contrary, the plaintiff alleges that the defendants fraudulently induced him into signing the 2008 Document by falsely representing that he was not entitled to any benefits under the 1992 Agreement, and that only if he signed the 2008 Document would he receive any compensation. Moreover, the plaintiff contends that at the time he executed the 2008 Document, his mental conditions had worsened and diminished his ability to understand the effect of signing the 2008 Document. Finally, in Count III, the plaintiff alleges that Ray and the Old Dominion Board of Directors are fiduciaries under ERISA, charged with the duty to ensure that the plaintiff receive disability benefits he may be entitled to under the 1992 Agreement; to inform the plaintiff that he may qualify for such benefits; and to inform him how to apply for and gain access to such benefits. The plaintiff argues that they breached that duty when they failed to inform him he may qualify for disability benefits under the 1992 Agreement, fired him with knowledge that he was disabled, and fraudulently procured the 2008 Document. In all three counts, the plaintiff requests that the court enter an Order declaring the 2008 Document null and void.\nIn Count I of the ADEA/ADA Complaint, the plaintiff alleges that Old Dominion discriminated against him on account of his age by terminating him on the basis of his age and health before he had attained the age of retirement and while he had a disability. The plaintiff also claims that he was treated differently than other similarly situated younger employees and was replaced by a younger, less qualified employee. In Count II, the plaintiff alleges that Old Dominion discriminated against him on account of his disability by terminating his employment and refusing to make reasonable accommodations for him. He also claims that he was treated differently than other, non-disabled employees and that Old Dominion gave his job to a younger employee who was not disabled.\n\nStandard of Review\nSummary judgment is appropriate when a court, viewing the record as a whole and in the light most favorable to the nonmoving party, finds that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Terry's Floor Fashions, Inc. v. Burlington Indus., Inc., 763 F.2d 604, 610 (4th Cir. 1985). A party opposing a motion for summary judgment may not rest on the pleadings alone, but must instead show that \"specific, material facts exist that give 691 rise to a genuine triable issue.\" Hagan v. McNallen (In re McNallen), 62 F.3d 619, 623-24 (4th Cir.1995). In essence, the nonmovant must present evidence \"on which a [trier of fact] could reasonably find\" for the nonmoving party. Anderson, 477 U.S. at 252, 106 S. Ct. 2505. Such facts must be presented in the form of exhibits and sworn affidavits. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); see also M & M Med. Supplies & Serv., Inc. v. Pleasant Valley Hosp., Inc., 981 F.2d 160, 163 (4th Cir. 1993) (\"A motion for summary judgment may not be defeated by evidence that is `merely colorable' or `is not sufficiently probative.'\" (quoting Anderson, 477 U.S. at 249-50, 106 S. Ct. 2505)).\nOn summary judgment, the court is not to \"weigh the evidence and determine the truth of the matter.\" Anderson, 477 U.S. at 249, 106 S. Ct. 2505. Instead, the court will draw any permissible inference from the underlying facts in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). But a failure by a plaintiff to rebut a defendant's motion with sufficient evidence will result in summary judgment when appropriate. \"[T]he plain language of Rule 56(c) mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.\" Celotex Corp., 477 U.S. at 322, 106 S. Ct. 2548; see also Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.1987) (finding district courts have an \"affirmative obligation ... to prevent `factually unsupported claims and defenses' from proceeding to trial.\" (citing Celotex Corp., 477 U.S. at 323-24, 106 S. Ct. 2548)).\n\nAnalysis\n\nI. Separation and Release Agreement\nBefore the court can address the substance of the Amended Complaint and the ADEA/ADA Complaint, it must determine whether the plaintiff adduces enough evidence to establish that the 2008 Document should not be enforced. The court addresses this issue first because the 2008 Document, by its terms, precludes the plaintiff from maintaining a suit on his claims. See, e.g., Reighard v. Limbach Co., Inc., 158 F. Supp. 2d 730, 733 n. 8 (E.D.Va.2001) (collecting cases indicating that an employee can waive existing claims under ERISA); E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 299-300, 122 S. Ct. 754, 151 L. Ed. 2d 755 (2002) (indicating that an employee can waive his ability to bring suit on an ADA claim in court); 29 U.S.C. § 626(f) (providing that an individual can waive rights or claims under the ADEA). The 2008 Document provides, in pertinent part:\nMr. Davis ... hereby releases Atlantic Dominion, its subsidiaries and any affiliated or related companies, and their officers, stockholders, directors, employees, and agents ... of and from all manner of action and actions, cause and causes of action, suits, ... covenants, contracts, agreements, promises, damages, claims and demands of every kind or character whatsoever, whether presently known or unknown, suspected or unsuspected, under state or federal laws, which Mr. Davis now has against Atlantic Dominion, its subsidiaries and any affiliated or related companies, their officers, stockholders, directors, employees, and/or agents.... Specifically included in this release are any claims, in connection with the past employment relationship between the parties, including, but not limited to, claims for deferred compensation due, or to become due pursuant to 692 alleged breach of any previously executed contract, wrongful discharge, ... the Age Discrimination in Employment Act..., and/or any other federal or state law relating in any way to employment rights.\n\n2008 Document ¶ 7 (emphasis added).[17] The plaintiff does not dispute that the 2008 Document, by its terms, precludes him from maintaining a suit on all of his claims. Rather, he contends that the 2008 Document should not be enforced because the defendants, \"fraudulently induced Plaintiff into signing the 2008 Document and release,\" Mem. in Opp. to Mot. for Summ. J. 4, ECF No. 52; see also Am. Compl. ¶ 29. The plaintiff also suggests that his \"mental illnesses ... diminished his ability to significantly understand the effect of executing the 2008 Document.\" See, e.g. Am. Compl. ¶ 23.\n\nA. ERISA and ADA Claims\nThe court first addresses whether the 2008 Document should be enforced as regards the plaintiffs ERISA and ADA claims. Waiver of ADEA claims is governed by the Older Workers Benefit Protection Act (\"OWBPA\"), 29 U.S.C. § 626(f), but there is no federal statute governing waiver of ERISA and ADA claims. In the absence of a controlling statute, federal courts generally enforce releases of federally protected rights in the employment context if the release was knowing and voluntary. See, e.g., Kendall v. City of Chesapeake, Va., 174 F.3d 437, 441 n. 2 (4th Cir.1999); see also Shirey ex rel. Kyger v. City of Alexandria School Bd., 229 F.3d 1143, 2000 WL 1198054 (4th Cir.2000) (per curiam) (unpublished table decision). However, there is no \"generally-applicable body of federal common law principles ... for determining whether releases of particular federal rights secured by specific provisions of federal law can be enforced,\" Kendall, 174 F.3d at 441 n. 1, and \"courts can resolve interstitial questions of federal law ... by adopting existing state law.\" Id. Accordingly, the court evaluates the plaintiffs proffered bases for setting aside his release of any ERISA and ADA claims under ordinary contract principles, and thus turns to Virginia law for guidance. See id.; see also Rodriguez-Abreu v. Chase Manhattan Bank, N.A., 986 F.2d 580, 587 (1st Cir.1993); Leavitt v. Nw. Bell Tel. Co., 921 F.2d 160, 162 (8th Cir.1990) (\"To determine whether a release [of ERISA claims] is knowing and voluntary, we apply general principles of contract construction.\").\nThe plaintiff claims that the 2008 Document should be declared null and void on the ground that Ray and Patrick took calculated actions \"designed to fraudulently obtain a release from Plaintiff.\" Mem. in Opp. to Mot. for Summ. J. 3; see also id. at 4-5, 11-15.[18] He claims fraud by both affirmative misrepresentation of material fact and by concealment of material fact.[19]See id. at 11-15. Specifically, he argues that Ray and Patrick falsely represented \"that if he did not execute the document he would get nothing,\" Am. 693 Compl. ¶ 25; see also Mem. in Opp. to Mot. for Summ. J. 4, and that Old Dominion representatives neither informed him that the 1992 Agreement had a disability provision nor that \"he was eligible to retire and receive the majority of his retirement benefits under\" that provision. Am. Compl. ¶ 24; see also Mem. in Opp. to Mot. for Summ. J. 14. In order to prove actual fraud on account of the defendants' purported misrepresentations, the plaintiff must show \"(1) a false representation, (2) of a material fact, (3) made intentionally or knowingly, (4) with intent to mislead, (5) reliance by the party misled, and (6) resulting damage to the party misled.\" W. Capital Partners, LLC v. Allegiance Title & Escrow, Inc., 520 F. Supp. 2d 777, 782 (E.D.Va.2007). Concealment, on the other hand, requires a showing of concealment of a material fact along with an intent to conceal. See Bank of Montreal v. Signet Bank, 193 F.3d 818, 827 (4th Cir.1999) (\"Silence does not constitute concealment in the absence of a duty to disclose.\" (citations omitted)).\nThe plaintiff alleges that Ray and Patrick represented to him that he would not receive any money if he did not sign the 2008 Document because he was not eligible for any benefits under the 1992 Agreement. See Mem. in Opp. to Mot. for Summ. J. 10-15. As discussed below, the plaintiff did not adduce sufficient facts to raise a genuine issue that he was entitled to such benefits at the time he signed the 2008 Document.[20] Accordingly, he fails to raise a genuine issue as to whether any such representation was false. Additionally, the plaintiff fails to adduce enough facts upon which one could reasonably conclude that Ray and/or Patrick made any such representation with the intent to mislead. The plaintiff tries to obfuscate this deficiency by citing to, and misconstruing, immaterial parts of the record. As to Patrick, the plaintiff simply does not cite any part of the record from which one could reasonably infer the requisite intent. He merely offers that Patrick is in charge of Human Resources at Old Dominion and that Patrick was aware of the plaintiffs health issues and of the disability provision in the 1992 Agreement; he does not highlight any probative statements or documents. To the extent the plaintiff could even prove these innocuous facts at trial, they are insufficient to raise a triable issue regarding intent.\nBeyond offering that Ray was aware of the plaintiffs health issues and the disability provision, the plaintiff seeks to indirectly prove Ray's intent by impeaching her credibility. He claims that Ray testified that she \"had no part in adding language to a document that advised the Plaintiff that he was giving up all rights to his Deferred Compensation Agreement,\" but, according to Patrick, \"Ray told Patrick `to make sure to let [Plaintiff] know that that's off the table', referring to the Deferred Compensation Agreement.\" Mem. in Opp. to Mot. for Summ. J. 7 (quoting Patrick Dep. 42, Mem. in Opp. to Mot. for Summ. J. Ex. 3, ECF No. 52-3). The document that the plaintiff refers to is a handwritten note memorializing his September 18, 2010, meeting with Patrick. Mem. in Supp. of Mot. for Summ. J. Ex. 7, ECF No. 46-7. Other than a request for a severance package, the note only includes the following language, to which Patrick alone signed his name: \"Jimmy Davis to-day stated to me that he knew the deferred compensation benefits is no longer in effect since he will not be working to age 65 years. He realizes that being released terminated this benefits.\" Id. Contrary to the plaintiffs characterization, this 694 document does not advise him that he was giving up his rights to benefits under the 1992 Agreement. To the extent the document advises him at all, it advises him that because he was fired, the 1992 Agreement, by its terms, is null and void.\nAlso contrary to the plaintiff's characterization, Ray did not testify that she had no part in adding language to the document. Rather, she testified \"I don't know who asked him to put this paragraph in. He might have been asked by an attorney. I don't know.\" Ray Dep. 141. In sum, the plaintiff seeks to establish that Ray told Patrick to inform the plaintiff that, per the terms of the 1992 Agreement, Old Dominion would not be paying deferred compensation benefits and, nearly two years later and in the course of this litigation, Ray cannot remember telling Patrick to do so. If the court draws an inference from Ray's statements in the light most favorable to the plaintiff, the inference is that Ray is not a credible witness. However, this inference is not sufficiently probative of an intent to mislead the plaintiff into believing he was not owed benefits.[21] Even if the inference is sufficient to discredit any explanation Ray provides, Virginia law does not presume an intent to mislead, and, accordingly, the defendants do not bear a burden to disprove intent. Accordingly, since the plaintiff provides no indication that he can meet his burden, he fails to raise a genuine issue as to an element essential to setting aside the 2008 Document on the grounds of affirmative misrepresentation.\nThe plaintiff claims concealment by alleging that Ray and Patrick concealed the material fact that the 1992 Agreement had a disability provision and that the plaintiff was eligible to retire and receive the majority of his retirement benefits at the time the 2008 Document was executed. See Mem. in Opp. of Mot. for Summ. J. 14 (\"Ray and Patrick were aware of the disability clause and intentionally omitted any mention of it when talking to Plaintiff.\"). The defendants do not dispute that Ray and Patrick did not mention the disability provision. However, the plaintiff does not cite to any statement or document that reveals that Ray and Patrick were themselves aware of the disability provision at the relevant times, such that one could entertain that they could intentionally conceal its existence. See Bank of Montreal, 193 F.3d at 827 (noting that \"concealment requires a showing of intent to conceal a material fact; reckless nondisclosure is not actionable\" (citations omitted)). Nevertheless, there is a genuine issue that Ray, but not Patrick, was aware of the provision, as Ray signed the 1992 Agreement. \"In the absence of fraud, duress, or mutual mistake, a person having the capacity to understand a written document who reads it, or, without reading it or having it read to him, signs it, is bound by his signature.\" Metro Realty of Tidewater, Inc. v. Woolard, 223 Va. 92, 286 S.E.2d 197, 200 (1982) (emphasis added) (internal quotation marks and citation omitted). However, this principle dooms the plaintiff's concealment claim because he too signed the 1992 Agreement, see 1992 Agreement 9; Davis Dep. 70 (\"I signed it.\"), and he does not even allege fraud, mutual mistake, or duress at the time the 1992 Agreement was executed. He also does not even allege that he lacked the ability to understand a written document at that time. Moreover, 695 the plaintiff admits that he kept a copy of the 1992 Agreement, and that he took the copy from his office after he was fired, but prior to signing the 2008 Document. See Davis Dep. 71-72. Accordingly, the plaintiff fails to raise a genuine issue that the disability provision was a fact that was concealed from him.\nThe plaintiff also fails to adduce enough facts to establish that Ray and Patrick concealed that he was eligible for benefits under the 1992 Agreement at the time he was fired. At a threshold level, the court reiterates that the plaintiff offers no evidence that Ray and Patrick were aware of the disability provision at the relevant times, such that it is plausible that they could intentionally conceal his eligibility under that provision at the time he was fired. The court reiterates too that there nevertheless is a genuine issue that Ray, but not Patrick, was aware of the provision. However, it is indisputable that, by the term of the 1992 Agreement, the plaintiff was ineligible for benefits once he was terminated \"for any reason other than death, disability, or retirement at age 65.\" 1992 Agreement, Art. III(D). Additionally, the plaintiff offers no evidence that Ray was aware that he was eligible at the time he was fired. He only offers that \"Ray was aware of plaintiffs drug and alcohol problems and the fact that he was seeking treatment for mental issues related to those problems.\" Mem. in Opp. to Mot. for Summ. J. 6. This one fact fails to raise a genuine issue for several independent reasons. First, eligibility must be determined under the terms of the 1992 Agreement, and it is undisputed that a licensed physician selected by Old Dominion never deemed the plaintiff disabled.[22] Accordingly, the plaintiff could not prove that Ray knew that he was eligible.[23] Second, as discussed below, Ray did not have a fiduciary duty to inform the plaintiff that he may be eligible for benefits under the 1992 Agreement.[24] Third, in his Response, the plaintiff lists as a material fact that \"Ray did not believe that Plaintiff was entitled to any benefits under the Deferred Compensation Agreement.\" Mem. in Opp. to Mot. for Summ. J. 7. One could not reasonably infer that Ray intentionally concealed a fact that she did not believe existed.\nIt is unclear if the plaintiff seeks to have the 2008 Document declared null and void on the alternative ground of incompetence.[25] Even if the plaintiffs diminished capacity allegation amounts to an incompetence claim, though, he fails to present enough facts upon which a trier of fact could reasonably find he was incompetent 696 at the time he signed the 2008 Document. Under Virginia law, a person is presumed to be competent to enter into a contract, and a person seeking to avoid a contract on the grounds of incompetence bears the burden of proving his incompetence by clear and convincing evidence. See, e.g., Bailey v. Bailey, 54 Va.App. 209, 677 S.E.2d 56, 59 (Va.Ct.App.2009). Accordingly, the plaintiff must show that, at the time he signed the 2008 Document, he had insufficient mental capacity to understand the nature of the transaction and to consent to its terms. Id. The plaintiff does not allege that he lacked the capacity to consent to the 2008 Agreement, but he does aver that he had diminished capacity to significantly understand the effect of executing it.\nEven if such a fact could prove incompetence, the plaintiff has no admissible evidence to establish it. See Toll Bros., Inc. v. Dryvit Sys., Inc., 432 F.3d 564, 568 (4th Cir.2005) (\"Summary judgment is warranted when the admissible evidence forecasted by the parties demonstrates that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law.\" (internal quotation marks and citation omitted)); see also Fed. R. Civ. P. 56(c). The plaintiffs diminished capacity claim depends entirely on the expert testimony of Dr. Charles Parker; the plaintiff offers no other evidence to establish it. See Mem. in Opp. to Mot. for Summ. J. 8-9, 16, 18. However, this evidence is inadmissible at trial because the court granted the defendants' motion in limine to preclude Dr. Parker from testifying in regard to the plaintiffs capacity to understand the significance of signing the 2008 Document. Order, ECF No. 66. Because the plaintiff offers no evidence to rebut the presumption of competence, he necessarily fails to raise a genuine issue of material fact regarding his competence to sign the 2008 Document. See Bailey, 677 S.E.2d at 59-60 (\"A party with sufficient mental capacity cannot disaffirm the agreement no matter how `ill-reasoned or ill-advised' it might be\" (quoting Drewry v. Drewry, 8 Va.App. 460, 383 S.E.2d 12, 16 (Va.Ct.App.1989))).\n\nB. ADEA Claim\nHaving found that the 2008 Document precludes the plaintiff from bringing his ERISA and ADA claims, the court turns to the enforceability of the 2008 Document as regards waiver of any ADEA claims. Waiver of ADEA claims is governed by the OWBPA. See Oubre v. Entergy Operations, Inc., 522 U.S. 422, 427, 118 S. Ct. 838, 139 L. Ed. 2d 849 (1998) (holding that a \"release can have no effect on [an] ADEA claim unless it complies with the OWBPA\"). Like ERISA and ADA waivers, a waiver of ADEA claims must be knowing and voluntary. 29 U.S.C. § 626(f)(1). The OWBPA provides baseline requirements that a waiver must satisfy in order to be considered knowing and voluntary:\n(A) the waiver is part of an agreement between the individual and the employer that is written in a manner calculated to be understood by such individual, or by the average individual eligible to participate;\n(B) the waiver specifically refers to rights or claims arising under this chapter;\n(C) the individual does not waive rights or claims that may arise after the date the waiver is executed;\n(D) the individual waives rights or claims only in exchange for consideration in addition to anything of value to which the individual is already entitled;\n(E) the individual is advised in writing to consult with an attorney prior to executing the agreement;\n\n697 (F)(i) the individual is given a period of at least 21 days within which to consider the agreement; ...\n(G) the agreement provides that for a period of at least 7 days following the execution of such agreement, the individual may revoke the agreement, and the agreement shall not become effective or enforceable until the revocation period has expired;....\nId.\nThere is no dispute that the 2008 Document complies with subparagraphs (B), (C), (E) and (G), and the court finds that it complies in those respects. The 2008 Document specifically references the ADEA, as required by subparagraph (B). 2008 Document ¶ 7. The plaintiff only waived claims that he \"now has against Atlantic Dominion,\" as required by subparagraph (C). Id. In compliance with subparagraph (E), the plaintiff \"represent[ed] and warrant[ed]\" that he was advised in writing of his right to consult an attorney before signing.[26]Id. ¶ 13; see also Metro Realty of Tidewater, 286 S.E.2d at 200. Finally, the 2008 Document provides that \"Mr. Davis shall have seven (7) days after the execution of this Agreement within which to revoke his signature and consent to this Agreement,\" as required by subparagraph (G). Id. ¶ 14; see also Davis Dep. 83.\nThe plaintiff claims there is a genuine issue of material fact that he \"was never afforded the 21 days to review the 2008 Document as evidenced by the waiver that defendants had him sign.\" Mem. in Opp. to Mot. for Summ. J. 8. Whether the plaintiff was given twenty-one days is a material fact, but the plaintiff fails to prove there is a genuine issue because the only evidence he cites proves that Old Dominion complied with the OWBPA. Under the OWBPA, the operative consideration is whether the plaintiff was given twenty-one days to consider the agreement, not whether he actually availed himself of that opportunity. See 29 U.S.C. § 626(f)(1)(F)(i). The waiver the plaintiff refers to is, in reality, a certification, and it provides, \"By my signature below, I certify that I was given 21 days to consider the release of any claim under the [ADEA] and that I have chosen to execute this Agreement prior to the expiration of this period.\"[27] 2008 Document 5 (emphasis added). This does not settle the issue, though, because the plaintiff also asserts that \"the evidence shows that Ray and Patrick exerted their influence over Plaintiff to get him to waive the twenty-one (21) days and sign the document immediately.\" Mem. in Opp. to Mot. for Summ. J. 14-15. If the plaintiff could prove that Ray and Patrick fraudulently induced him into forgoing the opportunity to exercise his statutory right, he might survive summary judgment. Cf. Neely v. Good Samaritan Hosp., 345 Fed.Appx. 39, 44 (6th Cir.2009) (per curiam) (finding that a release of ADEA claims must not only include language giving the employee the requisite statutory right, but the employee \"must also be given the opportunity to exercise that right\"). However, he does not direct the court to any supportive evidence. In the absence of any support in the record, he cannot survive summary judgment. The record only supports the conclusion that the plaintiff properly exercised his right to review the 2008 Document for twenty-one days by \"chos[ing] to execute this Agreement prior to the expiration of this period.\" 2008 Document 5.\n698 The plaintiff does not specifically dispute that the 2008 Document complies with subparagraphs (A) and (D). In regards to subparagraph (A), there is no dispute that the 2008 Document is an agreement between the plaintiff and Old Dominion. The plaintiff contends that he did not understand the full significance of signing the 2008 Document, but he bases this allegation on diminished capacity, not any defect in the manner in which it was written. See 29 U.S.C. § 626(f)(1)(A). Moreover, to the extent a diminished capacity is probative of whether subparagraph (A) is met, the court already noted that the plaintiff presents no admissible evidence to establish that fact.[28] In the absence of any evidence that the 2008 Document was written in a manner not calculated to be understood by the plaintiff \"or by the average individual eligible to participate,\" id., there is no genuine issue that the 2008 Document complies with subparagraph (A).\nIn regards to subparagraph (D), there is no dispute that the plaintiff received $72,000 for executing the 2008 Document. See, e.g., 2008 Document ¶ 2. In the ADEA/ADA Complaint, the plaintiff states that he \"signed the 2008 Document for inadequate consideration.\" ADEA/ADA Complaint ¶ 25. However, he never supports, let alone renews, this allegation in his Response. Accordingly, there is no genuine issue that the plaintiff waived his ADEA claims in exchange for consideration. It is also undisputed that the $72,000 did not constitute anything of value to which the plaintiff was already entitled at the time he signed the 2008 Document. The plaintiff contends that he was entitled to benefits under the 1992 Agreement at the time he signed the 2008 Document, but he does not offer any evidence, let alone contend, that the $72,000 represented a portion of those benefits; the $72,000 consideration was indisputably \"in addition\" to any benefits. Furthermore, as discussed below, the plaintiff fails to raise a genuine issue that he was entitled to benefits under the 1992 Agreement at the relevant times.[29] Accordingly, there is no genuine issue that the 2008 Document constitutes a valid waiver of any ADEA claim the plaintiff had at the time he was fired.\nThe plaintiff cannot prove that his waiver of any rights or claims under the ADEA, ADA and ERISA was anything but knowing and voluntary, and, therefore, valid. Accordingly, he is precluded from maintaining suit on his claims, and the court FINDS that the defendants are entitled to judgment as a matter of law. In consideration of the interplay between the above analysis and the substantive merit of the plaintiffs claims, the court will go forward and address whether \"specific, material facts exist that give rise to a genuine triable issue\" on his claims. In re McNallen, 62 F.3d at 623-24.\n\nII. Amended Complaint\n\nA. Recovery of Benefits Under the 1992 Agreement\nCount I of the Amended Complaint is predicated on the allegation that the plaintiff is owed benefits by the terms of the 1992 Agreement. In order to prove entitlement to those benefits, the plaintiff must show that he is a participant or beneficiary of an ERISA plan, see 29 U.S.C. § 1132(a)(1)(B), and that he has met the definition of \"disability\" under the terms of the 1992 Agreement.[30]See e.g., Gallagher 699 v. Reliance Standard Life Ins. Co., 305 F.3d 264, 270 (4th Cir.2002). When the court denied the defendants' Motion to Dismiss Count I of the Amended Complaint, it reaffirmed that the essence of the plaintiffs claim was not that he was directly denied benefits, but that he was \"prevented... from meeting the procedural conditions necessary to obtain benefits under the ERISA plan ...\" and those benefits \"would have been due under the 1992 Agreement had he not been terminated prior to seeking those benefits.\" Mem. Op. and Order at 4-6, ECF No. 32 (emphasis in original) (quoting Mem. Op. and Order at 11, 13, ECF No. 13).[31] Although \"it would be anomalous to dismiss the first Count ... despite plaintiffs claim that he can prove his entitlement to benefits under the terms of the plan,\" id. at 6, at the summary judgment phase, claims alone no longer suffice. See In re McNallen, 62 F.3d at 623-24. The plaintiff satisfied his pleading burden under Federal Rule of Civil Procedure 8(a)(2) on the earlier motion to dismiss, but he does not meet his burden to show a genuine issue for trial under Rule 56.\nIn order to survive summary judgment, the plaintiff must demonstrate that a trier of fact could reasonably find that he was entitled to disability benefits under the 1992 Agreement at the time he was fired. See Anderson, 477 U.S. at 252, 106 S. Ct. 2505. As such, he must point to sufficient evidence in the record that shows but for being fired, he would have been deemed \"disabled\" by a licensed physician selected by Old Dominion;[32] he cannot survive summary judgment by merely showing that but for being fired, he might have received benefits.[33] Accordingly, since the plaintiff only seeks to prove a genuine issue as to whether he had a mental condition or impairment, he did not go far enough to demonstrate a genuine issue of material fact as to Count I.\nThe plaintiff does not cite to any part of the record that supports a finding that if procedures were initiated to determine his eligibility under the 1992 Agreement, then a licensed physician selected by Old Dominion would have found him disabled. Rather, he points to material that he claims shows Dr. Parker, Ray, and Patrick believed that the plaintiff had health issues. See, e.g., Mem. in Opp. to Mot. for 700 Summ. J. 19-20.[34] Such evidence is consistent with an inference that others might formulate the same opinion. However, this material is merely colorable and, therefore, insufficient for two reasons. First, the inference it creates does not prove the essential element of the claim because it is not enough that a licensed physician selected by Old Dominion might diagnose the plaintiff with the purported health issues. By the terms of the 1992 Agreement, entitlement for benefits only vests if a licensed physician selected by Old Dominion held the opinion that those health issues rendered the plaintiff \"incapable of performing the duties of his position and [those issues are] likely to be of permanent or indefinite duration.\" 1992 Agreement, Art. I(A); cf. Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810, 821-22 (4th Cir.1995) (\"While the summary judgment standard requires us to resolve conflicting inferences from circumstantial evidence in favor of the non-moving party, it does not allow us to ignore or distort the plain meaning of words or conveniently to read them out of context.\" (citations omitted)).\nSecond, even assuming the inference, in isolation, suggests that a licensed physician selected by Old Dominion would have found that the plaintiff was disabled in September 2008, \"respondents must show that the inferences they suggest are `reasonable in light of the competing inferences.'\" M & M Med. Supplies, 981 F.2d at 163 (quoting Matsushita Elec., 475 U.S. at 588, 106 S. Ct. 1348). The competing inference is that a physician selected by Old Dominion might find the plaintiff was not disabled. Unlike the plaintiff's inference, this inference is directly supported by undisputed facts in the record. See Sylvia Dev. Corp., 48 F.3d at 810 (\"Whether an inference is reasonable cannot be decided in a vacuum[.]\" (citations omitted)). Pursuant to this court's August 6, 2010 Order, the plaintiff underwent a mental examination with Dr. Jerome Blackman, a physician the plaintiff admits was selected by Old Dominion. Dr. Blackman was of the opinion that the plaintiff did not have a disability, by any definition, in September 2008.[35] The plaintiff has to show that he is entitled to the inference that another physician selected by Old Dominion would have nonetheless deemed him 701 disabled. He makes no such showing.[36] The Response fails to identify evidence in the record that supports the essential element of his claim. He adduces no evidence that would allow a trier of fact to find that a physician selected by Old Dominion would have deemed him disabled under the terms of the 1992 Agreement. Accordingly, the plaintiff fails to show that there is a genuine issue suitable for trial.\n\nB. Interference with ERISA-Protected Rights\nCount II of the Amended Complaint is predicated on the allegation that the defendants fired the plaintiff and procured the 2008 Document for the purpose of avoiding paying the plaintiff benefits under both the disability benefits and normal retirement benefits provisions of the 1992 Agreement, in violation of 29 U.S.C. § 1140. In order to prove that the defendants interfered with protected rights by firing him, the plaintiff must show: (1) he was fired; (2) Old Dominion fired him for the purpose of interfering with his benefits under the 1992 Agreement; and (3) he had a vested right to benefits under the 1992 Agreement or that he may have become so entitled but for the firing. See, e.g., Conkwright v. Westinghouse Elec. Corp., 933 F.2d 231, 236-39 (4th Cir.1991). It is undisputed that the plaintiff was fired and that but for the firing, upon reaching sixtyfive years of age he would have been entitled to retire with benefits. The court need not determine whether there is a genuine issue of material fact as to whether he might have become entitled to disability benefits, because it is clear that he fails to make a showing sufficient to establish the existence of the second element.[37]\nAs the Fourth Circuit first pronounced in Conkwright, \"to take advantage of [29 U.S.C. § 1140], one must prove a specific intent of the employer to interfere with an employee's pension rights.\" Id. at 239. Of course, a plaintiff can meet his burden either through direct or indirect proof. Additionally, due to proof problems similar to Title VII cases, the Fourth Circuit in Conkwright adopted the McDonnell Douglas scheme of presumptions and shifting burdens of production in interference cases predicated on an alleged discriminatory firing. See 933 F.2d at 239; see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Under that scheme, the plaintiff must make a prima facie case of discrimination, then the burden shifts to the defendants to articulate a legitimate, non-discriminatory reasons for firing the plaintiff. See, e.g., Hawkins v. PepsiCo, Inc., 203 F.3d 274, 278 (4th Cir. 2000) (citations omitted). If the defendants meet their burden, then the plaintiff bears the ultimate burden to prove that the defendants' stated reason is pretext. Id.\nThe court can assume, without deciding, that the plaintiff established a triable issue regarding his prima facie case because it is clear that he did not present evidence upon which a trier of fact could reasonably find that the defendants' stated 702 reason of poor job performance and excessive unaccounted absent days is mere pretext. The plaintiff claims that \"Ray did not want Plaintiff to qualify for his Deferred Compensation for the simple reason that she would personally benefit.\" Mem. in Opp. to Mot. for Summ. J. 4. The gravamen of this allegations is that, as the owner of Old Dominion stock, \"for every one dollar ($1.00) [Old Dominion] saved, [Ray] benefits personally.\" Id. The plaintiff cannot defeat a motion for summary judgment with this allegation. He does not cite any evidence indicating that Ray was seeking to benefit personally from the firing, and the mere fact that Old Dominion saved money by firing the plaintiff is insufficient to demonstrate that the defendants' stated reason is pretext. See Conkwright, 933 F.2d at 239; see also Wright v. Sears, Roebuck and Co., 81 Fed.Appx. 37, 45 (6th Cir.2003) (\"Proximity to vesting and a showing of cost savings is not sufficient, standing alone, to entitle plaintiff to a trial.\").\nThe plaintiffs other proffers also fail to rebut the defendants' stated legitimate, non-discriminatory reason for firing him. He cites his own testimony that \"he was often out of the office on calls or on the street meeting with customers or potential customers,\" Mem. in Opp. to Mot. for Summ. J. at 9 (citing Davis Dep. 45), but he never disputes that he missed fifty-two days of work in 2008 before September 16, 2008, that Ray believed he missed that many days at the time she fired him, and that those absences were not excused.[38] This testimony does not provide a basis for a trier of fact to reasonably infer that Ray harbored the specific intent to interfere with the plaintiffs ERISA-protected rights. The plaintiff also cites to Ray's testimony that the plaintiff is not entitled to any benefits because he was fired prior to reaching the age of sixty-five, and to her testimony that suggests she was aware of the plaintiffs health issues. However, these facts are too innocuous to reasonably infer the requisite intent by the path of pretext. See Conkwright, 933 F.2d at 239; see also Wright, 81 Fed.Appx. at 45. Under such reasoning, anytime an employer fires an employee prior to the age of retirement, or anytime an employer fires an employee with a known health issue, for excessive unexcused absences, the employer's action would be suspect. A trier of fact could not reasonably infer that the defendants' stated reason is pretext based simply on the fact that the defendants knew the plaintiff had health issues and that the plaintiff would be eligible to retire with benefits under the 1992 Agreement at age sixty-five. See M & M Med. Supplies, 981 F.2d at 163.\nInstead of pointing the court to material facts that demonstrate the defendants' stated reason is mere pretext, the plaintiff sets forth an incongruous argument that the court should apply a modified abuse of discretion standard of review as set out in Doe v. Group Hospitalization & Medical Serv., 3 F.3d 80 (4th Cir.1993), and \"scrutinize[ ] to a higher degree\" Ray's decision to fire the plaintiff. Mem. in Opp. to Mot. for Summ. J. 22. Doe is not pertinent to an ERISA interference claim. The Doe plaintiff was challenging a plan administrator's decision to deny him coverage, pursuant to 29 U.S.C. § 1132; there was no interference claim, pursuant to 29 U.S.C. § 1140. The plaintiff fails to even address the McDonnell Douglas scheme. He misapprehends the defendants' burden, and incorrectly claims that the \"defendants must have more substantial evidence to support [its firing] decision\" than \"handwritten notes that allegedly documented 703 Plaintiff's numerous absences from work.\" Id. at 22-23. Under the McDonnell Douglas scheme, it is the plaintiff who must make a evidentiary showing that casts doubt on the defendants' stated legitimate, non-discriminatory basis for firing the plaintiff, and as stated, the plaintiff fails to make any such showing. Accordingly, he has not met his burden to show that there is a genuine issue suitable for trial.\nThe plaintiff also claims that the defendants interfered with his rights under ERISA when he and Old Dominion executed the 2008 Document. As a threshold matter, 29 U.S.C. § 1140 does not proscribe release agreements, no matter the employer's specific intent. That Code provision states that \"[i]t shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant\" for the purpose of interfering with ERISA-protected rights. The plaintiff does not offer any basis to construe those six actions as embracing the execution of a release agreement. Nonetheless, even if that provision implicates the 2008 Document, the plaintiff's claim fails as a matter of law.\nIn order to prove that the defendants interfered with protected rights by executing the 2008 Document, the plaintiff must show: (1) Old Dominion executed the 2008 Document with him; (2) Old Dominion did so for the purpose of interfering with his benefits under the 1992 Agreement; and (3) he had a vested right to benefits under the 1992 Agreement or he may have become so entitled but for signing the 2008 Document. See, e.g., Conkwright, 933 F.2d at 236-39. Having already found that the plaintiff fails to show that there is a genuine issue that he was fired in order to interfere with ERISA-protected rights and that he would have received benefits under the 1992 Agreement but for his firing,[39] the court need not dwell long on this claim. By the terms of the 1992 Agreement, \"[s]hould the [plaintiff's] services for [Old Dominion] be terminated for any reason other than death, disability or retirement at age 65, all of the [plaintiff's] benefits under this Agreement shall be forfeited and this Agreement shall become null and void.\" 1992 Agreement, Art. III(D) (emphasis added). In other words, the plaintiff was unequivocally foreclosed from collecting benefits under the 1992 Agreement in the event he was fired from his job. It is undisputed that he was fired from his job, thus, at the time he signed the 2008 Document, he had neither a vested right to benefits under the 1992 Agreement nor might he have become so entitled but for signing the 2008 Document. Accordingly, the plaintiff cannot raise a triable issue on the third element of the interference proof, and his claim fails as a matter of law.\n\nC. Breach of Fiduciary Duty\nThe third count of the Amended Complaint is predicated on the allegation that Ray and the Old Dominion Board of Directors are fiduciaries under ERISA, 29 U.S.C. § 1002(21)(A), and they breached their fiduciary duty, in violation of 29 U.S.C. §§ 1104 and 1109, thereby authorizing the plaintiff to bring a claim pursuant to 29 U.S.C. § 1132(a)(2). In order to survive summary judgment, the plaintiff must make the threshold showing that there is a genuine issue that the 1992 Agreement is subject to ERISA's fiduciary requirements. The defendants contend that there is no genuine issue that the 1992 Agreement is exempt from ERISA's fiduciary requirements because the undisputed facts show it is a \"top-hat\" plan. A top-hat plan refers to \"a plan which is unfunded 704 and is maintained by an employer primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees.\" 29 U.S.C. § 1101(a)(1). Top-hat plans are exempt from the substantive requirements of ERISA, including fiduciary requirements,[40]id., \"because `Congress recognized that certain individuals, by virtue of their position or compensation level, have the ability to affect or substantially influence, through negotiation or otherwise, the design and operation of their deferred compensation plan ... and, therefore, [do] not need the substantive rights and protections of Title I.'\" Carr v. First Nationwide Bank, 816 F. Supp. 1476, 1491 (N.D.Ca.1993) (quoting U.S. Dep't of Labor ERISA Op. 90-14A). Accordingly, in addition to the two explicit statutory requirements, see 29 U.S.C. § 1101(a)(1), several courts recognize a third requirement: that employees participating in the alleged top hat plan have sufficient influence within the company to negotiate compensation agreements that will protect their interests where ERISA provisions do not apply. See Guiragoss v. Khoury, 444 F. Supp. 2d 649, 658-59 (E.D.Va.2006) (citations omitted); but see Alexander v. Brigham and Women's Physicians Org., Inc., 513 F.3d 37, 46-47 (1st Cir.2008) (declining to follow those courts that recognize a bargaining power requirement).\nThere is no genuine issue that the plan is unfunded.[41] In determining whether a plan is unfunded, a court asks whether \"the beneficiary [can] establish, through the plan documents, a legal right any greater than that of an unsecured creditor to a specific set of funds from which the employer is, under the terms of the plan, obligated to pay the deferred compensation.\" Guiragoss, 444 F.Supp.2d at 659-60 (quoting Demery v. Extebank Deferred Compensation Plan (B), 216 F.3d 283, 287 (2d Cir.2000)). The plaintiff cannot do so. Without citing to plan documents or any support in the record, he merely claims that Old Dominion intended to fund the 1992 Agreement with a life insurance policy on his life.[42] Unsupported allegations cannot defeat a summary judgment motion, and the plain language of the 1992 Agreement shows that the plaintiff \"remain[s] simply a general creditor of the Company in the same manner as any other creditor having a general claim for matured and unpaid compensation.\" 1992 Agreement, Art. IV.\nThe plaintiff does not dispute that the 1992 Agreement meets the second requirement, and the undisputed facts support a finding that it does. The 1992 Agreement was negotiated in an effort to retain a select group composed of management and highly compensated employeesthe plaintiff and Patrick.[43] There is no genuine issue that the plaintiff, a Vice-President, and Patrick, a Secretary/Treasurer, were high-level employees nor that they were the second and third highest paid employees at Old Dominion, respectively. Accordingly, the second requirement is satisfied.\nAlthough the plaintiff argues the third requirement is not met, his argument is misguided, and he does not cite to any evidence that demonstrates a genuine issue of material fact. Citing to his own 705 testimony, he argues that the 1992 Agreement was drafted by the defendants and given to him with no opportunity to negotiate changes. Mem. in Opp. to Mot. for Summ. J. 25 (citing Davis Dep. 71). He avers that because he took no part in negotiating the 1992 Agreement, he \"had no opportunity to negotiate the Agreement to protect his own interests.\" Id. However, this line of reasoning is off the mark because the material fact is overall ability, not the presentation of an opportunity. Restated, the issue is whether the plaintiff had sufficient influence within the company to negotiate an agreement that would protect his interests where ERISA provisions do not apply; it is immaterial that he did not, in fact, negotiate the 1992 Agreement.[44]See Demery, 216 F.3d at 289. The plaintiff was a Vice-President, a high level executive assumed to possess a favorable bargaining position to negotiate the terms of a deferred compensation agreement. He does not offer any evidence that suggests insufficient bargaining power. See id. at 290.\nThe plaintiff fails to make the threshold showing that there is a genuine issue that the 1992 Agreement is subject to ERISA's fiduciary requirements. Accordingly, since he cannot show that Ray and the Old Dominion Board of Directors were subject to any fiduciary duty under ERISA, his claim fails as a matter of law.\n\nIII. ADEA/ADA Complaint\n\nA. ADEA Claim\nCount I of the ADEA/ADA Complaint is predicated on the allegation that Old Dominion violated the ADEA by firing the plaintiff on the basis of his age and health three years before retirement and while he was disabled. The plaintiff also claims that Old Dominion violated the ADEA by treating him differently than other similarly situated younger employees and replacing him with a younger, less qualified employee. ADEA/ADA Complaint ¶ 35. The plaintiff can prove his entitlement to relief in two ways. The ordinary standard of proof requires that he show: (1) he was an employee covered by the ADEA; (2) he suffered an unfavorable action by an employer covered by the ADEA; and (3) age was a determining factor, meaning that but for the employer's motive to discriminate against him on the basis of age, he would not have been subject to that unfavorable action. See E.E.O.C. v. Clay Printing Co., 955 F.2d 936, 940-41 (4th Cir.1992).\nIt is undisputed that the plaintiff was an employee covered by the ADEA, see 29 U.S.C. § 631(a), and that Old Dominion, an employer covered under the\n706 ADEA, see id. § 630(b), fired him. However, the plaintiff must \"`produce direct evidence of a stated purpose to discriminate [on the basis of age] and/or circumstantial evidence of a stated purpose to discriminate [on the basis of age] of sufficient probative force to reflect a genuine issue of material fact.'\" E.E.O.C., 955 F.2d at 941 (quoting Goldberg v. B. Green & Co., Inc., 836 F.2d 845, 848 (4th Cir. 1988)). As the Fourth Circuit recognized, \"when a plaintiff admits under oath that he or she cannot point to any statement or piece of physical evidence indicative of age discrimination, it undermines the plaintiff's claim.\" Id. In his deposition, the plaintiff admitted that no one at Old Dominion ever made a comment to him about his age, and he stated that his only evidence of age discrimination was that \"I wouldn't get that bonus if I didn't reach 65, and I was getting pretty close to it.\" Davis Dep. 25; see also id. at 26 (indicating that he has no other reason to believe he was subject to age discrimination). Although these admission are not fatal, there is no evidence in the record that Old Dominion had a stated purpose to discriminate against the plaintiff on the basis of his age when it fired him. Similarly, there is no evidence that the plaintiff was even treated differently at work, let alone on account of his age. Indeed, the Response makes no reference to unlawful treatment while the plaintiff was employed by Old Dominion and merely argues that he was fired in violation of the ADEA.\nSimilar to interference with ERISA rights claims under 29 U.S.C. § 1140, however, the plaintiff may also resort to the McDonnell Douglas scheme, E.E.O.C., 955 F.2d at 941. Under that scheme, the plaintiff must establish a prima facie case, then the burden shifts to Old Dominion to articulate a legitimate, nondiscriminatory reasons for taking action against the employee. If Old Dominion meets its burden, then the plaintiff bears the ultimate burden to prove that Old Dominion's stated reason is pretext. E.E.O.C., 955 F.2d at 941. That burden requires the plaintiff to demonstrate by a preponderance of the evidence that Old Dominion's action was based upon age or that its proffered reason is \"`unworthy of credence.'\" Id. (quoting Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 256, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981)). Unlike the interference claim under 29 U.S.C. § 1140, however, the court will not assume that the plaintiff established a triable issue regarding his prima facie case because it is clear that he did not.\nIn order to establish a prima facie case that age was a determining factor in firing the plaintiff, the plaintiff must show: (1) he was an employee covered by the ADEA; (2) he was fired by an employer covered by the ADEA; (3) at the time he was fired, he was performing at a satisfactory level, meeting his employer's legitimate expectations, and (4) following his firing, he was replaced by a person outside the protected class.[45]Id. The first two elements are met, but the plaintiff offers no evidence to establish that his replacement was outside the protected class.[46]707 Additionally, he fails to adduce any evidence that he was performing at a satisfactory level, meeting Old Dominion's legitimate expectations in September 2008. The plaintiff does not dispute that he missed fifty-two days of work in 2008.[47] Moreover, he admitted under oath that he thought he was fired because he was not doing his job and that Ray had told him he was missing too many days at work. Davis Dep. 25 and 45. At the summary judgment phase, the court is not weighing the facts to determine the truth, and, therefore, these parts of the record do not mandate summary judgment. However, absent any evidence in the record supporting an inference that the plaintiff was performing his job at a satisfactory level, meeting Old Dominion's legitimate expectations, they certainly underscore that there is no genuine issue that age was a determining factor in firing him.\nThe plaintiff also fails to show that he can establish a prima facie case that he endured disparate treatment on the basis of his age. In order to establish a prima facie case, the plaintiff must show: (1) he was an employee covered by the ADEA; (2) he suffered an adverse employment action; and (3) the adverse employment action raises a reasonable inference of unlawful discrimination. See, e.g., Jackson v. Winter, 497 F. Supp. 2d 759, 767 (E.D.Va.2007) (citations omitted). As stated by the Fourth Circuit, \"[a]n adverse employment action is a discriminatory act which `adversely affect[s] the terms, conditions, or benefits of the plaintiff's employment.'\" James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375 (4th Cir.2004) (quoting Von Gunten v. Maryland, 243 F.3d 858, 865 (4th Cir.2001)). As already noted, the plaintiff offers no evidence that he was treated differently at work, let alone on account of his age, and, moreover, the Response makes no reference to unlawful treatment while he was employed by Old Dominion. See Evans v. Techs. Apps. & Serv. Co., 80 F.3d 954, 960 (4th Cir.1996) (recognizing that \"unsubstantiated allegations and bald assertions\" are insufficient to show discrimination). Accordingly, because the plaintiff fails to show that he can establish a prima facie case, his claim fails as a matter of law.\n\nB. ADA Claim\nCount II of the ADEA/ADA Complaint is predicated on the allegation that Old Dominion violated the ADA by firing the plaintiff on account of a disability, refusing to make reasonable accommodations for him, and treating him differently than other, non-disabled employees of Old Dominion. In order to prove Old Dominion violated the ADA, the plaintiff must first establish that he is a \"qualified individual with a disability\" under the ADA. See Rohan v. Networks Presentations LLC, 375 F.3d 266, 272 (4th Cir.2004); 42 U.S.C. § 12112 (2006).[48] A qualified individual with a disability is an individual with a disability \"who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individuals holds or desires.\" 42 U.S.C. § 12111(8). Accordingly, the plaintiff had to show that there is a genuine 708 issue of material fact that he is both qualified and disabled. Rohan, 375 F.3d at 272. The court need not determine whether the plaintiff offers sufficient evidence that he was disabled, because it is clear that he fails to meet his burden to show that he was qualified at the relevant time.[49]\nIn order to survive summary judgment, the plaintiff had to show that with or without reasonable accommodations he could perform the essential functions of his position at Old Dominion or a position that he desired. The essential functions of a job are those \"that bear more than a marginal relationship to the job at issue.\" Porter v. U.S. Alumoweld Co., Inc., 125 F.3d 243, 247 n. 3 (4th Cir. 1997). As a threshold matter, the plaintiff never indicates that he desired a position other than the one he occupied at the time he was fired.[50] Accordingly, the court need only determine if he made a sufficient showing in regards to the position he occupied at the time he was fired. The parties do not dispute that the plaintiff was a Vice President of the Beverage, CO2, and Vending Department and that his focus was efforts on development of the drink and snack vending operation at Old Dominion. See Mem. in Supp. of Mot. for Summ. J. 4; ADEA/ADA Compl. ¶ 10. In his deposition, the plaintiff testified that his duties were to \"[o]versee the operations of the division\" and \"just go get the business.\" Davis Dep. 26. He also testified that he was often out of the office on calls or following leads. See id. 45. The plaintiff does not point to any support in the record, let alone allege, that he could perform the essential functions of his job, with or without reasonable accommodations, at the relevant times.[51] He merely alleges he \"was a qualified employee with a disability.\" Mem. in Opp. of Mot. for Summ. J. 27. This unsupported assertion would not allow a jury to reasonably find that he was qualified.[52] The plaintiff fails to show there is a genuine triable issue that he was a qualified individual under the ADA. Accordingly, his claim fail as a matter of law.\nBecause the plaintiff fails to make a sufficient showing to establish the existence of elements essential to his case, and on which he bears the burden of proof, with respect to all of his claims under the Amended Complaint and all of his claims under the ADEA/ADA Complaint, the 709 court FINDS that the defendants are entitled to judgment as a matter of law.\n\nConclusion\nFor the reasons stated above, the court GRANTS the defendants' Motion for Summary Judgment. The Clerk shall enter judgment for defendants in both cases, action no. 2:09cv603 and action no. 2:10cv130.\nIT IS SO ORDERED.\nNOTES\n[1] The court will hereafter refer to the Amended Complaint in state court as the \"Complaint.\"\n[2] All references hereafter to this filing in federal court will be to the \"Amended Complaint.\"\n[3] The facts stated in the Amended Complaint are substantively the same as those in the Complaint, except that the plaintiff has stated additional facts to support and clarify his claim for relief under ERISA.\n[4] All references hereafter to this filing in federal court will be to the \"ADEA/ADA Complaint.\"\n[5] In determining whether a genuine issue of material fact exists, \"the Court may assume that facts identified by the moving party in its listing of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion.\" E.D. Va. Loc. Civ. R. 56(B); see also Fed.R.Civ.P. 56(e). The defendants contend that the court should ignore the Response, and only consider their statement of undisputed facts, because the Response was filed \"out of time.\" See Reply in Supp. of Mot. for Summ. J 1 n. 1, ECF No. 59 [hereinafter \"Reply\"]. The court disagrees and directs the defendants to the court's October 13, 2010 Order granting the plaintiff's Motion for Leave to File his Response After the Expiration of the Specified Time. ECF No. 58. For that reason, citation to Fuqua v. Tarmac of America, Inc., 228 F. Supp. 2d 755 (E.D.Va. 2002) is unavailing. In that case, as here, the plaintiff filed beyond the deadline. However, Fuqua never moved for an extension, and, accordingly, one was never entered. The defendants also point to Fuqua in support of their contention that the court should only consider the defendants' statement of undisputed facts because the Response \"did not specifically oppose any of the [defendants'] Undisputed Facts.\" Reply 1 n. 1. Again, citation to Fuqua is unavailing. Although the court noted that Fuqua did \"not attempt to answer or dispute the defendants' facts directly,\" Fuqua, 228 F.Supp.2d at 756 n. 2 (emphasis added), the court did not propound a stringent standard for crafting an opposition brief. Here, the Response included a captioned section listing all material facts that the plaintiff claims demonstrate the inappropriateness of summary judgment. It is true that a party opposing summary judgment must show that a purportedly undisputed fact is controverted. Nonetheless, the court will not ignore the Response based on stylistic formalities when the plaintiff otherwise complied with the Federal Rules of Civil Procedure and the Local Civil Rules.\n[6] Allen Patrick (\"Patrick\"), Old Dominion's Secretary/Treasurer, was the only other employee to enter into a 1992 Agreement. At that time, the plaintiff and Patrick were the second and third highest paid employees at Old Dominion, respectively. Since the 1980s, only three other management-level employees at Old Dominion entered into similar agreements.\n[7] The 1992 Agreement defines \"Disability\" as \"[a] physical or mental injury, condition or impairment which, in the opinion of a licensed physician selected by the Company, renders the Executive incapable of performing the duties of his position and is likely to be of permanent or indefinite duration.\" 1992 Agreement, Art. 1(A).\n[8] This court previously recognized that Old Dominion's general assets are the source of financing the plan. Davis v. Old Dominion Tobacco Co. Inc., 688 F. Supp. 2d 466, 470 (E.D.Va.2010). The plaintiff does not dispute that the plan does not designate a specific set of funds from which Old Dominion would be obligated to pay any benefits due. Rather, he highlights the undisputed fact that Old Dominion took out a life insurance policy on him at the time of execution of the 1992 Agreement, and, without citing any material in the record, \"contends that the policy was intended to fund the [1992 Agreement].\" Mem. in Opp. to Mot. for Summ. J. 24, ECF No. 52.\n[9] On January 10, 2007, the plaintiff met with Dr. Charles Parker, his treating psychiatrist. Dr. Parker and his staff noted that the plaintiff suffered from mental health problems, such as Major Depressive Affective Disorder, a recurrent problem, and Attention Deficit Hyperactivity Disorder.\n[10] The record is silent as to whether the plaintiff continued to work for the entire time he received treatment, though the plaintiff does claim that he was still a valuable employee while in treatment. He also claims that Ray told him, with regard to his health problems, \"that it was okay, not to worry about it, and to take as much time as he needed to recover and complete medical treatment.\" See Am. Compl. ¶ 19, ECF. No. 14. Ray claims that she meant the plaintiff could take time \"to see whatever doctors or whoever was going to treat him,\" and \"[h]e did not bring us any information on treatment, nor expected time frame.\" Ray Dep. 75, Mem. in Opp. to Mot. for Summ. J. Ex. 1, ECF No. 52-1 [hereinafter \"Ray Dep.\"].\n[11] The plaintiff does not dispute that he never requested to be examined by a licensed physician selected by Old Dominion prior to termination of his employment nor that such an examination never took place. He also does not dispute that Dr. Parker never was asked to prepare any documentation regarding a disability and/or need for accommodations. Dr. Parker indicates that patients request such notes \"all the time,\" and he would have been willing to provide the plaintiff with such documentation upon request. See Parker Dep. 110, Mem. in Supp. of Mot. for Summ. J. Ex. 4, ECF No. 46-4 [hereinafter \"Parker Dep.\"].\n[12] Ray stated that the plaintiff \"has not been replaced.\" Ray Dep. 154.\n[13] On two occasions in the year leading up to the firing, Ray told the plaintiff that he was not attending work regularly. At the time of the firing, Ray told the plaintiff that he had already missed fifty-two days of work in 2008 alone. The plaintiff does not dispute that statistic, and even stated that he thought Ray believed it to be true. See Davis Dep. 87, Mem. in Supp. of Mot. for Summ. J. Ex. 1, ECF No. 46-1 [hereinafter \"Davis Dep.\"]. In muted disagreement, he highlights his own testimony that he was often out of the office on business matters. Mem. in Opp. to Mot. for Summ. J. 9, ECF No. 52 (citing Davis Dep. 45). However, the plaintiff does not dispute that he was inexcusably absent and he does not even allege that the defendants mistakenly believed him absent when he was instead out of the office on business matters. The plaintiff also points to material that suggests Ray told him to take as much time as he needed to recover. See supra note 10. However, he does not point to any evidence, let alone contend, that any of his fifty-two absences from work were attributable to doctor's visits or any other circumstance related to recovery. Moreover, he does not point to any evidence, let alone contend, that he provided Ray or anyone at Old Dominion with information suggesting that any of his absences were attributable to such a circumstance. Without such a showing, Ray's statement cannot reasonably be inferred to excuse fifty-two unexplained absences. In sum, the plaintiff does not present any evidence to support a genuine issue of fact regarding his absenteeism.\n[14] The plaintiff confirmed these bases by written acknowledgment. Acknowledgment of Termination, Mem. in Supp. of Mot. for Summ. J. Ex. 6, ECF No. 46-6. The Acknowledgment further provided that Ray would \"consider a moderate separation package,\" and \"if [one] is negotiated [the plaintiff] will be willing to sign a release.\" Id.\n[15] There is no dispute that this meeting took place. The plaintiff stated, \"I wanted to make sure I should sign it or whatever, one of those agreements.\" Davis Dep. 74. However, he contends that his wife's brother did not provide any legal advice, and notes that his wife's brother practices in a different area of the law. See Mem. in Opp. to Mot. for Summ. J. 7-8.\n[16] See infra note 17 and accompanying text. Additionally, the 2008 Document advised the plaintiff to seek counsel, gave him twenty-one (21) days to review the Document before signing it, and gave him seven (7) days to revoke his signature and consent after signing it. The plaintiff never revoked his signature, and on the same day he signed the 2008 Document, he signed a written certification that we was given 21 days \"to consider the release of any claim under the [ADEA]\" and chose \"to execute the [2008 Document] prior to the expiration of this period.\" 2008 Document, Mem. in Opp. to Mot. for Summ. J. Ex. 2, ECF No. 52-2.\n[17] The 2008 Document recites that Old Dominion \"found it necessary to sever the employment relationship ... due to work performance and absenteeism.\" 2008 Document ¶ B. The 2008 Document also provides that it does not constitute an admission or statement or wrongdoing or breach of contract, and that the plaintiff carefully reviewed its terms and executed it \"of his own volition\". 2008 Document ¶¶ 10-11; see also supra note 16.\n[18] The court evaluates a claim to set aside a contract due to misrepresentations and/or concealment of material fact under Virginia's law of fraud. See, e.g., W. Capital Partners, LLC v. Allegiance Title & Escrow, Inc., 520 F. Supp. 2d 777, 781-82 (E.D.Va.2007).\n[19] Plaintiff does not claim constructive fraud.\n[20] See infra Part II.A.\n[21] Moreover, the plaintiff cites Ray's testimony in support of the proposition that \"Ray did not believe that Plaintiff was entitled to any benefits under the Deferred Compensation Agreement.\" Mem. in Opp. to Mot. For Summ. J. 7. It is difficult to envision how the plaintiff might prove an intent to mislead when he concedes that the alleged misleading party believed her statement was factually accurate.\n[22] See supra notes 7 and 11 and accompanying text.\n[23] See supra note 11 and accompanying text; see also infra Part II.A (finding that plaintiff fails to raise a genuine issue that he would have been deemed eligible but for being fired); Part II.B (finding that plaintiff fails to raise a genuine issue that the defendants possessed the specific intent to fire him in order to interfere with his rights under the 1992 Agreement).\n[24] See infra Part II.C (finding that the 1992 Agreement is not subject to ERISA's fiduciary requirements).\n[25] The Response presents \"Material Facts Regarding the Fraudulent Procurement of the 2008 Document\" and \"Material Facts in Regarding [sic] the Opinions of Dr. Parker.\" See Mem. in Opp. to Mot. for Summ. J. 7-9. However, the plaintiff does not directly address the merits of the defendants' argument that he failed to raise a genuine issue of incompetence at the time the 2008 Document was executed. Rather, the plaintiff argues that he \"is not required to prove incompetence in order for the 2008 Document to be set aside. Plaintiff contends the misrepresentation of the defendants fraudulently induced Plaintiff into signing the 2008 Document.\" Id. at 10.\n[26] See supra note 15 and accompanying text.\n[27] The plaintiff also \"represent[ed] and warrant[ed]... that Atlantic Dominion has given Mr. Davis a period of twenty-one (21) days within which to consider this Agreement.\" 2008 Document ¶ 13.\n[28] See supra at 24-25.\n[29] See infra Part II.A.\n[30] There is no dispute that the plaintiff is a participant or beneficiary of the 1992 Agreement, and the court has already determined that the 1992 Agreement is an ERISA plan. See Mem. Op. and Order at 6-7, ECF No. 13.\n[31] In other words, the plaintiff claims that \"but for the defendants' conduct, [he] would have been deemed `disabled,' as defined under the 1992 Agreement, and, knowing this, the defendants terminated him before he was able to initiate such procedures.\" Mem. Op. and Order at 6, ECF No. 32.\n[32] See supra note 7.\n[33] See supra note 31 and accompanying text. Whether the plaintiff might have been entitled to benefits under the 1992 Agreement is a material fact as regards his claim for interference with ERISA-protected rights. See 29 U.S.C. § 1140 (deeming it unlawful to fire a plan participant \"for the purpose of interfering with the attainment of any right to which such participant may become entitled\" (emphasis added)). However, it is immaterial to the plaintiff's claim that but for the defendants' actions, he would have received benefits under the terms of the plan itself. The court will not collapse two different provisions of ERISA into one. Congress's decision to provide a separate cause of action in 29 U.S.C. § 1140 for purposeful interference necessarily precludes one from reading 29 U.S.C. § 1132 as providing for the same enforcement mechanism. See U.S. v. Ryan-Webster, 353 F.3d 353, 366 (4th Cir.2003) (discussing an \"interpretive canon\" known as the rule against superfluity, in which courts must avoid any interpretation of statutory provisions and words which render them superfluous); see also Conkwright v. Westinghouse Elec. Corp., 933 F.2d 231, 237 (4th Cir.1991).\n[34] Although the plaintiff's expert, Dr. Parker, can testify to the plaintiff's health issues and the general impact of them, he is specifically precluded from testifying that the plaintiff was disabled and incapable of performing the duties of his position at the time he was fired. See Order, ECF No. 66.\n[35] The plaintiff does not dispute Dr. Blackman's diagnosis, but rather argues that \"a Treating Physician should be given greater deference in ERISA conflict of interest cases.\" Mem. in Opp. to Mot. for Summ. J. 16. In support of that contention, he points the court to Davidson v. Kemper Nat'l Services, Inc., 231 F. Supp. 2d 446 (W.D.Va.2002). However, his argument and Davidson are completely inapposite. Foremost, Dr. Parker will not testify that the plaintiff was disabled at the time he was fired. See Order, ECF No. 66. Additionally, in Davidson, the district court was reviewing a plan administrator's decision to deny benefits under ERISA, whereas here, there is no decision to review. Although this is reason enough to ignore Davidson, the court also notes that the disability clause at issue in Davidson, unlike the clause at issue here, did not link a disability finding to the opinion of a licensed physician selected by the Company. Moreover, the Davidson court specifically noted that the \"the Fourth Circuit has yet to formally decide whether the `Treating Physician's Rule,' ... should be used in ERISA cases.\" Davidson, 231 F.Supp.2d at 454. Finally, the Fourth Circuit noted that the Treating Physician's Rule \"only requires an award of benefits based upon a treating doctor's opinion of disability absent persuasive contradictory evidence,\" Elliott v. Sara Lee Corp., 190 F.3d 601, 607 (4th Cir.1999), and here, such persuasive contradictory evidence exists.\n[36] The court is not weighing the persuasiveness of Dr. Blackman's opinion against Dr. Parker's opinion and any statements made by Old Dominion employees. The operative consideration at summary judgment is whether the plaintiff has shown that those materials would allow a trier of fact to reasonably infer that a licensed physician selected by Old Dominion would have considered him disabled in September of 2008 in light of the competing inference and the undisputed fact that a licensed physician selected by Old Dominion did not find that he was disabled.\n[37] The plaintiff fails to raise a genuine issue that he had a vested right to disability benefits at the time he was fired. See supra Part II.A.\n[38] See supra note 13.\n[39] See supra Part II.A.\n[40] Top-hat plans are not exempt from ERISA's reporting,' disclosure, administration and enforcement provisions. See, e.g., Guiragoss v. Khoury, 444 F. Supp. 2d 649, 658 n. 10 (E.D.Va.2006) (citations omitted).\n[41] See supra note 8 and accompanying text.\n[42] See supra note 8.\n[43] See supra note 6; see also 1992 Agreement, Preamble.\n[44] It might be material if the plaintiff attempted to negotiate the 1992 Agreement and Old Dominion rebuffed him, but he makes no such allegation and his testimony, the only material he cites in this regard, permits no such inference:\n\nQ. Okay. Tell medid you have any discussion with Robin to negotiate the terms of this agreement, Exhibit 3?\nA. No.\nQ. So, this agreement was presented to you and you executed it?\nA. Yes.\nQ. Were you given a copy of the agreement?\nA. Yes.\nQ. Did you read the agreement before you signed it?\nA. Not all the way through.\nQ. Is that your practice to\nA. No. I just felt like if Robin was doing something nice, she wouldn't beI just signed it, very trusting of her.\nQ. What did you do with the copy of the agreement that you were given?\nA. I had a file there at the office. I put it there.\nDavis Dep. 71.\n[45] A individual in the protected class is \"at least 40 years of age.\" See 29 U.S.C. § 631(a).\n[46] The plaintiff only alleges that he was replaced by a younger employee in violation of the ADEA. ADEA/ADA Comp. ¶ 35. Of note, the ADEA/ADA Complaint alleges that the replacement, the plaintiff's brother Phillip Davis, is fifteen years younger than the plaintiff. Id. ¶ 15. The plaintiff was sixty-two at the time he was fired. Accordingly, if the replacement is, in fact, fifteen years younger than the plaintiff, then the replacement was within the protected class. See 29 U.S.C. § 631(a).\n[47] See supra note 13.\n[48] Amendments to the ADA took effect on January 1, 2009, after the relevant conduct underlying the plaintiff's ADA claims. As the Fourth Circuit recognized, \"Congress did not express its intent for these changes to apply retroactively,\" thus the court must look to the ADA in its form prior to the amendments. See Shin v. Maryland Med. Sys. Corp., 369 Fed.Appx. 472, 478 n. 14 (4th Cir.2010) (citing Landgraf v. USI Film Prods., 511 U.S. 244, 270-71, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994) and Olatunji v. Ashcroft, 387 F.3d 383, 389 (4th Cir.2004)).\n[49] Of note, like his ADEA claim, the plaintiff admitted that he could not point to any statement or piece of physical evidence indicative of discrimination in violation of the ADA. See E.E.O.C., 955 F.2d at 941. In response to the question \"How do you think Atlantic Dominion violated the [ADA] with respect to you?\", the plaintiff responded, \"I don't know.\" Davis Dep. 86.\n[50] In the ADEA/ADA Complaint, the plaintiff only claims that \"he can, with reasonable accommodation, perform the essential functions of the job that he held while in the employ of Old Dominion.\" ADEA/ADA Complaint ¶ 39. He does not allege any desired position nor that he could perform his job without reasonable accommodation.\n[51] The court again notes that the plaintiff does not raise a dispute that he missed fiftytwo days of work in 2008. See supra note 13. Moreover, plaintiff admitted under oath that he thought he was fired because he was not doing his job and that Ray had told him he was missing too many days at work. Davis Dep. 25 and 45.\n[52] The plaintiff actually seeks to establish that he was not qualified. He alleges that his \"condition impaired his ability to perform his duties as Vice President,\" Mem. in Opp. of Mot. for Summ. J. 27, and he highlights Dr. Parker's opinion that \"[p]laintiff was incapable of performing the duties of his position as senior vice-president.\" Id. at 18 (emphasis added). Dr. Parker is precluded from testifying at trial to this opinion, see Order, ECF No. 66, but it is significant that the plaintiff seeks to establish this fact despite pursuing an ADA claim.\n\n", "ocr": false, "opinion_id": 2474924 } ]	E.D. Virginia	District Court, E.D. Virginia	FD	Virginia, VA
1,575,727	George Howard, Jr.	1985-06-14	false	boyd-v-board-of-directors-of-the-mcgehee-school-district-no-17	Boyd	Boyd v. Board of Directors of the McGehee School District No. 17	Mary BOYD, Jamesina Boyd, Patricia Beverly, Diane Baldwin and Orlando Johnson v. BOARD OF DIRECTORS OF the McGE-HEE SCHOOL DISTRICT NO. 17, Buford Conner, Individually and in His Official Capacity as Superintendent of the McGehee School District No. 17, Robert Hardin, Carol Lucky, Breck Smith, Robert Prosser and Tyrone Broomfield, Individually and in Their Official Capacities as Members of the Board of Directors of the McGehee School District No. 17, and Sammy Gill, Individually and in His Official Capacity as a Coach for the McGehee School District No. 17, Defendants	Ben Johnson, Jr., Legal Services of Arkansas, Monticello, Ark., for plaintiffs., Gibbs Ferguson, McGehee, Ark., G. Ross Smith, Little Rock, Ark., for defendants.	null	null	null	null	null	null	null	null	null	null	14	Published	null	<parties id="b152-11"> Mary BOYD, Jamesina Boyd, Patricia Beverly, Diane Baldwin and Orlando Johnson v. BOARD OF DIRECTORS OF the McGE-HEE SCHOOL DISTRICT NO. 17, Buford Conner, Individually and in his official capacity as Superintendent of the McGehee School District No. 17, Robert Hardin, Carol Lucky, Breck Smith, Robert Prosser and Tyrone Broomfield, Individually and in their official capacities as Members of the Board of Directors of the McGehee School District No. 17, and Sammy Gill, Individually and in his official capacity as a Coach for the McGehee School District No. 17, Defendants. </parties><br><docketnumber id="b152-14"> No. PB-C-83-371. </docketnumber><br><court id="b152-15"> United States District Court, E.D. Arkansas, Pine Bluff Division. </court><br><decisiondate id="b152-18"> June 14, 1985. </decisiondate><br><attorneys id="b154-8"> <span citation-index="1" class="star-pagination" label="88"> *88 </span> Ben Johnson, Jr., Legal Services of Arkansas, Monticello, Ark., for plaintiffs. </attorneys><br><attorneys id="b154-11"> Gibbs Ferguson, McGehee, Ark., G. Ross Smith, Little Rock, Ark., for defendants. </attorneys>	[ "612 F. Supp. 86" ]	[ { "author_str": "Howard", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 1529, "opinion_text": "\n612 F. Supp. 86 (1985)\nMary BOYD, Jamesina Boyd, Patricia Beverly, Diane Baldwin and Orlando Johnson\nv.\nBOARD OF DIRECTORS OF the McGEHEE SCHOOL DISTRICT NO. 17, Buford Conner, Individually and in his official capacity as Superintendent of the McGehee School District No. 17, Robert Hardin, Carol Lucky, Breck Smith, Robert Prosser and Tyrone Broomfield, Individually and in their official capacities as Members of the Board of Directors of the McGehee School District No. 17, and Sammy Gill, Individually and in his official capacity as a Coach for the McGehee School District No. 17, Defendants.\nNo. PB-C-83-371.\nUnited States District Court, E.D. Arkansas, Pine Bluff Division.\nJune 14, 1985.\n87 88 Ben Johnson, Jr., Legal Services of Arkansas, Monticello, Ark., for plaintiffs.\nGibbs Ferguson, McGehee, Ark., G. Ross Smith, Little Rock, Ark., for defendants.\n\nMEMORANDUM OPINION AND ORDER\nGEORGE HOWARD, Jr., District Judge.\nThis action was filed on October 7, 1983, under 42 U.S.C. § 1983 and 28 U.S.C. §§ 1343, 2201 and 2202 by Jamesina Boyd and Orlando Johnson, black students, of McGehee High School in McGehee School District No. 17, Desha County, Arkansas, by and through their parents and guardians, praying a preliminary and final injunction requiring defendants, Board of Directors of McGehee School District No. 17, Buford Conner, individually and in his capacity as Superintendent of the McGehee School District No. 17, Robert Hardin, Carol Lucky, Breck Smith, Robert Prosser, Tyrone Broomfield, individually and in their capacities as members of the Board of Directors of McGehee School District No. 17, and Sammy Gill, individually and in his capacity as a coach for the McGehee School District No. 17, to certify Jamesina Boyd, a black female high school senior, as 1983-84 McGehee High School homecoming queen instead of certifying Kristy Wynn, a white female high school senior.[1] The plaintiffs alleged that Boyd had polled the highest number of votes a majority cast by members of the football team, twenty-eight votes of the fifty-four members of the team, during an election for homecoming queen, but defendant Gill had manipulated the results of the election, because of the race of Boyd, so that Wynn could serve as homecoming queen.\nThe Court is persuaded that the election conducted pursuant to this Court's order rendered the issue involving the selection of homecoming queen moot,[2] and, therefore, 89 the central issue to be resolved is whether the suspension of Johnson from the McGehee High School football team, within the context of the facts in this case, constituted an infringement of Johnson's right to freedom of expression as secured under the First and Fourteenth Amendments to the Federal Constitution. A collateral issue, but nevertheless significant, is whether Johnson was denied procedural due process of law in connection with his suspension.\n\nRELEVANT FACTS\nOn September 12, 1983, an election was conducted by the head football coach, Sammy Gill, for the position of High School homecoming queen for the 1983-84 school year. In accordance with the custom and practice of the McGehee High School, only members of the high school football team were eligible to participate in the election. There were fifty-four members constituting the current team consisting of twenty-eight white and twenty-six black players.\nFour female high school students were nominated for the position, three whites and one black. The black nominee was Jamesina Boyd. The players were directed to indicate their choice for queen by the \"show-of-hands\" as each nominee's name was called. Purportedly, Boyd, the black nominee, received the highest number of votes and should have been designated queen. However, Gill directed the players to indicate their preference between the two white nominees who had polled the highest number of votes between the three white nominees in the initial vote. Wynn won the election involving the two white nominees. Gill then directed the players to vote their preference between Boyd and Wynn. This election was by secret ballot each player indicated his preference on a slip of paper and delivered the slip to Gill. Gill took immediate possession of the slips and departed for his home without announcing the results. The following day, Gill announced that Wynn, the white nominee, had won the last election and, consequently, was the 1983-1984 McGehee High School homecoming queen.[3]\nPractically all of the black players believed that Boyd had won the election initially and that Gill had manipulated the election so that one of the white nominees could be designated queen. A series of conferences were held between the black players, their parents, Gill and the Board of Directors of the District. The Board of Directors elected to take no action on the matter, but agreed to draft objective guidelines to govern the selection of homecoming queens in future years. Gill refused to modify the announced election results.\nOn September 23, 1983, twenty-five of the twenty-six black players, in order to protest what they perceived to have been an act of racial discrimination in the selection of the queen, walked out of a pep rally during the afternoon and refused to participate in the game scheduled for that night.\nOn September 26, 1983, Johnson and the other twenty-four black players participating in the \"boycott\" of the scheduled game were suspended from participating on the football team for the remainder of the 1983-84 season. There were approximately four more scheduled games to be played, including the school's traditional homecoming game.\nPlaintiffs contend that the black players were suspended because of their race and as punishment for the exercise of their right of \"freedom of expression.\" On the other hand, defendants assert that the black players were suspended because they had violated an unwritten rule maintained by Gill to the effect that any player who 90 missed a game or football practice \"without good cause\" or \"proper excuse\" would be suspended from the team; and that the suspension was not because of race or the exercise of First Amendment rights.\nOn October 11, 1983, Orlando Johnson filed his motion for preliminary injunction requiring defendants to reinstate him as a player on the football team.\nOn October 14, 1983, this Court entered its order directing defendants to reinstate Johnson as a member of the football team immediately and afford him the same opportunities he enjoyed as a team member prior to his suspension.[4]\nOn October 20, 1983, Johnson filed his motion for an order directing defendants to show cause why defendants should not be held in contempt for violating this Court's order of October 14, 1983, directing defendants to reinstate Johnson as a member of the football team. The motion alleges:\n4. That pursuant to a motion for a preliminary injunction by Plaintiff and subsequent to an evidentiary hearing held October 11, 1983 upon said motion, this Court granted a preliminary injunction, entered October 14, 1983 directing Defendant as follows:\nThe Defendants and their agents, officers, servants, employees and attorneys are enjoined and directed to reinstate Orlando Johnson as a member of the McGehee High School football team immediately and are further directed to afford Orlando the same opportunity he enjoyed as a team member prior to the incident resulting in this action until this cause has been heard on the merits....\n5. That Plaintiff, Orlando Johnson, was reinstated by the McGehee High School football team on October 14, 1983 and allowed to participate in the football game in which the McGehee High School football team participated on that date.\n6. That from the next regularly scheduled practice session on October 17, 1983, until Wednesday, October 19, 1983, the Defendant, head football coach Sammy Gill, has violated the Court's Order reinstating Plaintiff, Orlando Johnson, in the following respects:\n(a) Plaintiff, Orlando Johnson, was switched from his starting \"defensive end\" position on the McGehee High School football team to the position of \"tail back\", a position he has never played on any organized level.\n(b) Plaintiff, Orlando Johnson, was excluded from a team meeting.\n(c) That Defendant Sammy Gill has refused to take necessary action to protect the health and safety of Plaintiff, Orlando Johnson, from acts and omissions of his teammates as a result of animosity because of Plaintiff, Orlando Johnson's participation in a September 23, 1983 boycott of a McGehee High School football game.\n7. That the above-described violation of this Court's order made for an intolerable situation in which the very life, health, and safety of Plaintiff, Orlando Johnson, were endangered and forced him to refrain from participating on the McGehee High School football team as 91 he was to be allowed pursuant to this Court's October 14, 1983 Order.\nOn December 12, 1983, the Court conducted a hearing on the merits.\n\nDECISION\n\nI.\n\nFIRST AMENDMENT ISSUE\nBefore addressing the issue to be resolved, the Court deems it fitting to delineate some general observations pertaining to the rights of students as articulated by relevant court decisions:\nThe Court of Appeals for the Eighth Circuit in Strickland v. Inlow, 485 F.2d 186 (1973) made the following comment:\nThe law with respect to the rights of students is still developing.... The responsibility for public education is primarily the concern of the states. The exercise of this responsibility, however, must be consistent with federal constitutional requirements....\nIn Tinker v. Des Moines School District, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969), the Supreme Court observed:\nFirst Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years....\n. . . . .\nIn order for ... school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would `materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,' the prohibition cannot be sustained.\n. . . . .\n... A student's rights, therefore, do not embrace merely the classroom hours. When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions, even on controversial subjects....\nAfter carefully scrutinizing the evidence contained in this record, the black members of the McGehee High School football team who took part in the demonstration had reasonable grounds to believe that Coach Gill had purposely manipulated the election to preclude Boyd from serving as homecoming queen because of her race and color. This conclusion is predicated on the following findings:\n1. During the 1975-76 school term, a black female contestant for homecoming queen was prevented from serving as queen, although she had polled more votes than the white nominees, because Gill felt that \"McGehee High School was not ready for a black homecoming queen.\"\nTommy Morrison, a witness for plaintiffs, testified that in 1976, while doing his practice teaching at the McGehee High School, as a University of Arkansas college student, he was present during the 1976 homecoming queen election and that the black nominee polled the highest number of votes, but was made first alternate by Gill instead of homecoming queen.\n2. As head coach, Gill personally created and fostered a racial atmosphere in the athletic department of the McGehee High School. Gill often referred to black players as \"niggers\" and specifically referred to Johnson as his \"little black nigger from Chicago.\" Gill admitted that he had used the racial slur.\nTommy Morrison also testified that Gill confronted him often with racist jokes. One in particular that Morrison remembered was: \"That the way to prevent a 92 black man from raping a white woman was to roll the black man a basketball.\"\nTommy Ireland, who is currently head coach at Crossett, Arkansas High School, testified that he was present during a junior high school basketball game in Gill's gymnasium in which Gill officiated, when the game ended prematurely, after Gill directed a basketball coach and his team to \"get their black asses out of my gym.\"\nDennis Coleman, a former student of McGehee High School, testified that Gill often downgraded black students from Eudora, Arkansas, as those \"niggers from Eudora.\"\n3. The failure of Gill to announce immediately the results of the election between Boyd and Wynn; and the purported disappearance of the ballots, which prevented the players from inspecting the ballots, created a strong suspicion of manipulation of the election by Gill.\nWhile it is well settled that public education in our country is the responsibility of school administrators and courts are reluctant to intervene in conflicts which develop in the day to day operation of a school system, this does not mean either that free expression, as enunciated under the Federal Constitution, must exist in a vacuum as opposed to a living reality on the school campus, or that school officials, as agents of the state, may stifle free expression, whether by written or unwritten policies, where, as here, the expression does not \"materially and substantially interfere with the requirement of appropriate discipline in the operation of the school\" and the rights of others. Burnside v. Byars, 363 F.2d 744 (5th Cir.1966).\nIt is clear from this record that 49% of the fifty-four member football team cherished the opportunity and honor, and to this end strove conscientiously to hasten the day, when the school's first black homecoming queen could be elected. While the 1976 incident might have dampened their spirit, the black players never lost hope. The Court is also persuaded that there were at least two white players who shared the same views of their black associates. The black players believed that they had achieved that goal in the 1983 election, but only to have their hopes frustrated and the long sought after goal nullified by Coach Gill. Their first act to rectify what was perceived as racism in its truest form was to confer with Coach Gill. Without success, the black players and their parents sought help from the Board of Directors. The Board assuming a posture of what the black players perceived as a hands off approach to the problem, the black players were left without any recourse other than what Americans, from the very inception of this Republic, regard as fundamental and basic in a democracy, namely, \"freedom of expression,\" when peaceful and in good order, to communicate views on questions of group interest. First, the black players walked out of the pep rally and, secondly, refused to participate in a scheduled game. This action was without any substantial intrusion of the work and discipline of the school. Johnson has met the burden of establishing that his conduct was constitutionally protected and that his action was the motivating factor in Coach Gill's act in suspending him from the football team, in effect permanently.[5] Coach Gill has not demonstrated that he would have suspended Johnson from the team in the absence of the protected conduct. Nor is the Court persuaded that Coach Gill's unwritten policy that a player is automatically suspended who, \"without good cause\" or \"proper excuse\", misses a practice session or fails to participate in a scheduled game takes precedent over a student's right of free expression in the context of the factual setting of this case. Moreover, such a policy, which is purely subjective and depends upon the idiosyncrasies of the head football coach can neither frustrate nor chill the First Amendment rights of students. There are no standards to determine \"without good cause\" or \"proper excuse\", objectively. Peaceful protest by students in the factual backdrop 93 of this controversy may not be contingent upon the uncontrolled will of the head coach.\nDefendants argue that what is involved here is not \"pure speech\" communication of ideas but a form of protest which is comparable to picketing. But the Court hastens to emphasize that the Supreme Court has made it crystal clear that picketing and parading do constitute methods of expression warranting First Amendment protection. Shuttlesworth v. Birmingham, 394 U.S. 147, 152, 89 S. Ct. 935, 939, 22 L. Ed. 2d 162; Cox v. Louisiana, 379 U.S. 536, 85 S. Ct. 453, 13 L. Ed. 2d 471.\nGiven the fact that it has been the custom and practice of the Board of Directors of the McGehee School District to delegate to the head football coach the responsibility to supervise the selection of the homecoming queen each year and the proof further demonstrates that the board members did not personally participate in the suspension of Johnson, the Court holds that only Coach Gill may be held accountable to Johnson and Mason for the deprivation of their First Amendment rights under this Section 1983 action.\n\nII.\n\nPROCEDURAL DUE PROCESS OF LAW\nThe question here for resolution is whether Johnson was entitled to procedural due process notice of the charge against him and an opportunity to present his side of controversy before Coach Gill suspended Johnson from the football team for the remainder of the term.\nIn analyzing the question, it is important to recognize that Johnson was a senior and there were approximately four games, including the traditional homecoming game, remaining on the school's schedule for the current term. Coach Gill testified that Johnson was an outstanding athlete and the 1983 season was Johnson's last opportunity to participate in football at the high school level. Coach Gill and other witnesses acknowledged that participation in high school sports is vital and indispensible to a college scholarship and, in essence, a college education. In other words, Johnson's continued status as a member of the McGehee High School football team during his last year was very important to Johnson's development educationally and economically in the future. Thus, Johnson's privilege of participating in interscholastic athletics must be deemed a property interest protected by the due process clause of the Fourteenth Amendment. Johnson's interest was indeed embraced in those fundamental aspects of life, liberty and property which the Federal Constitution is designed to protect and secure. See, Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975). Johnson's interest was something more than a desire to participate in a single season of interscholastic athletics without the belief and desire of realizing any tangential benefits accruing to him in the future.\nAbsent any clear urgency for acting prior to a hearing, Johnson was constitutionally entitled to procedural due process before Coach Gill could suspend him from the McGehee High School football team for the rest of the season. See, Strickland v. Inlow, 485 F.2d 186 (8th Cir. 1973). There were no urgent circumstances confronting Coach Gill, the educational process or other students at the time. It is clear from the evidence that the \"boycott\" was not disruptive in any way. Of course, it goes without saying where there exists a clear urgency, procedural due process is afforded by granting a hearing within a reasonable time after the fact the suspension. The Court is persuaded that Johnson has stated a cause of action under Title 42 U.S.C. § 1983 against Coach Gill, but not against the other defendants.\n\nIII.\n\nCONTEMPT\nJohnson's motion for an order of the Court citing Gill for contempt of this Court's Order of November 14, 1983, directing the reinstatement of Johnson as a 94 member of the football team and sanctions are denied. Johnson argues that Gill, after reinstating Johnson to the team, \"attempted to switch [Johnson] from his original position as a starting defensive end to tail back ... [which] presented a hazard to Johnson's health and safety and resulted in [Johnson] resigning from ... the team on October 19, 1983.\"\nAfter carefully considering the evidence and argument of counsel, the Court holds that Johnson has failed to establish, by a preponderance of the evidence, that Gill deliberately switched Johnson to tail back in order to place him in a vulnerable position or that Gill had reason to believe that the white players would not block for Johnson when he carried the ball. It must be remembered that because of the controversy which centered around the selection of the homecoming queen, approximately 40% of the players remained off the team when Johnson was reinstated. Gill felt, under these circumstances, that he had to make certain readjustments in team positions to cope with the changed conditions.\nThe Court has carefully considered the additional requests of plaintiffs for sanctions against defendants for purportedly not complying with an order of the Court requiring them to respond to certain discovery requests prior to trial. The Court finds that this request for relief is without merit and denies any relief.\n\nIV.\n\nRELIEF AFFORDED\n1. Inasmuch as the Court has found that the election held pursuant to this Court's order for homecoming queen has rendered Boyd's claim moot, the Court holds that she is not entitled to any relief and her complaint is dismissed.\n2. Because of the deprivation of federal rights sustained by Johnson and Mason, the Court awards Johnson and Mason nominal damages in the sum of $250.00 each.\nFurther, because of Coach Gill's wilful, malicious and conscious indifference to the federal constitutional rights of Johnson and Mason, coupled with Coach Gill's invidious racial discriminatory action toward the black players, the Court awards Johnson and Mason punitive damages in the sum of $1,000.00 each.\n3. In accordance with the findings discussed herein, this action is dismissed with prejudice as to defendants Board of Directors of McGehee School District No. 17, Buford Conner, Superintendent of McGehee School District No. 17, and Robert Hardin, Carol Lucky, Breck Smith, Robert Prosser and Tyrone Broomfield, members of the Board of Directors of McGehee School District No. 17.\n4. Johnson and Mason are entitled to recover their cost expended. Counsel for Johnson and Mason is directed to file the appropriate pleading in support of his fee request.\nNOTES\n[1] Plaintiffs amended their complaint on October 28, 1983, to request monetary damages.\n[2] On October 11, 1983, this Court directed Gill to conduct a new election employing a voting machine acquired from Desha County officials. The new election was held on October 12, 1983, resulting in the white candidate receiving a majority of the votes cast thirty votes for Wynn and twenty-four for Boyd.\n\nThe Court is not persuaded that this issue remains viable under the theory that it comes within the \"capable of repetition, yet evading review\" exception pronounced in Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 514-16, 31 S. Ct. 279, 283, 55 L. Ed. 310. There is no reasonable expectation that Boyd, who was a graduating senior, would be subjected to the same action again.\nPlaintiff Boyd did not appear during the course of the trial on the merits. While the Court is of the view that the issue regarding the election of homecoming queen is moot, Boyd's failure to appear seemingly would support a finding of abandonment of any claim for final relief.\n[3] Coach Gill did not produce the ballots for inspection by the players. Also, Coach Gill was unable to produce the ballots in court because the ballots were inadvertently misplaced by him or some member of his immediate family.\n[4] Only Orlando Johnson sought reinstatement to the football team. However, on October 24, 1983, Mark Mason, by and through his mother, moved to intervene seeking, among other things, reinstatement to the football team in his own behalf and as a class representative of the twenty-two (22) other black players. On October 28, 1983, this Court entered its order granting Mason permission to intervene as a party-plaintiff, but, denied Mason's request for a temporary restraining order directing his reinstatement and the class he sought to represent on the grounds that the complaint was not verified and petitioner had failed to comply with Rule 65(b) of Fed.R.Civ.P. in failing to attach affidavits setting forth specific facts indicating the irreparable harm that was likely to accrue if the temporary restraining order was denied.\n\nThe Court also denied petitioner's request to certify the proceeding as a class action since petitioner had failed to demonstrate that the action met the prerequisites of Rule 23 of Fed.R. Civ.P. for class certification.\nMason, like Johnson, was suspended from the football team for participating in the \"boycott\" of a game scheduled for September 23, 1983. Mason also seeks damages against defendants.\n[5] Johnson was a senior and the 1983 football season was his last year.\n\n", "ocr": false, "opinion_id": 1575727 } ]	E.D. Arkansas	District Court, E.D. Arkansas	FD	Arkansas, AR
826,133	null	2013-03-01	false	united-states-v-michael-eugene-farmer	null	United States v. Michael Eugene Farmer	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://pacer.ca4.uscourts.gov/opinion.pdf/127988.U.pdf", "author_id": null, "opinion_text": " UNPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 12-7988\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v.\n\nMICHAEL EUGENE FARMER,\n\n Defendant - Appellant.\n\n\n\nAppeal from the United States District Court for the Eastern\nDistrict of North Carolina, at Raleigh. Terrence W. Boyle,\nDistrict Judge. (5:02-cr-00131-BO-1; 5:11-cv-00642-BO)\n\n\nSubmitted: February 26, 2013 Decided: March 1, 2013\n\n\nBefore MOTZ, WYNN, and DIAZ, Circuit Judges.\n\n\nAffirmed by unpublished per curiam opinion.\n\n\nMichael Eugene Farmer, Appellant Pro Se. Jennifer P. May-\nParker, Assistant United States Attorney, J. Frank Bradsher,\nEric David Goulian, OFFICE OF THE UNITED STATES ATTORNEY,\nRaleigh, North Carolina, for Appellee.\n\n\nUnpublished opinions are not binding precedent in this circuit.\n\fPER CURIAM:\n\n Michael Eugene Farmer seeks to appeal the district\n\ncourt’s order denying his motion to reconsider the denial of his\n\n28 U.S.C.A. § 2255 (West Supp. 2012) motion. The district court\n\nalso granted Farmer a certificate of appealability in an earlier\n\norder. We have reviewed the record and find no reversible\n\nerror. Accordingly, we deny Farmer’s motions for appointment of\n\ncounsel and affirm for the reasons stated by the district\n\ncourt. United States v. Farmer, No. 5:02-cr-00131-BO-1; 5:11-\n\ncv-00642-BO (E.D.N.C. Nov. 16, 2012). We dispense with oral\n\nargument because the facts and legal contentions are adequately\n\npresented in the materials before this court and argument would\n\nnot aid the decisional process.\n\n\n\n AFFIRMED\n\n\n\n\n 2\n\f", "ocr": false, "opinion_id": 826133 } ]	Fourth Circuit	Court of Appeals for the Fourth Circuit	F	USA, Federal
127	Davis, King, Per Curiam, Shedd	2010-03-15	false	united-states-v-dittrich	Dittrich	United States v. Dittrich	UNITED STATES of America, Plaintiff—Appellee, v. Travis Edward DITTRICH, Defendant—Appellant	Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. George E.B. Holding, United States Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee.	null	null	null	null	null	null	null	Submitted: Feb. 19, 2010.	null	null	0	Unpublished	null	<parties id="b437-13"> UNITED STATES of America, Plaintiff—Appellee, v. Travis Edward DITTRICH, Defendant—Appellant. </parties><br><docketnumber id="b437-16"> No. 09-4311. </docketnumber><br><court id="b437-17"> United States Court of Appeals, Fourth Circuit. </court><br><otherdate id="b437-18"> Submitted: Feb. 19, 2010. </otherdate><br><decisiondate id="b437-19"> Decided: March 15, 2010. </decisiondate><br><attorneys id="b438-4"> <span citation-index="1" class="star-pagination" label="412"> *412 </span> Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. George E.B. Holding, United States Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. </attorneys><br><judges id="b438-5"> Before KING, SHEDD, and DAVIS, Circuit Judges. </judges>	[ "370 F. App'x 411" ]	[ { "author_str": "Per Curiam", "per_curiam": false, "type": "010combined", "page_count": 3, "download_url": "http://pacer.ca4.uscourts.gov/opinion.pdf/094311.U.pdf", "author_id": null, "opinion_text": " UNPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 09-4311\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v.\n\nTRAVIS EDWARD DITTRICH,\n\n Defendant - Appellant.\n\n\n\nAppeal from the United States District Court for the Eastern\nDistrict of North Carolina, at Raleigh. James C. Dever III,\nDistrict Judge. (7:08-cr-00094-D-1)\n\n\nSubmitted: February 19, 2010 Decided: March 15, 2010\n\n\nBefore KING, SHEDD, and DAVIS, Circuit Judges.\n\n\nAffirmed by unpublished per curiam opinion.\n\n\nThomas P. McNamara, Federal Public Defender, Stephen C. Gordon,\nAssistant Federal Public Defender, Raleigh, North Carolina, for\nAppellant. George E. B. Holding, United States Attorney, Anne\nM. Hayes, Jennifer P. May-Parker, Assistant United States\nAttorneys, Raleigh, North Carolina, for Appellee.\n\n\nUnpublished opinions are not binding precedent in this circuit.\n\fPER CURIAM:\n\n Travis Edward Dittrich pled guilty to fifteen counts\n\nof receiving child pornography, 18 U.S.C.A. § 2252(a)(2) (West\n\nSupp. 2009) (Counts 1-15), and to one count of possessing child\n\npornography, 18 U.S.C.A. § 2252(a)(4)(B) (West Supp. 2009)\n\n(Count 16). (JA 6-41). The district court imposed a 144-month\n\nsentence for Counts 1-15 and 120-month concurrent sentence for\n\nCount 16. Both sentences were imposed within Dittrich’s\n\nproperly-calculated advisory Sentencing Guidelines range.\n\nDittrich timely appeals his sentence, alleging that the district\n\ncourt procedurally erred because it rejected his assertion that\n\nhis criminal history was overstated. For the reasons that\n\nfollow, we affirm.\n\n First, we find no abuse of discretion in the district\n\ncourt’s sentencing of Dittrich. Gall v. United States, 552 U.S.\n\n38, 49 (2007) (providing review standard). Second, our review\n\nof Dittrich’s sentence reveals it was procedurally and\n\nsubstantively reasonable, United States v. Carter, 564 F.3d\n\n325, 328 (4th Cir. 2009), and we apply a presumption of\n\nreasonableness to a sentence within the proper Sentencing\n\nGuidelines range. United States v. Allen, 491 F.3d 178, 193\n\n(4th Cir. 2007). Finally, we conclude that the district court\n\ndid not err in rejecting Dittrich’s argument that his criminal\n\nhistory category of III over-represented his actual criminal\n\n 2\n\fhistory, see generally U.S. Sentencing Guidelines Manual §\n\n4A1.3(b) (2008) (permitting downward departure based on over-\n\nrepresented criminal history), and that the district court\n\nadequately explained on the record its decision not to depart on\n\nthis basis. Carter, 564 F.3d at 328.\n\n Accordingly, we affirm Dittrich’s sentence. We\n\ndispense with oral argument because the facts and legal\n\ncontentions are adequately presented in the materials before the\n\ncourt and argument would not aid the decisional process.\n\n\n\n AFFIRMED\n\n\n\n\n 3\n\f", "ocr": false, "opinion_id": 127 } ]	Fourth Circuit	Court of Appeals for the Fourth Circuit	F	USA, Federal
2,619,611	Kaul	1969-06-14	false	state-v-patchett	Patchett	State v. Patchett	State of Kansas, Appellee, v. Lawrence Patchett, Appellant	Charles D. Knapp, of CofEeyville, argued the cause and was on the brief for the appellant., Monte K. Heasty, County Attorney, argued the cause, and Kent Frizzell, Attorney General, and Timothy R. Emert, Assistant County Attorney, were with him on the brief for the appellee.	null	null	null	null	null	null	null	null	null	null	7	Published	null	<docketnumber id="b734-4"> No. 45,393 </docketnumber><br><parties id="b734-5"> State of Kansas, <em> Appellee, </em> v. Lawrence Patchett, <em> Appellant. </em> </parties><br><citation id="b734-6"> (455 P. 2d 580) </citation><decisiondate id="AXV"> Opinion filed June 14, 1969. </decisiondate><br><attorneys id="b734-10"> <em> Charles D. Knapp, </em> of CofEeyville, argued the cause and was on the brief for the appellant. </attorneys><br><attorneys id="b734-11"> <em> Monte K. Heasty, </em> County Attorney, argued the cause, and <em> Kent Frizzell, </em> Attorney General, and <em> Timothy R. Emert, </em> Assistant County Attorney, were with him on the brief for the appellee. </attorneys>	[ "455 P.2d 580", "203 Kan. 642" ]	[ { "author_str": "Kaul", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 4476, "opinion_text": "\n203 Kan. 642 (1969)\n455 P.2d 580\nSTATE OF KANSAS, Appellee,\nv.\nLAWRENCE PATCHETT, Appellant.\nNo. 45,393\nSupreme Court of Kansas.\nOpinion filed June 14, 1969.\nCharles D. Knapp, of Coffeyville, argued the cause and was on the brief for the appellant.\nMonte K. Heasty, County Attorney, argued the cause, and Kent Frizzell, Attorney General, and Timothy R. Emert, Assistant County Attorney, were with him on the brief for the appellee.\nThe opinion of the court was delivered by\nKAUL, J.:\nDefendant, Lawrence Patchett, appeals from a conviction of burglary in the second degree (K.S.A. 21-520) and larceny in connection therewith (K.S.A. 21-524).\nThe defendant was charged with breaking out a panel of glass in a lumberyard office door, entering the building in the nighttime, and stealing tools and supplies of the value of over $300 during the early morning of December 7, 1967. Defendant was convicted by a jury and concurrent sentences of ten to twenty years were imposed on each charge pursuant to K.S.A. 21-523, 21-524 and 21-107a.\nOn appeal defendant claims error in admitting evidence of a prior conviction in the state's case in chief and further error in overruling his motion for a new trial, based on the same ground.\nDuring its case in chief, the state introduced evidence of prior convictions of defendant under the provisions of K.S.A. 60-455, for the purpose of showing the state of mind of defendant as to motive, opportunity, intent, preparation and knowledge. The evidence consisted of the information and journal entry of defendant's conviction in Montgomery County in 1965 on two counts of burglary and larceny and one count of grand larceny of an automobile (K.S.A. 21-533).\nOn appeal defendant does not challenge the admissibility of the 643 burglary and larceny convictions. His sole argument is aimed at the admission of the automobile theft conviction. At the time the evidence was offered the state proposed that only the counts of burglary in the second degree and larceny in connection therewith be admitted. Defendant insisted that if the information and journal entry be introduced, the instruments in their entirety must be admitted. After considerable colloquy between the court, defense counsel and the county attorney, the court admitted the entire information and journal entry which were read to the jury. At the time, the court orally instructed the jury as to the limited purpose for which it might consider the evidence of the two counts of burglary in the second degree and larceny in connection therewith, and in addition instructed that the count of automobile theft had no relation to this case whatesover, and was read because the defense insisted the document should be read as a whole.\nThe court's written instructions are not included in the abstract before us, but we are informed that the court again incorporated an instruction as to the limited purpose for which the jury might consider the burglary and larceny convictions, and a direction that the automobile theft conviction be entirely disregarded. According to the record before us, no objections were made to the instructions.\nThe state meets defendant's contention by arguing that since defendant was also charged with grand larceny, the previous conviction of larceny of an automobile is relevant and admissible. The state further argues that since defendant insisted that the documents, evidencing the prior convictions, must be admitted in their entirety or not at all, defendant is bound by the admission of the complete documents since parts thereof were clearly admissible. The state asserts that, even assuming arguendo, the automobile theft conviction was irrelevant, the defendant could not lead the trial court into error by insisting on the admission of evidence and later claiming error. The state further claims that by insisting that all three counts be introduced defendent must be deemed to have waived any alleged violation of 60-455.\nK.S.A. 60-455 was enacted as a part of the new code of civil procedure (Laws of 1963, Chapter 303). The rule of evidence stated therein, as applied to criminal proceedings, has not materially changed the case law as it has developed in Kansas. (State v. Wright, 194 Kan. 271, 398 P.2d 339.)\nIn essence, the general rule, as it came to be recognized, is that 644 evidence as to the commission of offenses by a defendant in a criminal case, not in anyway connected with that charged in the information, should be excluded from the jury. However, exceptions were recognized to the general rule. Generally, it became recognized that evidence which legitimately tends to support the charge or show the intent with which it is committed is not to be excluded on the ground it will prove other offenses. (State v. Kirby, 62 Kan. 436, 63 P. 752; State v. Wright, supra, and cases cited therein.) The exceptions are now enumerated in K.S.A. 60-455 as follows:\n\"Subject to section 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his disposition to commit crime or civil wrong as the basis for an inference that he committed another crime or civil wrong on another specified occasion but, subject to sections 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.\"\nOn the showing here, the prior automobile theft conviction, if opposed by a properly lodged objection, was inadmissible under our analysis in State v. Wright, supra, of the rule and exceptions as set out in the statute. The record here fails to show that the precise issue was ever framed in a manner so as to clearly call for a ruling of the trial court.\nThe record shows the state never intended to offer the automobile theft conviction, but only the two convictions for combined burglary and larceny as to which there was no objection as to dissimilarity or irrelevancy by defendant. In fact, the burglary and larceny counts, as described in the information, showed a method of operation similar in a number of respects with the evidence of the burglary and larceny charged against defendant herein. The state made no attempt to show the automobile theft conviction to be admissible under any of the enumerated exceptions of the statute since only the admission of the burglary and larceny convictions was proposed.\nThe colloquy between court and counsel discloses that the state was to read to the jury from the journal entry and information only those portions relating to the burglary and larceny counts and the balance pertaining to the automobile theft was to be \"blocked out\" before the documents were submitted to the jury. At this point, defendant's counsel stated his position to be that the documents must be admitted in their entirety or not at all. The trial court then went along with the insistence of defendant's counsel, but recognized 645 the irrelevancy of the automobile theft conviction by immediately giving the jury an oral instruction to totally disregard it, followed by a written instruction to the same effect.\nWhile the action of the trial court falls short of good practice, we do not believe, under the circumstances prevailing the procedure adopted amounted to reversible error.\nWe can only surmise as to the reason for the adoption of such procedure by defendant's counsel. Whether it was a trial tactic injected for fear the jury might be more unfavorably impressed by receiving a document partly \"blocked out,\" than by being informed as to its total content and then instructed to disregard the irrelevant portion, or for some other purpose of trial strategy, we are not informed. Whatever the reason for taking his position, defendant cannot change it and thereby entrap the trial court in error. The manner in which defendant posed his objection here is insufficient to serve as a basis for establishing error requiring a new trial.\nThe previously established practice in this state is restated in K.S.A. 60-404 which provides in substance that no verdict shall be set aside or judgment based thereon be reversed because of erroneously admitted evidence unless the record reveals an objection timely interposed and so stated as to make clear the specific ground of objection. See also State v. Jolly, 196 Kan. 56, 410 P.2d 267.\nIt appears defendant's objection was directed at the separation of the records of the prior convictions, rather than specifically to the admissibility of the automobile theft conviction.\nThe specification of an objection to evidence on one ground waives or estops the objector from making an objection on any other ground. (23A C.J.S., Criminal Law, § 1077, pp. 58 and 61; 53 Am. Jur., Trial, § 137, p. 121.)\nIf the intendment of defendant's objection was misconstrued by the trial court no effort to clarify the matter is revealed by the record. If defendant's actual complaint concerned the method proposed by the trial court in \"blocking out\" from the documents the automobile theft count, defendant could have called the court's attention to the matter and suggested another means of deleting the objectional portion concerning the automobile theft conviction.\nThe necessity of maintaining an objection until a ruling is had was noted in the recent case of State v. Childs, 198 Kan. 4, 422 P.2d 898, where it was stated:\n\"... Despite the objection, the defendant did not insist that the court 646 make a ruling thereon, and thus may be said to have waived his objection to the testimony. (53 Am. Jur., Trial, § 143.) ...\" (p. 11.)\nOn the basis of this record, we are of the opinion the trial court committed no reversible error in the particulars complained of by defendant.\nThe judgment is affirmed.\n", "ocr": false, "opinion_id": 2619611 } ]	Supreme Court of Kansas	Supreme Court of Kansas	S	Kansas, KS
5,771	DeMOSS, Garza, Higginbotham, Reynaldo	1993-07-12	false	walker-v-braus	Walker	Walker v. Braus	Sharon Joyce WALKER, Widow of Wade J. Trahan, on Her Own Behalf & on Behalf of Her Minor Children, Jason Wayne Trahan & Josh Michael Trahan, Plaintiff-Appellee, Cross-Appellant, v. Armogene BRAUS, Et Al., Defendants, Terra Resources, Defendant-Appellant, Cross-Appellee	Guy E. Wall and James L. Weiss, Gordon, Arata, McCollam & Duplantis, New Orleans, LA, for appellant., Herbert W. Barnes, Samanie, Barnes & Allen, Houma, LA, for appellee.	null	null	null	null	null	null	null	null	null	null	1	Published	null	<parties id="b187-7"> Sharon Joyce WALKER, widow of Wade J. Trahan, on her own behalf & on behalf of her minor children, Jason Wayne Trahan & Josh Michael Trahan, Plaintiff-Appellee, Cross-Appellant, v. Armogene BRAUS, et al., Defendants, Terra Resources, Defendant-Appellant, Cross-Appellee. </parties><br><docketnumber id="b187-10"> No. 92-3509. </docketnumber><br><court id="b187-11"> United States Court of Appeals, Fifth Circuit. </court><br><decisiondate id="b187-13"> July 14, 1993. </decisiondate><br><attorneys id="b188-26"> <span citation-index="1" class="star-pagination" label="78"> *78 </span> Guy E. Wall and James L. Weiss, Gordon, Arata, McCollam & Duplantis, New Orleans, LA, for appellant. </attorneys><br><attorneys id="b188-27"> Herbert W. Barnes, Samanie, Barnes & Allen, Houma, LA, for appellee. </attorneys><br><judges id="b188-29"> Before REYNALDO G. GARZA, HIGGINBOTHAM, and DeMOSS, Circuit Judges. </judges>	[ "995 F.2d 77" ]	[ { "author_str": "DeMOSS", "per_curiam": false, "type": "010combined", "page_count": 7, "download_url": "http://www.ca5.uscourts.gov/opinions\\pub\\92/92-3509.CV0.wpd.pdf", "author_id": null, "opinion_text": " United States Court of Appeals,\n\n Fifth Circuit.\n\n No. 92-3509.\n\n Sharon Joyce WALKER, widow of Wade J. Trahan, on her own behalf & on behalf of her minor\nchildren, Jason Wayne Trahan & Josh Michael Trahan, Plaintiff-Appellee, Cross-Appellant,\n\n v.\n\n Armogene BRAUS, et al., Defendants,\n\n Terra Resources, Defendant-Appellant, Cross-Appellee.\n\n July 14, 1993.\n\nAppeals from the United States District Court for the Eastern District of Louisiana.\n\nBefore REYNALDO G. GARZA, HIGGINBOTHAM, and DeMOSS, Circuit Judges.\n\n DeMOSS, Circuit Judge:\n\n I.\n\n In 1987, Terra Resources, Inc. (Terra) acquired a Louisiana oil and gas field and sent Harold\n\nDeLeon to that location to oversee the facility. DeLeon was the only full-time employee of Terra\n\nassigned to Louisiana.\n\n Terra contracted with Action Oil Field Services (Action) to provide labor to assist Terra in\n\nwork in the oil fields. Action employees reported to Mr. Glynn Warr, the production foreman for\n\nAction. Action paid the employees for their labor and furnished any tools needed for a job.\n\n Armogene Braus was the owner of three twenty-five foot aluminum crew boats that he rented\n\nout by verbal agreement on a day rate basis to various companies. Braus kept the boats on trailers\n\nin his yard at his home.\n\n In June of 1987, Terra began using Braus's boat rental services to transport the Action\n\nworkers to the oil field. Although DeLeon would sometimes accompany Braus on the boat and\n\nwould occasionally drive the boat, Braus operated his own boat to transport men and equipment. Mr.\n\nBraus was free to charter his vessel to anyone else when it was not in use for Terra.\n\n The verbal charter agreement between Terra and Braus provided that Braus had total\n\nresponsibility for upkeep and maintenance, breakdowns and insurance on his boats. The daily rate\n\ffor the boat depended upon whether Braus operated it. Terra was to pay for the fuel. Braus testified\n\nthat he used two different invoices for bareboat and time charters.\n\n In early January 1988, Braus provided transportation to Terra for four days and submitted a\n\n\"time charter\" invoice to Terra for a total of $600 for boat and operator.\n\n On January 5, 1988, while Braus was transporting four Action employees to the oil field to\n\nperform a job for Terra, his crew boat collided on a Louisiana inland waterway with a bass fishing\n\nboat owned and operated by Wade J. Trahan, the plaintiff's decedent. Braus was operating the boat.\n\nThe Trahan's craft, traveling at an excessive rate of speed, struck the defendants' boat—killing Mr.\n\nTrahan instantly. The accident occurred on a sharp bend in the waterway, where there was a blind\n\nspot that made it very difficult to see approaching water traffic on the other side of the bend.\n\n Trahan was the sole occupant of his boat. Braus and his passengers were in an enclosed\n\ncompartment in Braus's craft, which reduced their ability to hear and see approaching vessels.\n\nDeLeon was not on Braus's boat at the time of the accident.\n\n The weather was clear and cold on the day of the accident. There was testimony that\n\nestablished the Trahan vessel was planing, thus, it was estimated that it was traveling at least 20 mph.\n\nThe passengers on the Braus vessel had only enough time to shout \"lookout\" before Trahan's vessel\n\nstruck theirs.\n\n On March 4, 1988, Sharon Joyce Walker Trahan, on her own behalf and on behalf of her two\n\nminor children, filed this general maritime action under Fed.R.Civ.P. 9(h) against Armogene Braus\n\nand Terra Resources, Inc. to recover damages for the wrongful death of her husband, Wade Trahan.\n\nBraus filed a counterclaim to recover damages to his boat against the estate of Wade Trahan and\n\nTrahan's insurer, State Farm Fire and Casualty Company.\n\n The trial court bifurcated the trial on the issues of liability and damages. Liability was tried\n\non August 27, 1990 before the district court without a jury. The court determined that: (i) Trahan\n\nwas 70 percent contributorily negligent for piloting his craft at an excessive speed on an unsafe\n\ncourse; (ii) Trahan was 10 percent contributorily negligent for failing to maintain an adequate\n\nlookout; (iii) The Braus vessel was 10 percent at fault for failing to maintain an adequate lookout;\n\fand (iv) The Braus vessel was 10 percent at fault for failing to sound its horn when approaching the\n\nblind corner.\n\n On April 8, 1991, the court entered findings of fact and conclusions of law assessing 80\n\npercent of the fault against Trahan and 20 percent against Terra. The court said nothing about\n\nliability of Braus.\n\n The court found in its finding of facts that because the four Action employee passengers on\n\nboard the Braus vessel were embarked on a job for Terra on the day of the accident, they were Terra's\n\nemployees that day. There was testimony at the trial that the Action employees kept a lookout for\n\nother vessels and helped in doing deck hand chores such as tying up or launching the vessel. This led\n\nthe court to conclude that Terra supplied the crew for the Braus vessel.\n\n The court then discussed the relationship between Terra and Braus. It noted: (i) Braus only\n\ntraveled with the vessel when Terra needed a driver; (ii) Terra gave Braus his instructions; (iii) The\n\ncrew was supplied by Terra; (iv) Terra paid for operating expenses; (v) The charter was for an\n\nindefinite period; and (vi) The vessel was at Terra's complete disposal. The court noted Braus's\n\ntestimony that when he was o n his vessel he was responsible. However, the court still concluded\n\nultimately that Terra was a demise or bareboat charterer of the Braus vessel.\n\n The damages phase of the trial was held on February 6, 1992. On May 1, 1992, the trial court\n\nentered findings of fact and conclusions of law in which plaintiff's damages were assessed at $160,000\n\nfor loss of society, $87,831.19 for loss of support from the date of the accident until trial,\n\n$271,612.56 for future loss of support and $5,270 for funeral expenses, all of which were then\n\nreduced by the 80 percent fault attributed to Wade Trahan.\n\n Terra and Trahan have each taken this interlocutory admiralty appeal of the court's findings\n\nas follows:\n\n 1. Terra contends that the district court erred in concluding that Terra was a demise\n charterer.\n\n 2. Terra contends that the district court erred in awarding consortium damages to a\n nonlongshoreman in inland waters.\n\n 3. Terra and Trahan claim that the district court did not award the proper amount of\n consortium damages.\n\f 4. Trahan argues that the Coast Guard accident report was not properly admitted into\n evidence.\n\n 5. Trahan alleges that the court did not properly allocate the fault percentages.\n\n We hold that the trial court's finding that Terra was a demise charterer of the Braus's boat is\n\nclearly erroneous and reverse and render as to the judgment against Terra and REMAND the case\n\nto the district court for such further proceedings as may be appropriate against all other parties to this\n\ncause.\n\n Since the issue of consortium damages may well come up again in the further proceedings,\n\nwe suggest to the trial court that recent case law developments indicate that the trend is to eliminate\n\nconsortium damages across the board in maritime cases.\n\n II.\n\nDid The District Court Err In Concluding That Terra Was A Demise Charterer.\n\n A district court's determination of facts in an admiralty case may not be set aside unless\n\nclearly erroneous. Fed.R.Civ.P. 52(a). E.g., Johnson v. Offshore Exp., Inc., 845 F.2d 1347 (5th\n\nCir.), cert. denied, 488 U.S. 968, 109 S. Ct. 497, 102 L. Ed. 2d 533 (1988). A finding is clearly\n\nerroneous when, although there is evidence to support it, the reviewing court based on all of the\n\nevidence is left with the definite and firm conviction that a mistake has been committed. E.g.\n\nConsolidated Grain & Barge Co. v. Marcona Conveyor Corp., 716 F.2d 1077, 1082 (5th Cir.1983).\n\n The clearly erroneous standard of review does not apply to factual findings made under an\n\nerroneous view of controlling legal principles. Delta S.S. Lines, Inc. v. Avondale Shipyards, Inc., 747\n\nF.2d 995, 1000 (5th Cir.1984). Nor does the clearly erroneous standard apply to decisions made by\n\ndistrict court judges when they apply legal principles to essentially undisputed facts. United States\n\nv. Singer Mfg. Co., 374 U.S. 174, 194, 83 S. Ct. 1773, 1783, 10 L. Ed. 2d 823 (1963).\n\n Mixed questions of fact and law are subject to broad appellate review. Amoco Transport.\n\nCo. v. S/S Mason Lykes, 768 F.2d 659, 663 (5th Cir.1985).\n\n A \"charter\" is an arrangement whereby one person (the \"charterer\") becomes entitled to the\n\nuse of the whole of a vessel belonging to another (the \"owner\"). There are essentially two types of\n\ncharters: the voyage or time charter and the bareboat or demise charter.\n\f In a t ime charter the vessel owner retains possession and control of the vessel; provides\n\nwhatever crew is needed and is responsible for normal operating expenses. Further, in a time charter\n\nthe owner fully equips and maintains the vessel, makes repairs as needed and provides insurance on\n\nthe vessel.\n\n Generally the charterer's use of the vessel is limited under a voyage charter to a particular\n\nvoyage between two defined points and under a time charter to a defined period of time. Since the\n\nprincipal purpose of a time or voyage charter is to move cargo owned by the charterer or to transport\n\npeople who are employed by or performing work for the charterer, the courts have frequently\n\ncompared a voyage or time charter to a contract of affreightment. The charterer pays a stated fee for\n\nthe transportation services involved.\n\n Under a bareboat or demise charter, on the other hand, the full possession and control of the\n\nvessel is transferred to the charterer. The stated consideration for a demise charter is payable\n\nperiodically but without regard to whether the charterer uses t he vessel gainfully or not. Under a\n\nbareboat or demise chart er the vessel is transferred without crew, provisions, fuel or supplies, i.e.\n\n\"bareboat\"; and when, and if, the charterer operates the vessel he must supply also such essential\n\noperating expenses. Because the charter's personnel operate and man the vessel during a demise\n\ncharter, the charterer has liability for any and all casualties resulting from such operation and therefore\n\nprovides insurance for such liability.\n\n In Agrico Chemical Co. v. M/V Ben Martin, 664 F.2d 85 (5th Cir.1981), Judge Rubin\n\ndiscussed the requirements for a demise charter and stated \"a ... demise charter requires complete\n\ntransfer of possession, command, and navigation of the vessel from the owner to the charterer.\" Id.\n\nat 91 (citing Gaspard v. Diamond D. Drilling Co., 593 F.2d 605, 606 (5th Cir.1979). Further, Judge\n\nRubin stated that \"a demise is tantamount to, though just short of, an outright transfer of ownership.\"\n\nAgrico, 664 F.2d at 91 (citing Guzman v. Pichirilo, 369 U.S. 698, 700, 82 S. Ct. 1095, 1096, 8\n\nL. Ed. 2d 205 (1962)).\n\n This Court in Gaspard Id. found that where a drilling company had a verbal agreement with\n\na crew boat operator to ferry drilling employees to their work site, the agreement was a time charter,\n\fnot a demise charter. The Court in that case relied upon the facts that the crew boat operator never\n\nsurrendered possession, command or navigation of the boat; maintained the vessel; operated and\n\nnavigated it; supplied the crews; insured it; and paid for all repairs. The limited amount of control\n\nthat the drilling company exercised over the boat operator was insufficient to overcome the\n\npresumpt ion of a time charter. Thus, the law is well settled in this Circuit that the type of\n\narrangement Terra had with Braus was for ferry or taxi service, or time charter; and, therefore, not\n\na bareboat charter.\n\n Trahan relies principally on, Federal Barge Lines, Inc. v. SCNO Barge Lines, Inc., 711 F.2d\n\n110 (8th Cir.1983), in defending the district court's demise charter finding. While the court in SCNO\n\ndid find a demise charter in a situation where the owner provided a vessel complete with crew, it did\n\nso on the basis of a comprehensive written charter agreement which expressly stated the parties'\n\nintention to have a \"full demise\" charter and that the charterer would be \"responsible for the\n\nnavigation and operation of the vessel and direction of the crew.\" See Id. 111-112. We do not find\n\nthe SCNO case persuasive on its facts or controlling in this in this Circuit.\n\n Trahan also contends that the characterization of the charter is irrelevant because in either\n\ncase Terra may be held liable on a borrowed servant theory. The problem with such contention is that\n\nthe trial court did not find that Braus was a borrowed servant for Terra. And even if it had, the facts\n\nof this case would not support a finding that the borrowed servant doctrine is applicable. See Ruiz\n\nv. Shell Oil co., 413 F.2d 310 (5th Cir.1969).\n\nDid The District Court Err In Awarding Consortium Damages to A Nonlongshoreman In Inland\nWaters?\n\n The recoverability of damages for loss of consortium is a legal question that is reviewed de\n\nnovo. Pullman-Standard v. Swint, 456 U.S. 273, 287, 102 S. Ct. 1781, 1789, 72 L. Ed. 2d 66 (1982).\n\n Terra relies principally on Miles v. Apex Marine Corp., 498 U.S. 19, 111 S. Ct. 317, 112\n\nL. Ed. 2d 275 (1990), in support of its argument that consortium damages are not recoverable for\n\nwrongful death actions in territorial waters. The Miles court held that loss of society damages are\n\nnot recoverable in a general maritime action for death of a Jones Act seaman. Our Court has already\n\nextended Miles to preclude recovery for loss of society in a general maritime action involving\n\fpersonal injuries to a seaman. Michel v. Total Transportation, Inc., 957 F.2d 186, 191 (5th\n\nCir.1992); Murray v. Anthony J. Bertucci Construction Co. Inc., 958 F.2d 127 (5th Cir.1992), cert.\n\ndenied, --- U.S. ----, 113 S. Ct. 190, 121 L. Ed. 2d 134 (1990).\n\n The Supreme Court has clearly indicated its desire to achieve uniformity of damage recoveries\n\nin the exercise of admiralty jurisdiction. Allowing Trahan to recover loss of consortium damages\n\nwould directly contradict the policy of uniformity emphasized and relied on by the Court in Miles;\n\nand with out expressly so deciding at this time, we acknowledge the strength of the argument that\n\ndamages for loss of society may no longer be permitted in a general maritime wrongful death action\n\ninvolving the operator of a fishing boat.\n\n III.\n\n CONCLUSION\n\n The trial court erred in concluding that Terra was a bareboat charterer because the factors\n\nrelied upon by the court were legally insufficient to create such a charter. Accordingly the judgment\n\nof the trial court imposing liability upon Terra is REVERSED and RENDERED.\n\n The case is REMANDED to the trial court for such other and further proceedings as may be\n\nappropriate.\n\f", "ocr": false, "opinion_id": 5771 } ]	Fifth Circuit	Court of Appeals for the Fifth Circuit	F	USA, Federal
2,619,640	Hathaway	1969-11-04	false	in-re-one-1965-ford-mustang	In Re One 1965 Ford Mustang	In Re One 1965 Ford Mustang	null	null	null	null	null	null	null	null	null	null	null	null	3	Published	null	null	[ "455 P.2d 995", "10 Ariz. App. 45" ]	[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 6209, "opinion_text": "\n10 Ariz. App. 45 (1969)\n455 P.2d 995\nIn the Matter of ONE 1965 FORD MUSTANG, Motor No. 5RO7A242628, License No. HGH-968.\nSTATE of Arizona, Appellant,\nv.\nRose I. LEWIS, Appellee.\nNo. 1 CA-CIV 776.\nCourt of Appeals of Arizona.\nJuly 1, 1969.\nRehearing Denied September 5, 1969.\nReview Granted November 4, 1969.\n46 Robert K. Corbin, Maricopa County Atty., Ronald W. Meyer, Deputy County Atty., Phoenix, for appellant.\nKramer, Roche, Burch, Streich & Cracchiolo, by B. Michael Dann, Phoenix, for appellee.\nHATHAWAY, Judge.\nThe State appeals from a ruling that A.R.S. § 36-1041 et seq., is unconstitutional because no provision is made for an innocent owner's avoidance of forfeiture of an automobile used for transportation of narcotics. A.R.S. § 36-1041 states:\n\"The interest of the legal owner or owners of record of any vehicle used to transport unlawfully a narcotic drug, or in which a narcotic drug is unlawfully kept, deposited or concealed, or in which a narcotic is unlawfully possessed by an occupant, shall be forfeited to the state.\"\nThe appellee, Rose I. Lewis, often allowed her son, Michael, to use her 1965 Ford Mustang. On April 13, 1967, while using the automobile with his mother's consent, Michael met with an undercover agent for the Arizona State Department of Liquor Licenses and Control, at Uptown Plaza Shopping Center in Phoenix and arranged to secure for the agent a lid of marijuana to be delivered to him the following day. Using his mother's Mustang, Michael delivered the marijuana as arranged. He was later arrested and charged with sale of marijuana and the Ford Mustang was seized by the State. No question of entrapment is raised.\nThe State's position is that the statute is constitutional and the judgment of the trial court should be reversed. The contention is made that a motor vehicle forfeiture action is an action in rem and is directed against the property itself, quoting the general rule concerning forfeitures from 23 Am.Jur. Forfeiture & Penalties § 6, p. 603:\n\"Our statutes providing for forfeitures have been, since the earliest days of our history as a nation acting under the Constitution and congressional laws, proceedings in rem, the policy of which is confiscation and forfeiture to the government directed against property itself. The ancient doctrine requiring conviction of a personal offender does not apply to seizures and forfeitures created by statutes in rem, for the reason that the thing in such a case is primarily considered as the offender, or rather that the offense is attached primarily to the thing, whether the offense is malum prohibitum or malum in se.\" (Emphasis added.)\nHistorically, forfeiture proceedings have been deemed to be civil proceedings in rem. 23 Am.Jur. Forfeiture & Penalties § 14, p. 611. The acts and declarations of the person in control of the vehicle, with the consent of the owner, bind the vehicle and the owner. People v. One 1948 Chevrolet Convertible Coupe, Engine No. FAA 433685, 45 Cal.2d 613, 290 P.2d 538, 55 A.L.R.2d 1272 (1955).\nThe United States Supreme Court has held that the rule of exclusion of evidence obtained through an unreasonable search and seizure is applicable to State proceedings for the forfeiture of an automobile used for illegal transportation of liquor, where such proceedings require the determination that the criminal law has been violated and where the forfeiture may impose a greater penalty than is provided for conviction of the criminal offense. One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965). The court acknowledges Justice Bradley's observation from Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), that \" * * a forfeiture proceeding is quasi-criminal in character.\"\nWe are of the opinion, however, that another decision from our nation's Supreme *47 Tribunal is more akin to the problem presented. In Van Oster v. Kansas, 272 U.S. 465, 47 S.Ct. 133, 71 L.Ed. 354, 47 A.L.R. 1044 (1926), the court upheld the constitutionality of a statute authorizing forfeiture of an automobile entrusted to a bailee who used it for the unlawful transportation of intoxicating liquor. The unlawful use was without the knowledge or consent of the owner. Justice Stone most aptly pointed out:\n\"It is not unknown, or indeed uncommon, for the law to visit upon the owner of property the unpleasant consequences of the unauthorized action of one to whom he has intrusted it. Much of the jurisdiction in admiralty, so much of the statute and common law of liens as enables a mere bailee to subject the bailed property to a lien, the power of a vendor of chattels in possession to sell and convey good title to a stranger, are familiar examples. They have their counterpart in legislation imposing liability on owners of vehicles for the negligent operation by those intrusted with their use, regardless of a master-servant relation. (citations omitted) They suggest that certain uses of property may be regarded so undesirable that the owner surrenders his control at his peril. The law thus builds a secondary defense against a forbidden use and precludes evasions by dispensing with the necessity of judicial inquiry as to collusion between the wrongdoer and the alleged innocent owner. So here the legislature, to effect a purpose clearly within its power, has adopted a device consonant with recognized principles and therefore within the limits of due process.\"\n47 S.Ct. at 134.\nThe record in the case at bench does not disclose the degree of care exercised by appellee in permitting her son's unsupervised use of the vehicle, except as shown circumstantially through the aftermath. Be that as it may, a salutary purpose may be served through the \"secondary defense\" underlying our forfeiture statute and referred to by Justice Stone. The risk of loss imposed on the \"innocent\" ownerparent should tend to enlist interest and aid from otherwise indifferent parents in supervising their children. To engraft an exception into the statute permitting appellee's avoidance of the forfeiture would elevate property rights above filial responsibilities.\nThe judgment is reversed.\nMOLLOY and KRUCKER, JJ., concur.\nNOTE: This cause was decided by the Judges of Division Two as authorized by A.R.S. § 12-120, subsec. E.\n", "ocr": false, "opinion_id": 2619640 } ]	Court of Appeals of Arizona	Court of Appeals of Arizona	SA	Arizona, AZ
2,619,699	Gray, Harns-Berger, Harnsberger, McINTYRE, Parker	1964-10-29	false	hansen-v-smith	Hansen	Hansen v. Smith	Governor Clifford P. HANSEN, Secretary of State Thyra Thomson, State Auditor Minnie Mitchell, State Treasurer Everett Copenhaver, State Superintendent of Public Instruction Cecil Shaw, as Individuals and as the Wyoming Liquor Commission, and Carl Harms, Director of the Wyoming Liquor Commission, Appellants (Defendants Below), v. Eugene P. SMITH Et Al., Individually and as Representatives of All Licensed Beer Wholesalers of Wyoming, a Class, Appellees (Plaintiffs Below); Eugene P. SMITH Et Al., Individually and as Representatives of All Licensed Beer Wholesalers of Wyoming, a Class, Appellants (Plaintiffs Below) v. Governor Clifford P. HANSEN, Secretary of State Thyra Thomson, State Auditor Minnie Mitchell, State Treasurer Everett Copenhaver, State Superintendent of Public Instruction Cecil Shaw, as Individuals and as the Wyoming Liquor Commission, and Carl Harms, Director of the Wyoming Liquor Commission, Appellees (Defendants Below)	John F. Raper, Atty. Gen., Sterling A. Case, Asst. Atty. Gen., Dean W. Borth-wick, Deputy Atty. Gen., Cheyenne, for appellants (defendants below)., Roncalio, Graves & Smyth, John R. Smyth, Cheyenne, for appellees (plaintiffs, below).	null	null	null	null	null	null	null	null	null	null	3	Published	null	<parties id="b976-3"> Governor Clifford P. HANSEN, Secretary of State Thyra Thomson, State Auditor Minnie Mitchell, State Treasurer Everett Copenhaver, State Superintendent of Public Instruction Cecil Shaw, as individuals and as the Wyoming Liquor Commission, and Carl Harms, Director of the Wyoming Liquor Commission, Appellants (Defendants below), v. Eugene P. SMITH et al., individually and as representatives of all licensed Beer Wholesalers of Wyoming, a class, Appellees (Plaintiffs below). Eugene P. SMITH et al., individually and as representatives of all licensed Beer Wholesalers of Wyoming, a class, Appellants (Plaintiffs below) v. Governor Clifford P. HANSEN, Secretary of State Thyra Thomson, State Auditor Minnie Mitchell, State Treasurer Everett Copenhaver, State Superintendent of Public Instruction Cecil Shaw, as individuals and as the Wyoming Liquor Commission, and Carl Harms, Director of the Wyoming Liquor Commission, Appellees (Defendants below). </parties><br><docketnumber id="b976-9"> Nos. 3260, 3261. </docketnumber><br><court id="b976-10"> Supreme Court of Wyoming. </court><br><decisiondate id="b976-11"> Oct. 29, 1964. </decisiondate><br><attorneys id="b976-18"> John F. Raper, Atty. Gen., Sterling A. Case, Asst. Atty. Gen., Dean W. Borth-wick, Deputy Atty. Gen., Cheyenne, for appellants (defendants below). </attorneys><br><attorneys id="b976-19"> Roncalio, Graves & Smyth, John R. Smyth, Cheyenne, for appellees (plaintiffs, below). </attorneys><br><judges id="b976-20"> Before PARKER, C. J., and HARNS-BERGER, GRAY and McINTYRE, JJ. </judges>	[ "395 P.2d 944" ]	[ { "author_str": "Harnsberger", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n395 P.2d 944 (1964)\nGovernor Clifford P. HANSEN, Secretary of State Thyra Thomson, State Auditor Minnie Mitchell, State Treasurer Everett Copenhaver, State Superintendent of Public Instruction Cecil Shaw, as individuals and as the Wyoming Liquor Commission, and Carl Harms, Director of the Wyoming Liquor Commission, Appellants (Defendants below),\nv.\nEugene P. SMITH et al., individually and as representatives of all licensed Beer Wholesalers of Wyoming, a class, Appellees (Plaintiffs below).\nEugene P. SMITH et al., individually and as representatives of all licensed Beer Wholesalers of Wyoming, a class, Appellants (Plaintiffs below)\nv.\nGovernor Clifford P. HANSEN, Secretary of State Thyra Thomson, State Auditor Minnie Mitchell, State Treasurer Everett Copenhaver, State Superintendent of Public Instruction Cecil Shaw, as individuals and as the Wyoming Liquor Commission, and Carl Harms, Director of the Wyoming Liquor Commission, Appellees (Defendants below).\nNos. 3260, 3261\nSupreme Court of Wyoming.\nOctober 29, 1964.\nJohn F. Raper, Atty. Gen., Sterling A. Case, Asst. Atty. Gen., Dean W. Borthwick, Deputy Atty. Gen., Cheyenne, for appellants (defendants below).\nRoncalio, Graves & Smyth, John R. Smyth, Cheyenne, for appellees (plaintiffs below).\nBefore PARKER, C.J., and HARNSBERGER, GRAY and McINTYRE, JJ.\nMr. Justice HARNSBERGER delivered the opinion of the court.\nThe plaintiffs, all of whom are beer wholesalers licensed by the State of Wyoming, brought a class action for themselves and as representatives of all licensed beer wholesalers of Wyoming, against the five elective state executive officers in their capacity as the Wyoming Liquor Commission and also as individuals, joining as defendants with them the Director of the Wyoming Liquor Commission. Plaintiffs sought to restrain the liquor commission from collecting a sales tax of six cents a gallon on malt liquor and beer, and to limit the liquor commission to collecting only two cents per gallon on malt liquor and beer until a final determination was made of the constitutionality of what appears as § 12-5, W.S. 1957, as amended and re-enacted by Ch. 194, § 3, S.L. of Wyoming, 1963, at pp. 359, 360, and, in the alternative, that a receiver be appointed to collect from plaintiffs four cents per gallon on all malt liquor and beer sold by them in this State, investing such collections in a depository where a reasonable rate of interest would be paid upon those funds during the pendency of the action, plaintiffs paying directly to the liquor commission only two cents per gallon on 945 malt liquor and beer sold by them in Wyoming until final determination was made of the constitutionality of the amendatory and re-enacted section of the statute, and for a judgment declaring unconstitutional the amendatory and re-enacted section of the statute.\nFollowing defendants' motion to dismiss for failure to state a claim upon which relief could be granted, the parties stipulated the facts, the district court made findings of fact and decreed there be reserved and sent to this court as an important and difficult question:\n\"Is Chapter 194, Wyoming Session Laws, 1963, unconstitutional on its face or in its passage in contravention of one of [sic] more of the following:\n\"Section 6, Article 1, Wyoming Constitution Section 20, Article III, Wyoming Constitution Section 23, Article III, Wyoming Constitution Section 24, Article III, Wyoming Constitution Section 28, Article III, Wyoming Constitution Section 33, Article III, Wyoming Constitution, Section 13, Article XV, Wyoming Constitution, and Section 1, Fourteenth Amendment to the Constitution of the United States?\"\nThe district court also denied plaintiffs' application for preliminary injunction but directed defendants to retain in their depository banks four cents of every six cents of tax collected on malt liquor on and after May 18, 1963, and not to relinquish that portion of those monies until further order of the court.\nBy its opinion and decision, this court thereafter declared Ch. 194, S.L. of Wyoming, 1963, to be unconstitutional and in violation of Art. 3, §§ 20 and 24, Wyoming Constitution, and remanded the cause for further proceedings in the District Court of Laramie County, Wyoming, where the trial court then rendered judgment for plaintiffs and against defendants; held that Ch. 194, S.L. of Wyoming, 1963, violated Art. 3, § 20, of the Wyoming Constitution; permanently enjoined defendants from collecting more than a two-cents-per-gallon tax on malt liquor; ordered the Director of the Wyoming State Liquor Commission to return all tax on malt liquor retained in depository banks, to the persons, firms, and corporations in the amount of tax paid by each of said persons, firms, or corporations during the pendency of the action; and ordered such refunds to commence January 15, 1964, and be completed as soon as possible thereafter.\nDefendants moved to amend the judgment, and an instrument entitled \"Amended Order\" and a further instrument entitled \"Order Nunc Pro Tunc\" were then entered, the total effect of which amounted to a denial of the motion to amend.\nThe defendants have appealed from that part of the judgment of the district court which ordered the Director of the Wyoming State Liquor Commission to return all of the money retained in depository banks under order of the court, during the pendency of the action, and which fixed a time to commence and complete such repayments.\nPlaintiffs appeal from the judgment of the district court as amended by the amended order hereinabove referred to.\nWhile appellees in Case No. 3260 ask dismissal of the appeal on the ground that the State was not a party in interest, it is unnecessary to pass upon the matter in view of the decision herein reached.\nStripped of non-essentials, the appeals of both the plaintiffs and the defendants challenge the correctness of the court's direction to return the monies retained in depository banks, pursuant to court order, to each of the persons, firms, or corporations that paid them to the Director of the Wyoming State Liquor Commission and which were deposited in banks rather than being paid into the treasury of the State of Wyoming. The answer is, in fact, very plain, simple, and clear. The only persons interested in this litigation are the parties-plaintiff and defendants. Under the doctrine of \"class representation,\" the parties-plaintiff include both the persons identified by names as such and also those specifically referred to as members of the class of those who actually 946 paid to the State Director of the Wyoming State Liquor Commission the litigated fourcents-per gallon tax. Two cases are particularly significant. In Citizens Banking Co. v. Monticello State Bank, 8 Cir., 143 F.2d 261, 264, the court said:\n\"* * * The purpose of this [class] action is to protect a single trust fund in which no noteholder has a particular or separate interest but in which the interest is common and undivided with rights only of pro rata participation. These plaintiffs are fairly representative of all noteholders. There are no divergent interests among the noteholders as to the purposes of this action. The petition seeks to assert a right common to all noteholders. The situation comes fairly within * * * [citing numerous decisions].\"\nIn Farmers Co-Operative Oil Co. v. Socony-Vacuum Oil Co., D.C.Ia., 43 F. Supp. 735, 737, it is stated:\n\"* * * The purpose of this form of action is to enable the Court to determine finally the rights of a numerous class of individuals by one common final judgment. * * *\"\nSee also Rule 23(a) (2) and (3), Wyoming Rules of Civil Procedure; 39 Am.Jur., Parties, §§ 44-46, pp. 917-921; 14 C.J.S. Class (As an Adjective), p. 1193, nn. 17, 18; 1 Freeman, Judgments, §§ 435, 436, pp. 950-952 (Fifth Ed.); Southern Ornamental Iron Works v. Morrow, Tex.Civ.App., 101 S.W.2d 336, 342; Hann v. City of Clinton, Okl. ex rel. Schuetter, 10 Cir., 131 F.2d 978, 982; Board of Insurance Com'rs v. Highway Insurance Underwriters, Tex. Civ.App., 169 S.W.2d 541, 544; Atwood v. National Bank of Lima, 6 Cir., 115 F.2d 861, 863; Redmond v. Commerce Trust Co., 8 Cir., 144 F.2d 140, 151, certiorari denied 323 U.S. 776, 65 S. Ct. 187, 89 L. Ed. 620, rehearing denied 323 U.S. 819, 65 S. Ct. 557, 89 L. Ed. 650; Weeks v. Bareco Oil Co., 7 Cir., 125 F.2d 84, 88.\nBy court order, all persons, firms, and corporations of the class represented by the specifically-named plaintiffs were required to pay the director of the liquor commission the four-cent tax now declared to have been unconstitutionally and therefore improperly levied. The money so paid was the payors' money. Being improperly exacted from them, it must properly be returned to them together with all interest earned thereon.\nAlthough the lower court, in compliance with the mandate of this court, entered its judgment in favor of plaintiffs and ordered the monies represented by the collections of four-cents-per-gallon tax to be repaid to the same and identical persons from whom they were received, no direction was given as to the disposition of the interest accruing upon those deposits.\nTherefore, the judgment, the amended judgment, and the judgment nunc pro tunc of the district court are affirmed with direction that the trial court make a further amendment of its judgment so as to require repayment of the interest accruals upon the deposited amounts to the persons, firms, and corporations from whom their principal sums were received.\nAffirmed with directions.\n", "ocr": false, "opinion_id": 2619699 } ]	Wyoming Supreme Court	Wyoming Supreme Court	S	Wyoming, WY
1,647,866	Lee	1950-05-08	false	brooks-v-state	Brooks	Brooks v. State	Brooks v. State	W. P. Searcy, Lester Franklin and L. 0. Franklin, Jr., for appellant., George H. Ethridge, Assistant Attorney General, for appellee.	null	null	null	null	null	null	null	null	null	null	62	Published	null	<parties id="b162-7"> Brooks <em> v. </em> State. </parties><court id="Aqj"> In Banc. </court><decisiondate id="A7I"> May 8, 1950. </decisiondate><docketnumber id="AP5"> No. 37374 </docketnumber><citation id="A3t"> (46 So. (2d) 94) </citation><br><attorneys id="b163-14"> <span citation-index="1" class="star-pagination" label="151"> *151 </span> W. P. Searcy, Lester Franklin and L. 0. Franklin, Jr., for appellant. </attorneys><br><attorneys id="b163-16"> George H. Ethridge, Assistant Attorney General, for appellee. </attorneys>	[ "46 So. 2d 94", "209 Miss. 150" ]	[ { "author_str": "Lee", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 4886, "opinion_text": "\n209 Miss. 150 (1950)\n46 So. 2d 94\nBROOKS\nv.\nSTATE.\nNo. 37374.\nSupreme Court of Mississippi, In Banc.\nMay 8, 1950.\nW.P. Searcy, Lester Franklin and L.C. Franklin, Jr., for appellant.\nGeorge H. Ethridge, Assistant Attorney General, for appellee.\nLee, J.\nFrom a verdict of guilty, and a sentence of five years in the penitentiary, on the charge of assault and battery with intent to kill and murder, B.C. Brooks appeals.\nAbout 3 A.M., on January 20, 1949, Winston Blakely, Marshal of the Town of Duck Hill, from the City Hall, 152 saw two men walking down the street. While one was a six-footer, the other was not so tall. He started toward them to find out what they were doing, but they disappeared in a back alley behind the stores. Hearing a noise in a brick store, he flashed his searchlight around the corner of the building, and saw, on the walk about 24 steps away, a man, who was wearing a short coat and a light hat. Blakely called to the man to come out. The response was a pistol shot. Blakely returned the fire. A fusillade of shots ensued, he firing 7, and his assailant 8. When the shooting was over, another man came out of the store, and both of them hurried to a parked car, 65 yards away, and took off at high speed. As this car went around a curve, Blakely noticed that the right taillight alone was burning. It was a cream or light gray Pontiac. When it came back through town a few moments later at like speed, the same condition of the taillight was observed.\nDale Patton's attention was attracted by the shooting. He thought it was a fire signal. He heard the car start and saw it going by his house under a street light. To him it was a white-looking Pontiac with a shiny out-of-state tag, and with the right taillight alone burning. At first he thought it was a patrol car, but, when it ran into a dead-end street and the brakes were applied, he then saw that it was not a patrol car.\nThe alarm was sounded and the officers were on the lookout for such an automobile. But nothing developed until the following February 7th, when a number of officers went to appellant's place at Durant, arrested him, and seized his cream or light gray Pontiac automobile. They drove it to Duck Hill and had Blakely observe it. They also drove the automobile by Patton's place about 3 A.M. so that he could also see it.\nBrooks was incarcerated in the jail at Water Valley. Shortly thereafter, the sheriff examined him in the jail and found a wound in his right shoulder, which he also 153 photographed. In addition, he caused a doctor to make an examination.\nWhile appellant was in jail, the officers went to his place, searched it and procured a .38 caliber pistol and a brown mackinaw coat.\nOn the trial, Blakely identified Brooks as the assailant whom he had seen for an instant by the aid of a searchlight. He further testified that the car obtained by the officers from Brooks looked like the one he saw on the night of the crime. Patton testified that the car driven past his home by the officers, under like circumstances, fit the description of the car in which the assailant had escaped. The coat and the .38 caliber pistol were introduced in evidence. A bullet, dug out of a wall near the place where the shooting occurred, and which was testified to be a .38 caliber, was introduced in evidence, although there was no proof by microscope or ballistic examination that it came out of the .38 caliber pistol, which was introduced in evidence. The evidence further showed that the right taillight burned, but the left was out, and when the brakes were applied, the tag could be seen. The sheriff found a dim track where the car left the scene. While he made no use of moulage at the time, still he was able to keep a mental picture thereof, and, nearly three weeks' later after seizing the automobile, he was positive that the dim track was made by a tire of the Brooks automobile.\nIn the trial of this case, the appellant's constitutional rights were violated in these particulars: (1) The State, in its proof, failed to show any authority for seizure of the Pontiac automobile. Section 23 of our Constitution prohibits unreasonable seizures. See Cofer v. State, 152 Miss. 761, 118 So. 613.\n(2) The State, in its proof, failed to show any authority for the search of Brooks' place, and the seizure of his coat and pistol. Section 23, Mississippi Constitution.\n(3) The State, in its proof, failed to show that Brooks voluntarily submitted to an examination of his person 154 for a bullet wound by the sheriff and by a doctor, and a photograph thereof. Section 26 of our Constitution provides that in criminal cases an accused \"shall not be compelled to give evidence against himself\".\n(4) The automobile having been unlawfully seized, the sheriff's comparison of a tire thereon with the dim track which he had observed at the scene was inadmissible. Again, Section 23 of our Constitution.\nBesides in the cross examination of Brooks, he was asked, \"This place of business you run is a bootlegging establishment, isn't it?\" And, \"It is where you sell whisky isn't it?\" This was highly improper and prejudicial as showing guilt of another crime. Floyd v. State, 166 Miss. 15, 148 So. 226.\nAppellant had employed a lawyer, and such attorney was present during the trial. However, the record fails to show objections to the violation of constitutional and fundamental rights, as pointed out above. As a matter of fact, there is not a single objection in the record, nor was a motion for a new trial made.\nSome time after the trial of the case, appellant secured other counsel, who sought from the trial judge a writ of error coram nobis on the ground that his attorney, at the trial, had made not even a token defense. This petition was overruled. The latter counsel have again submitted this question to the Court, and, in their brief, pray for the issuance of such a writ.\nHowever, in view of the conclusion reached, we do not take up the question of coram nobis at all.\nThis case is a most unusual one. If objections had been made on the questions pointed out above, and such objections had been overruled, a reversal would be obvious. But no objections were made. However, the State has procured this conviction by the introduction of such evidence which was inadmissible because it was obtained in violation of constitutional and fundamental rights. Tucker v. State, 128 Miss. 211, 90 So. 845, 24 A.L.R. 1377; Fulton v. City of Philadelphia, 168 Miss. 155 30, 148 So. 346; Lancaster v. State, 188 Miss. 374, 195 So. 320.\nIf appellant had been without a lawyer, no doubt the trial judge would have intervened on his own motion; but since no objection was made, we assume that he was led to believe that counsel had adopted some strategy of which he was not aware.\n(Hn 1) Errors or omissions jurisdictional in character are exceptions to Section 1987, Code of 1942. Only errors so grave as to deny the defendant the benefit of some fundamental right are considered where a jury, under the law and the evidence, could reach no other verdict than that of guilty. Wexler v. State, 167 Miss. 464, 142 So. 501; Wright v. State, 193 Miss. 119, 8 So. (2d) 455. Constitutional rights in serious criminal cases rise above mere rules of procedure. Fisher v. State, 145 Miss. 116, 110 So. 361; Brown v. State of Mississippi, 297 U.S. 278, 56 S. Ct. 461, 80 L. Ed. 682. Errors affecting fundamental rights are exceptions to the rule that questions not raised in the trial court cannot be raised for the first time on appeal. Carter v. State, 198 Miss. 523, 21 So. (2d) 404.\n(Hn 2) Besides, no person can be deprived of his liberty except by due process of law. Section 14, Article 3, Mississippi Constitution. This prohibition is intended to guarantee the protection of fundamental and constitutional rights, so that a fair trial shall result. Every person is entitled to a fair and impartial trial, and the dispensing of justice is the object of courts. Floyd v. State, supra. Thus, where fundamental and constitutional rights are ignored, due process does not exist, and a fair trial in contemplation of law cannot be had.\nIn Lisenba v. People of State of Calif., 314 U.S. 219, 62 S. Ct. 280, 290, 86 L. Ed. 166, the Supreme Court of the United States aptly said: \"The aim of the requirement of due process is ... to prevent fundamental unfairness in the use of evidence whether true or false.\"\n*156 And again they said: \"As applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice. In order to declare a denial of it we must find that the absence of that fairness fatally infected the trial... .\"\nWe repeat that this is a most unusual case. We neither condone nor reward in action. (Hn 3) But we cannot affirm where due process has been so lacking that a conviction has resulted without proper consideration of constitutional and fundamental rights.\nReversed and remanded.\n", "ocr": false, "opinion_id": 1647866 } ]	Mississippi Supreme Court	Mississippi Supreme Court	S	Mississippi, MS
5,954	DeMOSS, Emilio, Garza, Zagel	1993-09-27	false	federal-deposit-insurance-v-royal-park-no-14-ltd	null	Federal Deposit Insurance v. Royal Park No. 14, Ltd.	FEDERAL DEPOSIT INSURANCE CORPORATION in Its Corporate Capacity as Liquidator of Bank of Dallas, Plaintiff-Appellee, v. ROYAL PARK NO. 14, LTD., Et Al., Defendants-Appellants	Robert L. Kelsoe, Jeffrey R. Clark, Kel-soe, Anderson & Khoury, Dallas, TX, for defendants-appellants., Jerome A. Madden, FDIC, Washington, DC, Michael Robert Swan, FDIC, Legal Div., Dallas, TX, for plaintiff-appellee.	null	null	null	null	null	null	null	null	null	null	9	Published	null	<parties id="b707-5"> FEDERAL DEPOSIT INSURANCE CORPORATION in its Corporate Capacity as Liquidator of Bank of Dallas, Plaintiff-Appellee, v. ROYAL PARK NO. 14, LTD., et al., Defendants-Appellants. </parties><br><docketnumber id="b707-8"> No. 92-1920. </docketnumber><br><court id="b707-9"> United States Court of Appeals, Fifth Circuit. </court><br><decisiondate id="b707-11"> Sept. 29, 1993. </decisiondate><br><attorneys id="b708-6"> <span citation-index="1" class="star-pagination" label="638"> 638 </span> Robert L. Kelsoe, Jeffrey R. Clark, Kel-soe, Anderson & Khoury, Dallas, TX, for defendants-appellants. </attorneys><br><attorneys id="b708-7"> Jerome A. Madden, FDIC, Washington, DC, Michael Robert Swan, FDIC, Legal Div., Dallas, TX, for plaintiff-appellee. </attorneys><br><judges id="b708-9"> Before EMILIO M. GARZA, and DeMOSS, Circuit Judges, and ZAGEL <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="b708-15"> District Judge of the Northern District of Illinois, sitting by designation. </p> </div></div>	[ "2 F.3d 637" ]	[ { "author_str": "DeMOSS", "per_curiam": false, "type": "010combined", "page_count": 7, "download_url": "http://www.ca5.uscourts.gov/opinions\\pub\\92/92-1920.CV0.wpd.pdf", "author_id": null, "opinion_text": "2 F.3d 637\n 26 Fed. R. Serv. 3d 1181\n FEDERAL DEPOSIT INSURANCE CORPORATION in its CorporateCapacity as Liquidator of Bank of Dallas, Plaintiff-Appellee,v.ROYAL PARK NO. 14, LTD., et al., Defendants-Appellants.\n No. 92-1920.\n United States Court of Appeals,Fifth Circuit.\n Sept. 29, 1993.\n \n Robert L. Kelsoe, Jeffrey R. Clark, Kelsoe, Anderson & Khoury, Dallas, TX, for defendants-appellants.\n Jerome A. Madden, FDIC, Washington, DC, Michael Robert Swan, FDIC, Legal Div., Dallas, TX, for plaintiff-appellee.\n Appeal from the United States District Court for the Northern District of Texas.\n Before EMILIO M. GARZA, and DeMOSS, Circuit Judges, and ZAGEL, District Judge.\n DeMOSS, Circuit Judge:\n \n I.\n \n 1\n On November 1, 1985, Royal Park No. 14, Ltd., Royal Park No. 20, Ltd., Royal Park Development Corporation, Inc., G.R. Hay and William G. Jones, Jr. (Royal Park) executed and delivered a promissory note to the Bank of Dallas. Hay and Jones also executed and delivered a guaranty agreement under which they guaranteed payment of the original note and any extensions and renewals. The note was secured by a deed of trust.\n \n \n 2\n Royal Park borrowed the money from the Bank of Dallas to construct a building that it planned to lease. Royal Park claims that the Bank of Dallas did not fund the entire $3,000,000 at loan origination. Instead, Royal Park was to draw on the $3,000,000 amount to pay for construction and tenant finish-out as completed.\n \n \n 3\n During the time period of construction and finding tenants for the building, Royal Park says that it invested $600,000 of its own money into the building project. The note was extended and renewed on November 17, 1987. The Bank of Dallas failed in February, 1988 and the FDIC took over its obligations. Robert Meador, a FDIC vice-president, was in charge of servicing the renewal note. In April 1988, Meador met with Hay and Jones, concerning reworking the renewal note. Hay and Jones requested the FDIC to fund an additional $600,000--$700,000 on the $3,000,000 note, for the purpose of providing tenant finish-out. The additional $600,000--$700,000 was part of the original and renewed amounts that were to be funded by the Bank of Dallas. Royal Park claims that Meador refused to fund the additional money but told Hay and Jones that if they worked toward securing leases for the building wherein the tenants provided their own finish-out, the FDIC would execute a non-disturbance agreement concerning the building leases and discount the renewal note and guaranty obligations to $1,000,000. Royal Park claims that the agreement required Royal Park to secure leases for the building before December 31 at fair market value or above in the approximate same area.\n \n \n 4\n Hay and Jones secured two leases that met all of the requirements under the agreement with Meador so that the FDIC would execute the non-disturbance agreement, and discount the renewal note and guaranty obligations to $1,000,000. However, Royal Park contends, the FDIC refused to perform its obligations under the agreement. Royal Park claims that, relying upon Meador's promises, Hays and Jones worked many hours over a five month period to fulfill their part of the agreement.\n \n \n 5\n The FDIC posted the building for foreclosure, filed notice of foreclosure and served Jones and Hays with notice of foreclosure on January 17, 1989. A certified copy of the notice of sale was mailed to Royal Park pursuant to Sec. 51.002 of the Texas Property Code. A foreclosure sale was conducted by FDIC on the building on February 7, 1989; and the foreclosure bid price was $760,000, which Royal Park claims was substantially less than the value would have been if the building had been leased pursuant to the leases obtained by Royal Park.\n \n \n 6\n Royal Park claims that the reason the renewal note could not be paid was because the FDIC refused to fund the additional monies on the renewal note to be used for tenant finish-out and therefore no income could be received from the project. Royal Park contends that it has suffered injury because it expended substantial effort to secure leases, has been deprived of having the renewal note and guaranty obligation discounted by $1,000,000, and has been deprived of the building's market value increase and the ability to recapitalize the building transaction such that Royal Park would recover its $600,000 cash investment because the FDIC did not comply with its promises.\n \n \n 7\n On May 18, 1992, FDIC filed action seeking a deficiency judgment and moved for summary judgment on July 6, 1992. Royal Park argued that the motion should be denied because FDIC is estopped under the theory of promissory estoppel, Royal Park was not given sufficient notice of the foreclosure sale under Texas law and FDIC was charging a usurious interest rate.1\n \n \n 8\n On September 28, 1992, the district court granted summary judgment for FDIC in the amount of $2,049,296.97 for the outstanding balance on the note of the unpaid principal, plus accrued but unpaid interest in the amount of $865,483.39 as of July 28, 1992, 800 F. Supp. 477.\n \n \n 9\n On appeal, Royal Park contends that the district court erred in holding that FDIC complied with Sec. 51.002(b) of the Texas Property Code in conducting a foreclosure and in holding that Royal Park's estoppel defense had no merit. Royal Park also moved this Court for certification of the Sec. 51.002 state law question to the Supreme Court of Texas under Rule 114 of Tex.R.App.P. and for a stay pending the supreme court's decision.2\n \n \n 10\n We AFFIRM.\n \n II.\n \n 11\n WHETHER THE DISTRICT COURT CORRECTLY HELD THAT FDIC COMPLIED\n \n \n 12\n WITH Sec. 51.002(b) OF THE TEXAS PROPERTY CODE IN\n \n \n 13\n CONDUCTING A FORECLOSURE.\n \n \n 14\n Section 51.002 of the Texas Property Code requires that notice of foreclosure be given at least 21 days before the date of sale of property. It states in relevant part:\n \n \n 15\n (b) Notice of the sale must be given at least 21 days before the date of the sale:\n \n \n 16\n (1) by posting at the courthouse door of each county in which the property is located a written notice designating the county in which the property will be sold;\n \n \n 17\n (2) by filing in the office of the county clerk of each county in which the property is located a copy of the notice posted under Subdivision (1); and\n \n \n 18\n (3) by holder of the debt to which the power of sale is related serving written notice of the sale by certified mail on each debtor who, according to the records of the holder of the debt, is obligated to pay the debt.\n \n \n 19\n The foreclosure notice in this case was posted, filed and served on January 17, 1989. The actual foreclosure sale occurred on February 7, 1989. Royal Park contends that the language of the statute requires that the posting, the filing and the mailing of the notice of foreclosure be at least 21 complete days prior to sale, excluding both the day of notice and the day of sale. Royal Park argues that because the FDIC waited until January 17, to post the notice, either the date of posting or the date of sale would have to be included in the computation of time to conclude that the FDIC's notice complied with the statute. It argues that neither of those days should have been included. Because the date of notice cannot be counted in the twenty-one day waiting period, it claims, FDIC gave only twenty-days notice and thus did not comply with the statute.\n \n \n 20\n Royal Park claims that there are Texas cases and statutes that support its contentions that the \"at least\" language excludes the day before and the day after the specified period of time. See O'Connor v. Towns, 1 Tex 107, 114 (1846); Williams v. City of Angleton, 724 S.W.2d 414, 417 (Tex.App.--Houston [1st Dist.] 1987, no writ); Pollard v. Snodgrass, 203 S.W.2d 641 (Tex.Civ.App.--Amarillo 1947, writ dism'd); Terry Johns Automobiles, Inc. v. State, 721 S.W.2d 488, 489 (Tex.App.--Corpus Christi, 1986, no writ); Wagner v. Urban, 170 S.W.2d 270, 272 (Tex.Civ.App.--Amarillo 1943, no writ); TEX.R.CIV.P. 166(a), (c); TEX.R.CIV.P. 4; and TEX.R.CIV.P. 21. Moreover, Royal Park says, the Texas Supreme Court granted writ of error to specifically construe the at least language of Sec. 51.002 in Bryant v. Texas American Bank-Levelland, 795 S.W.2d 915 (Tex.1990), suggesting that the language provision in that section is confusing and the statute should be interpreted.3\n \n \n 21\n In summary, Royal Park claims that because the notices were not given for the required period of time, the foreclosure was not valid, the FDIC cannot recover a deficiency judgment and defendants are entitled to substantial monetary offsets, Carruth Mortgage Corp. v. Ford, 630 S.W.2d 897, 899 (Tex.App. Houston, 1st Dist.1982, no writ), Tarrant Savings Assoc. v. Lucky Homes, Inc., 390 S.W.2d 473, 475 (Tex.1965); and the entitlement to offsets also creates a fact issue which precludes summary judgment.\n \n \n 22\n Royal Park's argument fails. The law in Texas is that when a statute requires that notice be given by certified mail, as does Sec. 51.002(b) and former article 3810, the date of mailing is considered the date of notice. Valley v. Patterson, 614 S.W.2d 867 at 871 (Tex.Civ.App.1981). The date of notice when given by certified mail is controlled by the mailing date, and not the date on which the letter was received. Id.\n \n \n 23\n The language in Sec. 51.002(b), which provides for \"at least 21 days before the date of sale\", is identical to its predecessor statute, Article 3810. Had the legislation intended to change the language in Article 3810 when it created Sec. 51.002(b), it would have provided the necessary comments and discussion in the newly created statute that would have clarified that a change had indeed occurred. All Texas courts that construed this nearly identical language have held that only the date of sale was excluded in calculating the notice period--not the date of notice. Newman v. Woodhaven Nat'l Bank, 762 S.W.2d 374 (Tex.Civ.App.1981).\n \n \n 24\n The proper method for computing the 21 day period in Texas therefore is to exclude the date of sale, then count backwards 21 days to determine the latest date notice of the foreclosure sale may be given. Here, counting backward 21 days beginning with February 6, 1989, (thus excluding February 7, 1989, the date of the sale), the latest date proper notice of foreclosure could be given was January 17, 1989; and that date is the undisputed date notice of the foreclosure was given. Because the date of posting may be counted in determining the 21 day notice period, the foreclosure sale was held in accordance with Sec. 51.002 of the Texas Property Code.\n \n \n 25\n The Texas cases, statutes and judicial rules of procedure cited by Royal Park wherein the days apparently are counted differently have no application to Texas law concerning notice of a foreclosure sale. Nor do they demonstrate that there is any confusion under Texas law on this issue. Furthermore, Royal Park's argument that the granting of a writ of error in Bryant v. Texas American Bank-Levelland by the Supreme Court of Texas meant the court intended to construe the at least language of Sec. 51.002 has no merit. The mere granting of the writ by the Texas Supreme Court is of no precedential value, nor is it a persuasive indicator that Royal Park's position would ultimately have prevailed in that case.III.\n \n \n 26\n WHETHER THE DISTRICT COURT ERRED IN HOLDING THAT ROYAL\n \n \n 27\n PARK'S ESTOPPEL DEFENSE HAD NO MERIT.\n \n \n 28\n Promissory Estoppel is an affirmative defense in Texas to suits for the collection of indebtedness. The required elements of proof are 1) a promise, 2) foreseeability of reliance thereon by the promisor, and 3) substantial reliance by the promisee to his detriment. English v. Fischer, 660 S.W.2d 521, 524 (Tx.1983).\n \n \n 29\n Royal Park argues that when the FDIC acted in its corporate capacity as receiver, as it did here, its liability must be determined in the same fashion as that of a private party and is subject to the defense of promissory estoppel.\" Federal Deposit Insurance Corporation v. Harrison, 735 F.2d 408, 412 (11th Cir.1984) and Santoni v. Federal Deposit Insurance Corp., 677 F.2d 174, 178 (1st Cir.1982). Royal Park contends that it produced summary judgment proof of each of the promissory estoppel elements and the FDIC has not established any defense to promissory estoppel and therefore there are fact issues concerning their promissory estoppel defense.\n \n \n 30\n The district court, however, held that Royal Park's estoppel defense failed because the alleged misrepresentations of the FDIC official were unauthorized. FDIC v. Spain, 796 F. Supp. 241, 245 (W.D.Tex.1992). It concluded that Royal Park's assertion of promissory estoppel was inappropriate because Texas courts have held that the Credit Committee of the FDIC is the only body which has authority to renegotiate or settle a loan. The district court found that Meador, as a liquidation assistant for FDIC, acted beyond the scope of his authority in making oral representations regarding Defendants' loan renegotiation.\n \n \n 31\n The district court also found that Royal Park's estoppel defense failed to \"show that their reliance on the vice president's representations was reasonable,\" because \"[i]t has long been held that erroneous oral representations from a government agent, without more, are insufficient to prove the element of reasonable reliance. Heckler v. Community Health Services of Crawford County, 467 U.S. 51, 65-66, 104 S. Ct. 2218, 81 L. Ed. 2d 42 (1984); Duthu v. Sullivan, 886 F.2d 97, 99 (5th Cir.1989), cert. denied, 496 U.S. 936, 110 S. Ct. 3213, 110 L. Ed. 2d 661 (1990); Jones v. Dept. of Health & Human Services, 843 F.2d 851, 853 (5th Cir.1988).\n \n \n 32\n On appeal, Royal Park first argues that the court's holding is defective because the FDIC did not plead that the alleged misrepresentations were unauthorized as required by Fed.R.Civ.P. 8. Rule 8 addresses the pleading requirements for affirmative claims and the pleading requirements for responses to claims or counterclaims. Estoppel is not part of the FDIC's affirmative case against Royal Park, and Royal Park did not assert its estoppel defense by way of counterclaim. Thus, Rule 8 did not require the FDIC to assert that Meador's alleged misrepresentations were unauthorized.\n \n \n 33\n Additionally, because the estoppel is not part of the FDIC's case, the FDIC's motion for summary judgment did not address whether Meador's alleged misrepresentations were authorized. After Royal Park raised the issue of estoppel in opposing the motion for summary judgment, the FDIC appropriately responded to it in its reply brief.\n \n \n 34\n Royal Park next argues that the court erroneously relied upon cases that concerned statements that were misrepresentations about the law in arriving at its decision in this issue. The court, it says, should have recognized that here the alleged misrepresentation was factual.\n \n \n 35\n Royal Park's argument has no merit. \"[A] private individual asserting estoppel against the government has a very heavy burden to bear\" Jones, 843 F.2d at 853. Accordingly, the reliance upon oral representations of government officials is unreasonable as a matter of law regardless of whether the representation is of fact or law.\n \n IV.\n CONCLUSION\n \n 36\n We AFFIRM the district court's findings and DENY the appellant's motion for certification of the Sec. 51.002 state law question to the Supreme Court of Texas.\n \n \n \n \n District Judge of the Northern District of Illinois, sitting by designation\n \n \n 1\n The court held that the doctrine of sovereign immunity barred Royal Park's claim that the interest charged was usurious. Royal Park does not appeal this portion of the district court's order granting summary judgment\n \n \n 2\n This Rule provides that the Supreme Court of Texas may in its discretion answer questions of state law when the question is certified to it by this Court. The FDIC filed an opposition to this motion. This Court initially ordered the motion for certification and for stay be carried with the case\n \n \n 3\n The parties in that action reached a settlement and the case was dismissed by agreement and therefore the issue has not been decided by the Texas Supreme Court\n \n \n ", "ocr": false, "opinion_id": 5954 } ]	Fifth Circuit	Court of Appeals for the Fifth Circuit	F	USA, Federal
2,619,760	McAllister, Chief Justice, and Rossman, Perry, Sloan, O'connell, Goodwin and Denecke, Justices	1964-09-10	false	city-of-woodburn-v-domogalla	Domogalla	City of Woodburn v. Domogalla	City of Woodburn v. Domogalla	Hattie Bratsel Kremen, District Attorney, Salem, and Theodore W. de Loose, Special Assistant District Attorney, Salem, argued the cause for appellant. With them on the briefs was Norman F. Webb, Deputy District Attorney, Salem., J. Wallace Gutsier, City Attorney, Woodburn, argued the cause for respondent. With him on the brief were Eichsteadt, G-utzler, May & Bolland, Wood-burn., Alexander G. Brown, City Attorney, and Marian C. Rushing, Chief Deputy City Attorney, Portland; Gene B. Conklin, City Attorney, Pendleton; William J. Juza, City Attorney, Salem; William A. Masfield, City Attorney, Medford; Charles A. Phipps, City Attorney, The Dalles; Orval Etter, Research Attorney, League of Oregon Cities, Eugene, filed a brief as amici curiae.	null	null	null	null	null	null	null	Argued April 30,	null	null	8	Published	null	<otherdate id="b415-3"> Argued April 30, </otherdate><decisiondate id="A5DZ"> reversed September 10, 1964 </decisiondate><br><parties id="b415-4"> CITY OF WOODBURN <em> v. </em> DOMOGALLA </parties><br><citation id="b415-5"> 395 P. 2d 150 </citation><br><attorneys id="b416-7"> <span citation-index="1" class="star-pagination" label="402"> *402 </span> <em> Hattie Bratsel Kremen, </em> District Attorney, Salem, and <em> Theodore W. de Loose, </em> Special Assistant District Attorney, Salem, argued the cause for appellant. With them on the briefs was Norman F. Webb, Deputy District Attorney, Salem. </attorneys><br><attorneys id="b416-8"> <em> J. Wallace Gutsier, </em> City Attorney, Woodburn, argued the cause for respondent. With him on the brief were Eichsteadt, G-utzler, May & Bolland, Wood-burn. </attorneys><br><attorneys id="b416-9"> Alexander G. Brown, City Attorney, and Marian C. Rushing, Chief Deputy City Attorney, Portland; Gene B. Conklin, City Attorney, Pendleton; William J. Juza, City Attorney, Salem; William A. Masfield, City Attorney, Medford; Charles A. Phipps, City Attorney, The Dalles; Orval Etter, Research Attorney, League of Oregon Cities, Eugene, filed a brief as amici curiae. </attorneys><br><judges id="b416-10"> Before McAllister, Chief Justice, and Rossman, Perry, Sloan, O’Connell, Goodwin and Denecke, Justices. </judges>	[ "395 P.2d 150", "238 Or. 401" ]	[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n238 Or. 401 (1964)\n395 P.2d 150\nCITY OF WOODBURN\nv.\nDOMOGALLA\nSupreme Court of Oregon.\nArgued April 30, 1964.\nReversed September 10, 1964.\n402 Hattie Bratzel Kremen, District Attorney, Salem, and Theodore W. de Looze, Special Assistant District Attorney, Salem, argued the cause for appellant. With them on the briefs was Norman F. Webb, Deputy District Attorney, Salem.\nJ. Wallace Gutzler, City Attorney, Woodburn, argued the cause for respondent. With him on the brief were Eichsteadt, Gutzler, May & Bolland, Woodburn.\nAlexander G. Brown, City Attorney, and Marian C. Rushing, Chief Deputy City Attorney, Portland; Gene B. Conklin, City Attorney, Pendleton; William J. Juza, City Attorney, Salem; William A. Masfield, City Attorney, Medford; Charles A. Phipps, City Attorney, The Dalles; Orval Etter, Research Attorney, League of Oregon Cities, Eugene, filed a brief as amici curiae.\nBefore McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, Justices.\nREVERSED.\nO'CONNELL, J.\nThis is an appeal from a decree of the Oregon Tax Court allowing a peremptory writ of mandamus which directed defendant to extend on the Marion county assessment rolls a levy for street lighting purposes authorized by an ordinance of plaintiff city.\nPlaintiff adopted an ordinance referring to the inhabitants of Woodburn a charter amendment authorizing a levy for street lighting purposes. The levy 403 was expressed in terms of millage only. The charter amendment was adopted at an election, after which the city council enacted an ordinance levying the amount necessary to cover the city budget including $70,984 for street lighting costs. This levy was sent to defendant. Defendant, apparently having some question as to the validity of the levy for street lighting purposes, sought the advice of the State Tax Commission. The commission instructed defendant by letter not to extend the levy for street lighting purposes for the reason that when it was submitted to the people it was not stated in dollars and cents as required by ORS 310.400 but was stated in mills only.[1] Thereafter the commission issued a formal order directing defendant not to extend the levy.\nDefendant complied with the order, whereupon plaintiff petitioned the Oregon Tax Court for a writ of mandamus requiring defendant to extend the levy upon the assessment and tax rolls of Marion county. The court ultimately granted the writ in peremptory form.\n1. We are forced to conclude that the Oregon Tax Court was without authority to issue a writ of mandamus in the present proceedings. ORS 34.120 provides that the circuit court shall have exclusive jurisdiction of mandamus proceedings (except for the original 404 jurisdiction in mandamus proceedings vested in the Oregon Supreme Court).[2]\nWhen the Oregon Tax Court was created ORS 34.120 was not amended to extend the jurisdiction of the circuit courts in mandamus proceedings to the tax court. Nor do the statutes creating the tax court give it the status of a circuit court so as to bring it within the terms of ORS 34.120. Although the tax court statutes do reflect the intent to equate the tax court with the circuit courts in certain respects,[3] there is nothing in these or any other statutes indicating an intent to equate the jurisdiction of the tax court with the previous jurisdiction of the circuit courts in tax matters.\nIf the tax court is not a \"circuit court\" then ORS 34.120 is controlling unless it can be said that the tax court was vested with the authority to entertain mandamus proceedings in tax matters within its jurisdiction and that, therefore, ORS 34.120 was impliedly amended or partially repealed. We are unable to find in the statutes themselves or in their legislative background a legislative intent to vest in the tax court the general authority to issue writs of mandamus.\nAuthority is vested in the tax court to issue writs of mandamus where a taxpayer fails to file an income tax return within a prescribed time. ORS 314.365. It 405 is argued that since ORS 314.365 modifies ORS 34.120 without expressly amending the latter statute, a similar modification can be implied if the statutes vest in the tax court a jurisdiction in tax matters broad enough to include the authority to issue writs of mandamus. It may be argued with equal force that the express grant of authority to issue writs of mandamus in the one situation described in ORS 314.365 impliedly negates the authority to issue writs in other situations.\nBut approaching the question from the standpoint of an implied amendment or partial repeal of ORS 34.120, we fail to see how it is possible to derive from any of the statutes, singly or taken as a whole, an intent to vest in the tax court a jurisdiction over tax matters broad enough to carry with it by implication the jurisdiction to entertain mandamus proceedings.\n2. The jurisdiction of the tax court is nowhere expressly defined. ORS 305.410 provides:\n\"(1) Subject only to the provisions of ORS 305.445 relating to judicial review by the Supreme Court, the tax court shall be the sole, exclusive and final authority for the hearing and determination of all questions of law and fact arising under the tax laws of the state in cases within its jurisdiction.\n\"(2) No person shall contest, in any action, suit or proceeding in the circuit court or any other court, any matter reviewable by the tax court.\"\nThis statute is not helpful in defining the court's jurisdiction. It simply provides that in cases within its jurisdiction, whatever that may be, the tax court has the exclusive and final authority to adjudicate questions arising under the tax laws of this state. If the statute had granted to the tax court the \"sole, exclusive and final authority for the hearing and determination 406 of all questions of law and fact arising under the tax laws of this state,\" without the modifying clause \"in cases within its jurisdiction,\" the language would describe not only the exclusive character of its jurisdiction but its scope as well. But the statute is not so worded and consequently the language referred to cannot be relied upon as an expression of a legislative design to give the tax court broad adjudicatory authority in the field of taxation in this state. In this connection it is interesting to note that ORS 306.530 (5) defines the authority of the State Tax Commission in similar language. There it is provided that in appeals from the orders of county tax officials the hearing before the commission \"shall determine finally all questions of law and fact arising under the tax laws of the State of Oregon,\" (subject, however, to judicial review by the tax court and the Oregon Supreme Court). It is apparent that the use of such language was not intended to describe anything more than the finality of the administrative adjudication. Similarly, ORS 305.410 describes nothing more than the finality and exclusiveness of the tax court's jurisdiction, whatever it may be.\nWhen we turn from ORS 305.410 to other statutes relating to the tax court we receive no further enlightenment as to the scope of the court's jurisdiction. The lower court concluded that these statutes together with other tax statutes reveal \"that the legislature did not intend to create an inferior tribunal with severely constricted powers of review, but rather it established a true court of justice with plenary judicial powers of a general trial court and reviewable only by the Supreme Court.\"\n3, 4. We are unable to find the source of the inference 407 drawn by the lower court. There is nothing in the statutes or elsewhere to indicate whether the legislature regarded the tax court as an \"inferior tribunal\" or as \"a true court of justice with plenary judicial powers.\" The fact that the tax court was given \"exclusive and final authority\" in the adjudication of certain tax matters (and in that sense was to be a court with \"plenary judicial powers\") does not establish that the court was to have the \"plenary judicial powers of a general trial court.\" Generally when a court is given jurisdiction in a limited subject matter area, the inference runs the other way and the court is classified as a court of inferior status.[4] The creation of a court as a \"general trial court\" in Oregon would not, in itself, permit the inference that it was to have jurisdiction in mandamus cases. Our district courts, although possessing little exclusive or final authority, have been given jurisdiction over a wide variety of cases and, in that sense, are general trial courts. Yet, they do not have the authority to entertain mandamus proceedings.\nIf any inferences are to be drawn from the tax court statutes they would seem to be against rather than in favor of the conclusion that the tax court was to have jurisdiction in mandamus cases. If the tax court had been given exclusive authority to hear and determine all questions of law and fact arising under all of the tax laws of this state, there would be some basis for arguing that any case in the tax field, including those requiring mandamus proceedings, was to be heard by the tax court. But the tax court's jurisdiction is not that broad. The circuit courts still have 408 jurisdiction over various tax matters.[5] Since the legislature reserved to the circuit courts their jurisdiction in determining questions arising out of a part of the tax laws, it is not unreasonable to conclude that the authority to issue writs of mandamus in tax matters was also reserved.\nThe lower court reasons that the legislature must have intended to transfer mandamus jurisdiction to the tax court because were it held otherwise it \"would mean that all tax remedies lie in this special court, except only the remedy of mandamus.\" It is not clear how the term \"tax remedies\" is used in this context. If the term is intended to describe the procedural means of obtaining relief in the tax cases within the tax court's jurisdiction, then it may be observed that there is nothing in the statutes to indicate what procedural devices were to be available in the tax court. If \"tax remedies\" is intended to describe the scope of the tax court's jurisdiction from the standpoint of subject matter, then, as we have already indicated, all tax remedies do not lie in the tax court.[6]\nIt may be noted further in this connection that the statutes are by no means clear as to the scope of the tax court's original jurisdiction to hear tax questions. These statutes lend themselves to a construction limiting the tax court's authority to that of reviewing questions presented upon appeal from the tax commission except in a very limited and special class of cases.[7]\n409 It can be argued that the legislature intended to leave to the circuit courts jurisdiction to decide all questions not previously required by statute to be first presented to the tax commission for its consideration, except in the limited class of cases in which original jurisdiction is expressly conferred on the tax court.[8] The idea of a tax court empowered only to sit in review over matters originating in administrative tribunals is not novel. The United States Tax Court is such a court. It is conceivable that the Oregon Tax Court was modeled after the United States Tax Court in this general respect, rather than as a court of original jurisdiction. If the tax court was so conceived, it would then appear to be a special court as contrasted with a court of general jurisdiction such as our circuit courts.\nThe lower court seems to suggest that a construction depriving the tax court of jurisdiction in mandamus cases would run counter to the legislative intent to integrate all tax remedies in the tax court insofar as that court was given jurisdiction over the subject matter. We have no basis for determining the extent to which the legislature intended to integrate tax remedies in the tax court. As far as we know the legislature may have felt that because mandamus is an extraordinary remedy it should be left in the court of general jurisdiction. There is no proof offered in this case that depriving the tax court of jurisdiction in mandamus cases will result in disharmony in the 410 interpretation or administration of the tax laws of this state. Nor is it shown that the tax court's expertise in tax matters is necessary in determining whether a writ of mandamus should issue in tax matters. Certainly in the present case the circuit court was equally qualified to determine whether defendant had exceeded the bounds of his authority.\n5. It may be conceded that the tax court statutes taken alone lend themselves as readily to an interpretation favoring plaintiff's position. But the implied partial repeal of ORS 34.120 cannot rest upon an interpretation which is no stronger than its antithesis.\nThe decree of the lower court is reversed.\nSLOAN, J., specially concurring.\nIt is my concern that the opinion can be read to imply that the Oregon Tax Court is a court of inferior jurisdiction. In those situations where the legislature has granted specific power to act I am convinced that it was clearly intended that the tax court would have every power that formerly was exercised by the circuit courts. I do agree, however, that until the legislature says so specifically that this does not now include the power to issue a writ of mandamus.\nNOTES\n[1] ORS 310.400 provides as follows:\n\n\"Any proposed tax levy, whether a continuing fixed levy, continuing levy, or levy for a single year, submitted to a vote of the people by the state, any county, municipality, district or body to which the power to levy a tax has been delegated shall be stated in dollars and cents in the measure to be voted upon, and not otherwise, notwithstanding any provision of any other statute of this state to the contrary, and where not inconsistent with or otherwise provided for in the Constitution of this state.\"\n[2] ORS 34.120 provides:\n\n\"The circuit court or judge thereof of the county wherein the defendant, if a public officer or body, exercises his or its functions, or if a private person or corporation, wherein such person resides or may be found, or such private corporation might be sued in an action, shall have exclusive jurisdiction of mandamus proceedings, except that the Supreme Court may take original jurisdiction in mandamus proceedings as provided in section 2 of amended article VII of the Oregon Constitution.\"\n[3] E.g., ORS 305.460 (1) and (3) (salaries and retirement of the respective judges).\n[4] E.g., Holloway v. Holloway, 203 S.C. 339, 27 SE2d 457 (1943) (Domestic Relations Court).\n[5] E.g., ORS 118.350, 118.500 (inheritance taxation); ORS 321.470 (Eastern Oregon severance tax); ORS 321.765 (Western Oregon small tract optional tax).\n[6] See note call 5.\n[7] E.g., ORS 305.410 (2) (providing that there be no contest in any court of any matter \"reviewable\" by the tax court); ORS 305.435 (enumerating in strictly appellate terms the types of dispositions which the tax court may make: \"affirm, reverse, modify or remand the order of the commission\"); and ORS 305.490 (establishing a filing fee but providing, apart from cases on appeal from the commission, for its payment in only one limited area of original proceedings).\n[8] See ORS 314.365 and 314.460 (2).\n\n", "ocr": false, "opinion_id": 2619760 }, { "author_str": "O'Connell", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nO’CONNELL, J.\nThis is an appeal from a decree of the Oregon Tax Court allowing a peremptory writ of mandamus which directed defendant to extend on the Marion county assessment rolls a levy for street lighting purposes authorized by an ordinance of plaintiff city.\nPlaintiff adopted an ordinance referring to the inhabitants of Woodburn a charter amendment authorizing a levy for street lighting purposes. The levy 403was expressed in terms of millage only. The charter amendment was adopted at an election, after which the city council enacted an ordinance levying the amount necessary to cover the city budget including $70,984 for street lighting costs. This levy was sent to defendant. Defendant, apparently having some question as to the validity of the levy for street lighting purposes, sought the advice of the State Tax Commission. The commission instructed defendant by letter not to extend the levy for street lighting purposes for the reason that when it was submitted to the people it was not stated in dollars and cents as required by ORS 310.400 but was stated in mills only.① Thereafter the commission issued a formal order directing defendant not to extend the levy.\nDefendant complied with the order, whereupon plaintiff petitioned the Oregon Tax Court for a writ of mandamus requiring defendant to extend the levy upon the assessment and tax rolls of Marion county. The court ultimately granted the writ in peremptory form.\nWe are forced to conclude that the Oregon Tax Court was without authority to issue a writ of mandamus in the present proceedings. OES 34.120 provides that the circuit court shall have exclusive jurisdiction of mandamus proceedings (except for the orig404inal jurisdiction in mandamus proceedings vested in the Oregon Supreme Court).②\nWhen the Oregon Tax Court was created ORS 34.120 was not amended to extend the jurisdiction of the circuit courts in mandamus proceedings to the tax court. Nor do the statutes creating the tax court give it the status of a circuit court so as to bring it within the terms of ORS 34.120. Although the tax court statutes do reflect the intent to equate the tax court with the circuit courts in certain respects,③ there is nothing in these or any other statutes indicating an intent to equate the jurisdiction of the tax court with the previous jurisdiction of the circuit courts in tax matters.\nIf the tax court is not a “circuit court” then ORS 34.120 is controlling unless it can be said that the tax court was vested with the authority to entertain mandamus proceedings in tax matters within its jurisdiction and that, therefore, ORS 34.120 was impliedly amended or partially repealed. We are unable to find in the statutes themselves or in their legislative background a legislative intent to vest in the tax court the general authority to issue writs of mandamus.\nAuthority is vested in the tax court to issue writs of mandamus where a taxpayer fails to file an income tax return within a prescribed time. ORS 314.365. It 405is argued that since ORS 314.365 modifies ORS 34.120 without expressly amending the latter statute, a similar modification can be implied if the statutes vest in the tax court a jurisdiction in tax matters broad enough to include the authority to issue writs of mandamus. It may be argued with equal force that the express grant of authority to issue writs of mandamus in the one situation described in ORS 314.365 impliedly negates the authority to issue writs in other situations.\nBut approaching the question from the standpoint of an implied amendment or partial repeal of ORS 34.120, we fail to see how it is possible to derive from any of the statutes, singly or taken as a whole, an intent to vest in the tax court a jurisdiction over tax matters broad enough to carry with it by implication the jurisdiction to entertain mandamus proceedings.\nThe jurisdiction of the tax court is nowhere expressly defined. ORS 305.410 provides:\n“(1) Subject only to the provisions of ORS 305.445 relating to judicial review by the Supreme Court, the tax court shall be the sole, exclusive and final authority for the hearing and determination of all questions of law and fact arising under the tax laws of the state in cases within its jurisdiction.\n“(2) No person shall contest, in any action, suit or proceeding in the circuit court or any other court, any matter reviewable by the tax court.”\nThis statute is not helpful in defining the court’s jurisdiction. It simply provides that in cases within its jurisdiction, whatever that may he, the tax court has the exclusive and final authority to adjudicate questions arising under the tax laws of this state. If the statute had granted to the tax court the “sole, exclusive and final authority for the hearing and determina406tion of all questions of law and fact arising under the tax laws of this state,” without the modifying clause “in cases within its jurisdiction,” the language would describe not only the exclusive character of its jurisdiction but its scope as well. But the statute is not so worded and consequently the language referred to cannot be relied upon as an expression of a legislative design to give the tax court broad adjudicatory authority in the field of taxation in this state. In this connection it is interesting to note that ORS 306.530 (5) defines the authority of the State Tax Commission in similar language. There it is provided that in appeals from the orders of county tax officials the hearing before the commission “shall determine finally all questions of law and fact arising under the tax laws of the State of Oregon,” (subject, however, to judicial review by the tax court and the Oregon Supreme Court). It is apparent that the use of such language was not intended to describe anything more than the finality of the administrative adjudication. Similarly, ORS 305.410 describes nothing more than the finality and exclusiveness of the tax court’s jurisdiction, whatever it may be.\nWhen we turn from ORS 305.410 to other statutes relating to the tax court we receive no further enlightenment as to the scope of the court’s jurisdiction. The lower court concluded that these statutes together with other tax statutes reveal “that the legislature did not intend to create an inferior tribunal with severely constricted powers of review, but rather it established a true court of justice with plenary judicial powers of a general trial court and reviewable only by the Supreme Court.”\nWe are unable to find the source of the infer407ence drawn by tbe lower court. There is nothing in the statutes or elsewhere to indicate whether the legislature regarded the tax court as an “inferior tribunal” or as “a true court of justice with plenary judicial powers.” The fact that the tax court was given “exclusive and final authority” in the adjudication of certain tax matters (and in that sense was to be a court with “plenary judicial powers”) does not establish that the court was to have the “plenary judicial powers of a general trial court.” Generally when a court is given jurisdiction in a limited subject matter area, the inference runs the other way and the court is classified as a court of inferior status.④ The creation of a court as a “general trial court” in Oregon would not, in itself, permit the inference that it was to have jurisdiction in mandamus cases. Our district courts, although possessing little exclusive or final authority, have been given jurisdiction over a wide variety of cases and, in that sense, are general trial courts. Yet, they do not have the authority to entertain mandamus proceedings.\nIf any inferences are to be drawn from the tax court statutes they would seem to be against rather than in favor of the conclusion that the tax court was to have jurisdiction in mandamus cases. If the tax court had been given exclusive authority to hear and determine all questions of law and fact arising under all of the tax laws of this state, there would be some basis for arguing that any case in the tax field, including those requiring mandamus proceedings, was to be heard by the tax court. But the tax court’s jurisdiction is not that broad. The circuit courts still have 408jurisdiction over various tax matters.⑤ Since the legislature reserved to the circuit courts their jurisdiction in determining questions arising out of a part of the tax laws, it is not unreasonable to conclude that the authority to issue writs of mandamus in tax matters was also reserved.\nThe lower court reasons that the legislature must have intended to transfer mandamus jurisdiction to the tax court because were it held otherwise it “would mean that all tax remedies lie in this special court, except only the remedy of mandamus.” It is not clear how the term “tax remedies” is used in this context. If the term is intended to describe the procedural means of obtaining relief in the tax cases within the tax court’s jurisdiction, then it may be observed that there is nothing in the statutes to indicate what procedural devices were to be available in the tax court. If “tax remedies” is intended to describe the scope of the tax court’s jurisdiction from the standpoint of subject matter, then, as we have already indicated, all tax remedies do not lie in the tax court.⑥\nIt may be noted further in this connection that the statutes are by no means clear as to the scope of the tax court’s original jurisdiction to hear tax questions. These statutes lend themselves to a construction limiting the tax court’s authority to that of reviewing questions presented upon appeal from the tax commission except in a very limited and special class of cases.⑦\n409It can be argued that the legislature intended to leave to the circuit courts jurisdiction to decide all questions not previously required by statute to be first presented to the tax commission for its consideration, except in the limited class of cases in which original jurisdiction is expressly conferred on the tax court.⑧ The idea of a tax court empowered only to sit in review over matters originating in administrative tribunals is not novel. The United States Tax Court is such a court. It is conceivable that the Oregon Tax Court was modeled after the United States Tax Court in this general respect, rather than as a court of original jurisdiction. If the tax court was so conceived, it would then appear to be a special court as contrasted with a court of general jurisdiction such as our circuit courts.\nThe lower court seems to suggest that a construction depriving the tax court of jurisdiction in mandamus cases would run counter to the legislative intent to integrate all tax remedies in the tax court insofar as that court was given jurisdiction over the subject matter. We have no basis for determining the extent to which the legislature intended to integrate tax remedies in the tax court. As far as we know the legislature may have felt that because mandamus is an extraordinary remedy it should be left in the court of general jurisdiction. There is no proof offered in this case that depriving the tax court of jurisdiction in mandamus cases will result in disharmony in the 410interpretation or administration of the tax laws of this state. Nor is it shown that the tax court’s expertise in tax matters is necessary in determining whether a writ of mandamus should issue in tax matters. Certainly in the present ease the circuit court was equally qualified to determine whether defendant had exceeded the bounds of his authority.\nIt may be conceded that the tax court statutes taken alone lend themselves as readily to an interpretation favoring plaintiff’s position. But the implied partial repeal of OB.S 34.120 cannot rest upon an interpretation which is no stronger than its antithesis.\nThe decree of the lower court is reversed.\n\n ORS 310.400 provides as follows:\n“Any proposed tax levy, whether a continuing fixed levy, continuing levy, or levy for a single year, submitted to a vote of the people by the state, any county, municipality, district or body to which the power to levy a tax has been delegated shall be stated in dollars and cents in the measure to be voted upon, and not otherwise, notwithstanding any provision of any other statute of this state to the contrary, and where not inconsistent with or otherwise provided for in the Constitution of this state.”\n\n\n ORS 34.120 provides:\n“The circuit court or judge thereof of the county wherein the defendant, if a public officer or body, exercises his or its functions, or if a private person or corporation, wherein such person resides or may be found, or such private corporation might be sued in an action, shall have exclusive jurisdiction of mandamus proceedings, except that the Supreme Court may take original jurisdiction in mandamus proceedings as provided in section 2 of amended article VII of the Oregon Constitution.”\n\n\n E.g., ORS 305.460 (1) and (3) (salaries and retirement of the respective judges).\n\n\n E.g., Holloway v. Holloway, 203 S.C. 339, 27 SE2d 457 (1943) (Domestic Relations Court).\n\n\n E.g., ORS 118.350, 118.500 (inheritance taxation); ORS 321.470 (Eastern Oregon severance tax); ORS 321.765 (Western Oregon small tract optional tax).\n\n\n See note call 5.\n\n\n E.g., ORS 305.410 (2) (providing that there be no contest in any court o£ any matter “reviewable” by the tax court); ORS 305.435 (enumerating in strictly appellate terms the types ol 409dispositions which the tax court may make: “affirm, reverse, modify or remand the order of the commission”); and ORS 305.490 (establishing a filing fee but providing, apart from cases on appeal from the commission, for its payment in only one limited area of original proceedings).\n\n\n See ORS 314.365 and 314.460 (2).\n\n", "ocr": false, "opinion_id": 9794887 }, { "author_str": "Sloan", "per_curiam": false, "type": "030concurrence", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nSLOAN, J.,\nspecially concurring.\nIt is my concern that the opinion can be read to imply that the Oregon Tax Court is a court of inferior jurisdiction. In those situations where the legislature has granted specific power to act I am convinced that it was clearly intended that the tax court would have every power that formerly was exercised by the circuit courts. I do agree, however, that until the legislature says so specifically that this does not now include the power to issue a writ of mandamus.\n", "ocr": false, "opinion_id": 9794888 } ]	Oregon Supreme Court	Oregon Supreme Court	S	Oregon, OR
6,232	DeMOSS, Higginbotham, Politz	1994-02-17	false	united-states-v-madkins	Madkins	United States v. Madkins	UNITED STATES of America, Plaintiff-Appellee, v. Elizabeth MADKINS, A/K/A Elizabeth Richardson, Defendant-Appellant	Elizabeth Madkins, pro se., John M. Bales, Asst. U.S. Atty., Bob Wort-ham, U.S. Atty., Beaumont, TX, for U.S.	null	null	null	null	null	null	null	null	null	null	23	Published	null	<parties data-order="0" data-type="parties" id="b371-14"> UNITED STATES of America, Plaintiff-Appellee, v. Elizabeth MADKINS, a/k/a Elizabeth Richardson, Defendant-Appellant. </parties><br><docketnumber data-order="1" data-type="docketnumber" id="b371-17"> No. 93-4954 </docketnumber><p data-order="2" data-type="misc" id="AUC"> Summary Calendar. </p><br><court data-order="3" data-type="court" id="b371-18"> United States Court of Appeals, Fifth Circuit. </court><br><decisiondate data-order="4" data-type="decisiondate" id="b371-20"> Feb. 17, 1994. </decisiondate><br><attorneys data-order="5" data-type="attorneys" id="b372-15"> <span citation-index="1" class="star-pagination" label="278"> *278 </span> Elizabeth Madkins, pro se. </attorneys><br><attorneys data-order="6" data-type="attorneys" id="b372-16"> John M. Bales, Asst. U.S. Atty., Bob Wort-ham, U.S. Atty., Beaumont, TX, for U.S. </attorneys><br><judges data-order="7" data-type="judges" id="b372-18"> Before POLITZ, Chief Judge, HIGGINBOTHAM and DeMOSS, Circuit Judges. </judges>	[ "14 F.3d 277" ]	[ { "author_str": "Politz", "per_curiam": false, "type": "010combined", "page_count": 3, "download_url": "http://www.ca5.uscourts.gov/opinions\\pub\\93/93-04954.CR0.wpd.pdf", "author_id": null, "opinion_text": "14 F.3d 277\n UNITED STATES of America, Plaintiff-Appellee,v.Elizabeth MADKINS, a/k/a Elizabeth Richardson, Defendant-Appellant.\n No. 93-4954Summary Calendar.\n United States Court of Appeals,Fifth Circuit.\n Feb. 17, 1994.\n \n Elizabeth Madkins, pro se.\n John M. Bales, Asst. U.S. Atty., Bob Wortham, U.S. Atty., Beaumont, TX, for U.S.\n Appeal from the United States District Court for the Eastern District of Texas.\n Before POLITZ, Chief Judge, HIGGINBOTHAM and DeMOSS, Circuit Judges.\n POLITZ, Chief Judge:\n \n \n 1\n Elizabeth Madkins appeals the district court's denial of her 28 U.S.C. Sec. 2255 petition. For the reasons assigned we affirm.\n \n Background\n \n 2\n Madkins was convicted by a jury of conspiracy to distribute 5 kilograms or more of cocaine and 50 grams or more of cocaine base, 21 U.S.C. Secs. 841(a)(1), 846, and for money laundering, 18 U.S.C. Secs. 1956(a)(1)(B)(i) and (2). Because the statutory minimum sentence of 120 months was greater than the maximum applicable guidelines range,1 the mandatory minimum became the guideline sentence.2 The district court sentenced Madkins to 120 months imprisonment and 5 years supervised release. Madkins did not appeal her conviction or sentence but filed a pro se 28 U.S.C. Sec. 2255 petition claiming that the district court did not have jurisdiction over the crimes committed, that venue was improper, and that she received ineffective assistance of counsel. The section 2255 petition was denied; Madkins timely appealed.\n \n Analysis\n \n 3\n Madkins raises numerous issues on appeal, first contending that the district court did not have jurisdiction and that venue was improper.3 Madkins argues that federal courts do not have jurisdiction over crimes against the United States that occur in the \"Sovereign State of Texas.\" This argument is frivolous. Under 18 U.S.C. Sec. 3231, \"[d]istrict courts have jurisdiction over offenses against the laws of the United States.\"4 Madkins was indicted for violating federal laws prohibiting conspiring to distribute cocaine5 and money laundering.6 The district court had jurisdiction over her prosecution. The suggestion that because the offense occurred within the State of Texas the federal government is rendered powerless requires no response.\n \n \n 4\n Madkins' venue challenge is also meritless. Criminal defendants have a constitutional right to be tried in the state and district where the crime was committed.7 Here, the government charged Madkins with performing acts in furtherance of the conspiracy and of engaging in money laundering in Nacogdoches, Texas. The United States District Court for the Eastern District of Texas encompasses Nacogdoches County, Texas.8 Venue was proper.\n \n \n 5\n Madkins raises another issue which, in a proper setting, would have substantial persuasive force. She points out that the conspiracy for which she was convicted and sentenced began in 1988 and involved five kilograms of cocaine and 50 grams of cocaine base. She did not enter the conspiracy until 1990 and the PSR reflects that \"the only amount of drugs that can be attributed to [Madkins] is 1/2 ounce of cocaine base,\" and that there is no proof she had knowledge of the other transactions. We very recently have held that the reasonable foreseeability requirement of U.S.S.G. Sec. 1B1.3 is prospective only for purposes of determining relevant conduct in conspiracy cases.9 Consequently, conduct occurring before the defendant joined the conspiracy typically cannot be included in the relevant conduct inquiry.10 Further, our circuit colleagues addressing this issue have all held that the standards governing guideline sentences should apply to the statutory minimums in drug conspiracy cases.11\n \n \n 6\n The immediate problem Madkins encounters is that this assignment of error is being raised for the first time on appeal; it was not presented to the district court. We may not consider it.12 We also are mindful of the difficulty that Madkins may face in raising any issue in a section 2255 habeas petition which could have been raised on direct appeal and which is not of constitutional or jurisdictional magnitude.13\n \n \n 7\n Madkins included in her brief a motion to appoint counsel and to supplement the record on appeal. In light of today's disposition, we find that the interests of justice do not require granting those motions, and they accordingly are DENIED.14\n \n \n 8\n The judgment of the district court is AFFIRMED.\n \n \n \n 1\n The PSR computed Madkins' total offense level at 26 with a criminal history of I, resulting in a sentencing range of 63 to 78 months\n 2 U.S.S.G. Sec. 5G1.1(b).\n \n \n 3\n Although Madkins claimed in the district court that she was rendered ineffective assistance of counsel, she does not raise this issue in her appellate brief. That claim is therefore abandoned. Hobbs v. Blackburn, 752 F.2d 1079 (5th Cir.), cert. denied, 474 U.S. 838, 106 S.Ct. 117, 88 L.Ed.2d 95 (1985)\n \n \n 4\n United States v. Drobny, 955 F.2d 990, 997 (5th Cir.1992)\n \n \n 5\n 21 U.S.C. Secs. 841(a)(1), 846\n \n \n 6\n 18 U.S.C. Sec. 1956(a)(1)(B)(i) and (2)\n \n \n 7\n United States v. Davis, 666 F.2d 195 (5th Cir.1982)\n \n \n 8\n 28 U.S.C. Sec. 124(c)(7)\n \n \n 9\n United States v. Carreon, 11 F.3d 1225 (5th Cir.1994)\n \n \n 10\n Id. The relevant inquiry is to determine the foreseeable object to which the individual conspirator agreed. Earlier transactions of a conspiracy before a conspirator joins may, in certain settings, be relevant. See United States v. O'Campo, 973 F.2d 1015 (1st Cir.1992)\n \n \n 11\n United States v. Irvin, 2 F.3d 72 (4th Cir.1993); United States v. Young, 997 F.2d 1204 (7th Cir.1993); United States v. Martinez, 987 F.2d 920 (2d Cir.1993) (explaining that in a conspiracy case the issue is not whether the defendant knew what drugs he was dealing or what amounts he was dealing, but whether he knew about the amounts of drugs that his coconspirator was dealing up to two years before they ever met); and United States v. Jones, 965 F.2d 1507 (8th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 346, 121 L.Ed.2d 261 (1992)\n \n \n 12\n United States v. Cates, 952 F.2d 149 (5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 2319, 119 L.Ed.2d 238 (1992)\n \n \n 13\n United States v. Prince, 868 F.2d 1379 (5th Cir.), cert. denied, 493 U.S. 932, 110 S.Ct. 321, 107 L.Ed.2d 312 (1989); United States v. Perez, 952 F.2d 908 (5th Cir.1992)\n \n \n 14\n See, e.g., Schwander v. Blackburn, 750 F.2d 494 (5th Cir.1985)\n \n \n ", "ocr": false, "opinion_id": 6232 } ]	Fifth Circuit	Court of Appeals for the Fifth Circuit	F	USA, Federal
6,463	null	1994-05-27	false	society-of-roman-catholic-church-of-diocese-of-laf	null	Society of Roman Catholic Church of Diocese of Lafayette and Lake Charles, Inc. v.	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": 19, "download_url": "http://www.ca5.uscourts.gov/opinions\\pub\\93/93-04068.CV0.wpd.pdf", "author_id": null, "opinion_text": " United States Court of Appeals,\n\n Fifth Circuit.\n\n No. 93-4068.\n\n The SOCIETY OF the ROMAN CATHOLIC CHURCH OF the DIOCESE OF\nLAFAYETTE AND LAKE CHARLES, INC., Plaintiff-Appellee-Cross\nAppellant-Appellant and Cross-Appellee,\n\n v.\n\n INTERSTATE FIRE & CASUALTY CO., et al., Defendants.\n\n ARTHUR J. GALLAGHER & COMPANY and Gallagher Bassett Services,\nInc., Defendants-Appellees-Cross Appellants,\n\n v.\n\n INTERSTATE FIRE & CASUALTY COMPANY, Defendant-Appellee-Cross\nAppellee and Cross-Appellant,\n\n v.\n\n Allen Godfrey LEE and Lloyds of London, Defendants-Appellees-\nCross Appellees,\n\n v.\n\n PACIFIC EMPLOYERS INSURANCE COMPANY, Defendant-Third Party\nPlaintiff-Appellee-Appellant and Cross-Appellee,\n\n and\n\nFireman's Fund Insurance, Defendant-Appellee-Appellant and Cross-\nAppellee,\n\n and\n\n Preferred Risk Mutual Insurance Company, Defendant-Appellee-\nAppellant and Cross-Appellee.\n\n CENTENNIAL INSURANCE COMPANY, Defendant-Appellee,\n\n v.\n\n HOUSTON GENERAL INSURANCE COMPANY, Defendant-Appellant-Cross-\nAppellee and Appellee,\n\n LOUISIANA COMPANIES, INC., Third Party Defendant-Appellee.\n\n May 27, 1994.\n\n 1\n\fAppeals from the United States District Court for the Western\nDistrict of Louisiana.\n\nBefore REAVLEY, GARWOOD and HIGGINBOTHAM, Circuit Judges.\n\n REAVLEY, Circuit Judge:\n\n Two pedophilic priests of the Diocese of Lafayette1 molested\n\nthirty-one children over a period of seven years, prompting a spate\n\nof claims from the children and their parents. The Diocese and its\n\ninsurance carriers, unable to compromise on the allocation of loss\n\nunder the \"occurrence\" policies, settled the claims against the\n\nDiocese with contributions on a pro rata basis (using years of\n\ncoverage as a benchmark) and agreed to let a court decide their\n\ncoverage dispute. The Diocese filed a declaratory judgment action\n\nin state court, which was removed upon diversity jurisdiction to\n\nfederal court. The parties then submitted motions for summary\n\njudgment, and the court granted summary judgment on all claims. We\n\naffirm in part, reverse in part, and remand.\n\n I. Background\n\n The sordid picture underlying this insurance coverage dispute\n\nis that of two miscreant priests, who subjected thirty-one children\n\nto extended periods of sexual molestation. These molestations\n\nbegan in August of 1976 and ended in June of 1983. During these\n\nseven years, the Diocese did nothing to rein in the errant priests:\n\nit did not investigate, it did not intercede. The record on appeal\n\n\n 1\n The Society of the Roman Catholic Church of the Diocese of\nLafayette, Inc. and the Diocese of Lake Charles, Inc. are both\nappellants in this appeal. At oral argument the parties\nindicated that one Diocese is the successor of the other, so we\nwill refer to the appellants as \"the Diocese.\"\n\n 2\n\fdoes not show how many times each child was molested, nor the\n\nextent of damage resulting from each encounter. The parties,\n\nhowever, have stipulated to the dates when the molestations began\n\nand ended for each child (the \"grid\").2 And during oral argument,\n\nthe parties further agreed that each child was molested at least\n\nonce during each stipulated year of molestation.\n\nA. The Insurance Policies\n\n The complexity of this case arises from the different periods\n\nof the Diocese's insurance coverage, primary and excess. Fireman's\n\nFund Insurance Company was the primary carrier from 1975 to 1978,\n\nand Preferred Risk Mutual Insurance Company covered the Diocese\n\nfrom 1978 through July 1981. Houston General Insurance Company was\n\nthe excess carrier from 1975 to 1979, and Pacific Employers'\n\nInsurance Company was the succeeding excess carrier through July\n\n1981.\n\n In July 1981, the Diocese switched its coverage to a form of\n\nlimited self-insurance. Under this self-insurance plan, the\n\nDiocese contributed $400,000 to a yearly loss fund, from which the\n\n 2\n Represented as uncontested facts, Lloyd's of London\npresented a grid, along with its motion for summary judgment,\nlisting when each child's molestation began and ended. On\nappeal, Houston General Insurance Company does not contest its\naccuracy, though it once did. See Cinel v. Connick, 15 F.3d\n1338, 1345 (5th Cir.1994) (\"An appellant abandons all issues not\nraised and argued in its initial brief on appeal.\") (emphasis\nomitted). Pacific Employers' Insurance Company argues that the\ndates of child molestation are disputed fact questions. But\nbecause Pacific failed to contest the grid under the district\ncourt's local rules, it has waived any objection it may have had\nto the grid. Local Rule 2.10 (\"Opposition to Summary Judgment.\n... All material facts set forth in the statement required to be\nserved by the moving party will be deemed admitted, for purposes\nof the motion, unless controverted as required by this rule.\").\n\n 3\n\fDiocese was responsible for the first $100,000 of each occurrence.\n\nIf more than four claims of over $100,000 each exhausted the loss\n\nfund, Lloyd's of London, as the excess aggregate insurer, paid the\n\nfirst $100,000 of each occurrence, up to Lloyd's aggregate limit of\n\n$450,000.3 Once the Lloyd's policy was exhausted, the Diocese\n\nagain became responsible for the first $100,000 of each successive\n\noccurrence for the rest of the year. Interstate Fire & Casualty\n\nCompany's $25 million umbrella policy covered all losses above\n\n$100,000 per occurrence.\n\n All insurance policies are \"occurrence\" based policies,\n\nmeaning their limits of coverage are capped on a per occurrence\n\nbasis. Under such a policy, it is the date of the occurrence, and\n\nnot the date of the claim, that determines coverage. When bodily\n\ninjury results from an occurrence during a policy period, coverage\n\nis triggered. This coverage extends to all resulting damages—both\n\npresent and future—emanating from the injury. The policy does not,\n\nhowever, cover bodily injury occurring outside of the policy\n\nperiod.\n\n Because the insurance companies and the Diocese could not\n\nagree on the proper definition of \"occurrence,\" they opted to\n\nsettle the molestation claims among themselves on a pro rata basis\n\nand leave the proper allocation of loss to the court. Accordingly,\n\nthe Diocese filed a declaratory judgment action in state court,\n\nwhich was removed to federal court on diversity grounds. Decision\n\n 3\n Centennial Insurance Company, also a party to this appeal,\nparticipated in 207 of the Lloyd's policy. It did not issue a\nseparate policy insuring the Diocese.\n\n 4\n\fof the issues affect either the allocation of loss between\n\nsuccessive primary carriers and the Diocese or between primary and\n\nexcess carriers.\n\nB. The District Court's Opinion\n\n1. Occurrence and First Encounter\n\n The district court relied on Interstate Fire & Cas. Co. v.\n\nArchdiocese of Portland, 747 F. Supp. 618 (D.Or.1990) to conclude\n\nthat \"occurrence\" should be defined on a per child basis, with all\n\nsubsequent molestation treated as injury resulting from that\n\n\"occurrence.\" With thirty-one children molested, the court\n\nreasoned that there were thirty-one occurrences. It also\n\nconsidered the parents' claims as arising from the same\n\n\"occurrences,\" meaning that the parents' injuries did not\n\nconstitute separate occurrences under the policies. The court\n\nallocated the loss using the \"first encounter rule\": the insurance\n\ncarrier covering the Diocese during the occurrence of the first\n\nmolestation of each child was responsible for all resulting damages\n\nto that child (and his parents), including damages from\n\nmolestations occurring after the expiration of that carrier's\n\npolicy.4\n\n Depending upon their interests, all parties appeal from the\n\ncourt's judgment. Some disagree with the court's definition of\n\n\"occurrence,\" others contest the court's use of the first encounter\n\nrule.\n\n 4\n The parties submitted nine other molestation claims to\narbitration, and the district court held the arbitration binding.\nNo party contests this ruling on appeal.\n\n 5\n\f2. The Diocese's Claim Against Gallagher and Bassett\n\n The Diocese sued Arthur J. Gallagher & Company, the insurance\n\nagent that procured the self-insurance program, alleging that\n\nGallagher failed to provide \"full coverage\" above the loss fund as\n\nwarranted. The court granted Gallagher's motion for summary\n\njudgment, and the Diocese appeals.\n\n The Diocese also sued Gallagher Bassett Services Inc., the\n\nadministrator of the self-insurance plan, claiming that Bassett\n\nbreached its obligation to properly administer the plan by refusing\n\nto contribute money from the loss fund toward the settlement of\n\nmolestation claims arising before 1981. The court granted\n\nBassett's motion for summary judgment, and the Diocese appeals.\n\n3. Pacific's Claim Against Louisiana Companies\n\n Pacific, an excess carrier, sued its insurance agent,\n\nLouisiana Companies, alleging that Louisiana Companies\n\nmisrepresented the Diocese's underlying primary coverage as\n\n$500,000 per year, when it was actually a three-year policy with a\n\n$500,000 per occurrence limit (Preferred's policy). With\n\n\"occurrence\" defined on a per child basis and with liability\n\nallocated under the first encounter rule, the court concluded that\n\nPacific suffered no prejudice from the alleged misrepresentation\n\nand granted Louisiana Companies' motion for summary judgment.\n\nPacific appeals.\n\n II. Analysis\n\nA. Allocation of Loss Under the Insurance Policies\n\n With the claims by the children and their parents settled, we\n\n\n 6\n\fmust determine the proper allocation of loss among the insurance\n\ncompanies and the Diocese. Because this declaratory judgment\n\naction is based upon diversity jurisdiction, we apply Louisiana law\n\nin interpreting the insurance policies.\n\n1. Defining \"Occurrence\"\n\na. The Children's Claims\n\n What constitutes an \"occurrence\" is central to this appeal\n\nbecause each policy's limits of liability are on a per occurrence\n\nbasis; the larger the number of \"occurrences,\" the greater the\n\nloss borne by the primary insurers and the Diocese. The Lloyd's\n\npolicy is representative of the other policies involved in both its\n\nscope of coverage and its definition of \"occurrence\":\n\n Underwriters hereby agree ... to indemnify the Insured for all\n sums which the Insured shall be obligated to pay by reason of\n the liability imposed upon the Insured by law ... for damages\n ... on account of personal injuries ... arising out of any\n occurrence happening during the period of the Insurance.\n\n The term \"occurrence\" wherever used herein shall mean an\n accident or a happening or event or a continuous or repeated\n exposure to conditions which unexpectedly and unintentionally\n result in personal injury, or damage to property during the\n policy period. All such exposure to substantially the same\n general conditions existing at or emanating from one location\n shall be deemed one occurrence. (emphasis added).\n\nThe definition of \"occurrence\" affords little assistance because \"a\n\ncontinuous or repeated exposure to conditions\" and \"substantially\n\nthe same general conditions\" are malleable. An \"occurrence\" could\n\nbe the church's continuous negligent supervision of a priest, the\n\nnegligent supervision of a priest with respect to each child, the\n\nnegligent supervision of a priest with respect to each molestation,\n\nor each time the Diocese became aware of a fact which should have\n\n\n 7\n\fled it to intervene, just to name a few possibilities.5 The\n\nmeaning of \"occurrence,\" as used in the insurance policies, can be\n\nperplexing in application. Cf. Insurance Co. of North Am. v.\n\nForty-Eight Insulations, Inc., 633 F.2d 1212, 1222 (6th Cir.1980),\n\ncert. denied, 454 U.S. 1109, 102 S. Ct. 686, 70 L. Ed. 2d 650 (1981).\n\nWhen a term in an insurance policy has uncertain application,\n\nLouisiana courts interpret the policy in favor of the insured. See\n\nHebert v. First Am. Ins. Co., 461 So. 2d 1141, 1143\n\n(La.Ct.App.1984), writ denied, 462 So. 2d 1265 (La.1985).\n\n While there are many possible applications of the term\n\n\"occurrence,\" we are not without guidance. In Lombard v. Sewerage\n\n& Water Bd. of New Orleans, 284 So. 2d 905 (La.1973), where the\n\nongoing construction of a drainage canal damaged many adjacent\n\nproperty owners, the Louisiana Supreme Court discussed the proper\n\nmethod for determining an \"occurrence\" when the cause of harm\n\ncontinues to injure different persons:\n\n The word \"occurrence\" as used in the policy must be construed\n from the point of view of the many persons whose property was\n damaged. As to each of these plaintiffs, the cumulated\n activities causing damage should be considered as one\n occurrence, though the circumstances causing damage consist of\n\n 5\n We have couched the underlying tort in language of\nnegligent supervision, assuming that the Louisiana Supreme Court\nwould not consider the priests' actions to be within the scope of\ntheir employment, nor would it consider the molestations a \"risk\nof harm fairly attributable to the employer's business.\" See\nRoberts v. Benoit, 605 So. 2d 1032, 1040-41 (La.1991); McClain v.\nHolmes, 460 So. 2d 681, 683-84 (La.Ct.App.1984), writ denied, 463\nSo. 2d 1321 (La.1985). But even if the Diocese is liable for the\npriests' intentional acts under a respondeat superior theory, see\nMiller v. Keating, 349 So. 2d 265, 268-69 (La.1977), such\nliability does not affect our decision on what constitutes an\n\"occurrence\" or the number of occurrences suffered by each child.\n\n\n 8\n\f a continuous or repeated exposure to conditions resulting in\n damage arising out of such exposure. Thus, when the separate\n property of each plaintiff was damaged by a series of events,\n one occurrence was involved insofar as each property owner was\n concerned. Notwithstanding, therefore, that the same causes\n may have operated upon several properties at the same time\n resulting in varying degrees of damage, it cannot be regarded\n as one occurrence, but the damage to each plaintiff is a\n separate occurrence.\n\nId. at 915-16. Following Lombard, \"the damage to each [child] is\n\na separate occurrence.\" See also Interstate, 747 F. Supp. at 624\n\n(\"Each time this negligent supervision presented Father Laughlin\n\nwith the opportunity to molest a different child, the Archdiocese\n\nwas exposed to new liability,\" which constitutes an \"occurrence\"\n\nunder the policy language.); Maurice Pincoffs Co. v. St. Paul Fire\n\n& Marine Ins. Co., 447 F.2d 204, 206 (5th Cir.1971) (holding that\n\nthe liability creating event constitutes an \"occurrence\").\n\nb. The Parents' Claims\n\n Interstate argues that the injuries suffered by the children's\n\nparents are separate \"occurrences\" under the policies. In its\n\nbrief, Interstate launches a flotilla of Louisiana cases showing\n\nthat the parents have a direct cause of action against the church\n\nfor their injuries, but Interstate misses the mark. Whether the\n\nparents' claims are direct under Louisiana law is not relevant.\n\nThe issue is whether, under the policy language, the parents'\n\ninjuries are derivative of an \"occurrence.\" If the children had\n\nnot been molested, the parents would have gone unharmed. Thus, the\n\nparents' injuries do not amount to separate \"occurrences\" under the\n\npolicies. See Crabtree v. State Farm Ins. Co., 632 So. 2d 736, 738\n\n(La.1994) (finding that while the wife's claim for mental anguish\n\n\n 9\n\fconstituted \"bodily injury\" separate from that suffered by her\n\nhusband, entitling her to a separate \"per person\" limit of\n\ncoverage, her claim was nevertheless subject to the \"per accident\"\n\nlimit in the policy); Lantier v. Aetna Cas. & Sur. Co., 614 So. 2d\n\n1346, 1357 (La.Ct.App.1993) (concluding that spouses' wrongful\n\ndeath suits were derivative of a single \"occurrence\"); Geico v.\n\nFetisoff, 958 F.2d 1137, 1143 (D.C.Cir.1992) (holding that while a\n\nspouse may have a legally independent claim for loss of consortium,\n\nit is nevertheless derivative of the \"occurrence\" under the policy\n\nlanguage).\n\n2. The Number of \"Occurrences\" Per Child\n\n While Lombard instructs that the molestation of each child is\n\na separate occurrence, it does not answer the question of how many\n\n\"occurrences\" each child suffered, because the issue of multiple\n\noccurrences during successive policy terms never arose. The\n\ncourt's opinion in Davis v. Poelman, 319 So. 2d 351 (La.1975) is\n\nequally unhelpful because it dealt with a single injury resulting\n\nin continuing damage over a period of time. It did not address a\n\nsituation where an individual was repeatedly injured during\n\nmultiple policy terms.\n\n The most applicable line of Louisiana cases dealing with\n\nmultiple injuries during successive years are the asbestosis\n\ncases.6 See e.g., Cole v. Celotex Corp., 599 So. 2d 1058 (La.1992);\n\n 6\n The district court refused to follow the asbestos cases\nbecause under these stipulated facts, the time of injury is\ncertain. True, the courts dealing with the asbestos cases\nwrestled with the issue of when bodily injury occurred: was the\nemployee injured when he inhaled asbestos fibers (the exposure\n\n 10\n\fHouston v. Avondale Shipyards, Inc., 506 So. 2d 149 (La.Ct.App.),\n\nwrit denied, 512 So. 2d 460 (La.1987); Ducre v. Mine Safety\n\nAppliances Co., 645 F. Supp. 708 (E.D.La.1986) (applying Louisiana\n\nlaw), approved, 833 F.2d 588 (5th Cir.1987); Porter v. American\n\nOptical Corp., 641 F.2d 1128 (5th Cir.) (applying Louisiana law),\n\ncert. denied, 454 U.S. 1109, 102 S. Ct. 686, 70 L. Ed. 2d 650 (1981).\n\nIn Cole, the most recent Louisiana Supreme Court decision in this\n\narea, the court answered the question of how to determine the\n\nnumber of occurrences when the victim is repeatedly injured during\n\nmultiple policy years. Adopting the exposure rule, the court\n\nconcluded that the inhalation of asbestos fibers causes bodily\n\ninjury as defined in the \"occurrence\" policies. The court held\n\nthat an employee suffered bodily injury from an occurrence when the\n\nemployee inhaled asbestos fibers during a policy year, and all\n\nsubsequent inhalation during that year arose out of the same\n\noccurrence. When the employee inhaled asbestos during the next\n\npolicy year, again, the employee suffered bodily injury from an\n\noccurrence. Thus, each employee suffered injury from an occurrence\n\nduring each year in which he inhaled asbestos. Cole, 599 So. 2d at\n\n1075-80.\n\n We believe the Louisiana Supreme Court would apply the same\n\nanalysis to the stipulated facts of this case. When a priest\n\n\n\nrule) or was the employee injured once asbestosis manifested\nitself (the manifestation rule)? But the court overlooked the\nsimilarity, based upon this record, concerning the indivisibility\nof the injury. The asbestos cases provide significant direction\nregarding the number of occurrences when a victim suffers\nrepeated injuries during multiple policy years.\n\n 11\n\fmolested a child during a policy year, there was both bodily injury\n\nand an occurrence, triggering policy coverage. All further\n\nmolestations of that child during the policy period arose out of\n\nthe same occurrence. When the priest molested the same child\n\nduring the succeeding policy year, again there was both bodily\n\ninjury and an occurrence. Thus, each child suffered an\n\n\"occurrence\" in each policy period in which he was molested. See\n\nDiocese of Winona v. Interstate Fire & Cas. Co., 841 F. Supp. 894,\n\n898-99 (D.Minn.1992) (accepting that the church's negligent\n\nsupervision of a priest can constitute an occurrence during each\n\npolicy period in which a child was molested); Cole, 599 So. 2d at\n\n1075-80 (holding that policy coverage is triggered in each year\n\nthat the plaintiff inhaled asbestos); Houston, 506 So. 2d at 150\n\n(\"It is reasonable to conclude that each year during which\n\nplaintiff was exposed, he suffered additional injury for which\n\nthere may be liability which triggers [the insurer's] risk exposure\n\nunder each of its policies in effect during plaintiff's\n\nexposure.\"); Ducre, 645 F. Supp. at 713 (\"Thus, this Court\n\nconcludes that liability under the [insurer's] insurance policies\n\nshall be determined on a yearly basis, and that [the insurer] is on\n\nthe risk for each plaintiff asserting a claim, for each policy\n\nperiod during which the plaintiff was exposed to silica dust.\");\n\nPorter, 641 F.2d at 1145; Forty-Eight Insulations, 633 F.2d at\n\n1226.\n\n In the case of Preferred and Fireman's Fund, both of which\n\n\n\n\n 12\n\fissued a three-year occurrence policy, the analysis is the same.7\n\nFor each child who was molested while either of these carriers was\n\non the risk, coverage was triggered. All subsequent molestations\n\nduring the policy period constitute \"repeated exposure to\n\nconditions which unexpectedly ... result in personal injury.\" (The\n\n\"condition\" is the Diocese's negligent supervision of the priest\n\nduring the policy period). Houston General argues that the\n\ncarriers issuing three-year policies should bear the same burden as\n\nif they had issued three one-year policies, thus allocating the\n\nloss on a per year basis. Not only does this ignore policy\n\nlanguage, but it is also inconsistent with the intent of the\n\nparties. Clearly, a three-year \"occurrence\" policy provides less\n\ncoverage than three one-year policies, because an occurrence could\n\nlast longer than one year. While an insurance policy should be\n\ninterpreted in favor of the insured, we see no justification for\n\nproviding more insurance coverage than the insured bargained for.\n\nPareti v. Sentry Indem. Co., 536 So. 2d 417, 420 (La.1988)\n\n(\"[C]ourts have no authority to alter the terms of policies under\n\nthe guise of contractual interpretation when the policy provisions\n\nare couched in unambiguous language.\").\n\n We reject the district court's use of the first encounter\n\nrule for the following reasons. First, and foremost, it flouts the\n\n 7\n This is an issue of first impression in Louisiana. While\nthe courts have dealt with multi-injury, multi-policy cases, they\nhave never addressed a situation where some of the policies last\nfor more than one year. See e.g., Cole, 599 So. 2d at 1074 n. 47\n(involving thirty-three one-year policies); Houston, 506 So. 2d\nat 150, 154 (involving one-year policies, except for one\nsix-month policy).\n\n 13\n\fpolicy language. The insurance policies all excluded bodily injury\n\noccurring outside of the policy period. The district court, and\n\nLloyd's in oral argument, failed to recognize the distinction\n\nbetween the future damages resulting from a molestation and the\n\nsubsequent injurious acts of molestation. All the policies cover\n\nconsequential damages resulting from a molestation. However, a\n\nsubsequent molestation, occurring outside the policy period, is not\n\na consequential damage of the previous molestation; it is a new\n\ninjury, with its own resulting damages. Second, under these facts,\n\nthe first encounter rule would prevent insurance companies from\n\nlimiting their coverage to damages emanating from molestations\n\ntaking place during their policy period. And third, the first\n\nencounter rule is an inequitable administrative rule. The first\n\nencounter rule would deny coverage to a child who was molested a\n\nday before the Diocese procured insurance coverage, even though\n\nseparate molestations continued through the policy year and beyond.\n\n By allocating the loss according to the language of the\n\ninsurance policies, we avoid the shortcomings of the reductive\n\nfirst encounter rule. Each carrier is responsible, up to its\n\noccurrence limits, for all damages emanating from molestations that\n\noccur during the insurer's policy period. All molestations\n\noccurring outside a carrier's policy are covered by the insurer on\n\nthe risk at the time of the molestation. This approach maximizes\n\ncoverage for the insured and allocates the loss according to the\n\npolicy language.\n\n If the number of molestations were known and the damages from\n\n\n 14\n\feach molestation proved, we could allocate the loss according to\n\nthe actual injury suffered by each child during each policy period.\n\nIt may be that a child's psychological injury wrought by prolonged\n\nmolestations during Preferred's three years of coverage dwarfs the\n\ninjury emanating from later molestations during the time the\n\nDiocese was self-insured. If that were the case, Preferred would\n\nbear a significantly larger amount of the loss than would the\n\nDiocese, Lloyd's and Interstate. Unfortunately, there is no\n\nmeasure of the amount of damage caused by the molestations during\n\nany given policy period. This leaves us with only one avenue under\n\nthe policies' language, which is to allocate the loss based solely\n\nupon the policy periods.\n\nB. Diocese v. Gallagher & Diocese v. Bassett\n\n1. Diocese v. Gallagher\n\n In Gallagher's self-insurance proposal to the Diocese, it\n\nstated that the Diocese would be \"fully covered\" for all losses\n\nabove the loss fund. Gallagher failed to mention that once Lloyd's\n\nreached its excess aggregate limit of $450,000 for the year, the\n\n$100,000 per occurrence obligation reverted to the Diocese. The\n\nDiocese, surprised by this gap in coverage, filed suit against\n\nGallagher. While the Diocese filed within the ten year\n\nprescriptive period for a contractual claim, it missed the one-year\n\nperiod for a delictual claim. Thus, the Diocese's suit against\n\nGallagher will rise or fall on the nature of its claim.\n\n An insured's claim against its insurance agent is contractual\n\nonly when the agent expressly warrants a specific result;\n\n\n 15\n\fotherwise, it is delictual. Roger v. Dufrene, 613 So. 2d 947, 949\n\n(La.1993). In Roger, the insured, Crewboats, Inc., told its agent\n\n\"to provide full coverage for Crewboats, Inc. under all\n\ncircumstances.\" Id. at 950. An employee, using his own vehicle\n\nfor business purposes, collided with a motorist, spawning a lawsuit\n\nagainst Crewboats, Inc. To its surprise, Crewboats found that its\n\nautomobile policy did not cover employee-owned vehicles. The\n\nLouisiana Supreme Court held that Crewboats claim against its agent\n\nwas delictual, because the insurance agent did not specifically\n\nwarrant that insurance coverage for employee-owned vehicles would\n\nbe obtained. Id.\n\n Here, the Diocese argues that Gallagher warranted a specific\n\nresult when it told the Diocese: \"If the Loss Fund is exhausted,\n\nthe Diocese[ ] becomes fully insured and losses are paid as they\n\nwould be under a conventional insurance program.\" This\n\nrepresentation, however, is no more specific than \"full coverage\n\nfor Crewboats, Inc. under all circumstances.\" As we read Roger,\n\nfor an insured to have a contractual claim against its agent, the\n\nagent must describe the policy coverage in specific detail.\n\nGallagher's representation is a general assurance rather than the\n\nwarranty of specific coverage. Under Louisiana law, the claim is\n\ndelictual, and the prescriptive period has run.8\n\n 8\n The Diocese attempts to distinguish Roger by arguing that\nin this case the insurance agent offered the coverage instead of\nbeing requested to obtain the coverage. But the Roger court's\nreliance on the President of Crewboats' testimony that he did not\n\"specifically\" request that employee-owned vehicles be covered\nsuggests that if he had made such a request, Crewboats would have\nhad a contractual claim. Id. The court showed no interest in\n\n 16\n\f2. Diocese v. Bassett\n\n The Diocese alleges that Bassett, the administrator of the\n\nself-insurance plan, breached its obligation to properly administer\n\nthe plan by refusing to contribute money from the loss fund toward\n\nthe settlement of molestation claims arising before July 1981, when\n\nthe self-insurance program began. The Diocese has offered no\n\nsummary judgment evidence supporting any breach of duty. Bassett\n\nrefused to allocate loss fund monies toward molestation claims\n\narising before 1981 because those claims were not covered by the\n\ninsurance policies it was administering.\n\nC. Pacific v. Louisiana Companies\n\n Pacific, an excess carrier, sued its insurance agent,\n\nLouisiana Companies, alleging that the agent failed to inform\n\nPacific that Preferred's policy (the underlying primary insurance\n\npolicy) was a three-year policy instead of a one-year policy.\n\nBecause of the alleged omission, Pacific believed Preferred's\n\ncoverage to be $500,000 per year, instead of $500,000 per\n\noccurrence for three years. Based upon our analysis above,\n\nPreferred's coverage is $500,000 per occurrence per policy period.\n\nThus, the court erred when it granted Louisiana Companies' motion\n\nfor summary judgment.\n\n\nwho spoke first; instead, it focused on the specificity of the\nrepresentation itself.\n\n The Diocese also seeks to avoid the judgment by arguing\n that it is entitled to recovery based upon either a\n quasi-contract theory or detrimental reliance. Because\n these arguments were not raised below, we will not entertain\n them here. See In re Goff, 812 F.2d 931, 933 (5th\n Cir.1987).\n\n 17\n\fD. Interest\n\n The district court awarded interest, but failed to state when\n\nit should begin to run. Some parties argue that only post-judgment\n\ninterest should be awarded, but because we reverse and remand for\n\nreallocation of the loss, there is no post-judgment interest. The\n\nonly other contention on interest charge is Interstate's argument\n\nthat Pacific should be responsible for prejudgment interest to the\n\nextent that it failed to fully participate in the settlement of the\n\nmolestation claims, and we agree. See Trustees of the Univ. of Pa.\n\nv. Lexington Ins. Co., 815 F.2d 890, 908-09 (3d Cir.1987); Mini\n\nTogs Products, Inc. v. Wallace, 513 So. 2d 867, 872-75 (La.Ct.App.),\n\nwrit denied, 515 So. 2d 447 (La.1987).\n\n III. Conclusion\n\n When a child was first molested during a policy period, there\n\nwas an occurrence triggering coverage. All subsequent molestations\n\nof that child during the policy period, as well as the resulting\n\ninjury to the child's parents, arose out of that same occurrence.\n\nDamages are attributed equally to the occurrence of molestations\n\nwithin the respective policy periods.\n\n We AFFIRM the court's judgment in favor of Gallagher and\n\nBassett; the judgment is otherwise REVERSED. We REMAND the case\n\nto the district court for further proceedings consistent with this\n\nopinion.9\n\n 9\n On appeal, Pacific floats the argument that they are not\nbound by the district court's judgment because they did not agree\nwith the other insurers to be bound by it. If this were the\ncase, all judgments would be nothing more that advisory opinions.\nThe interpretation of an insurance policy is a question of law,\n\n 18\n\f AFFIRMED in Part; REVERSED in Part and REMANDED.\n\n\n\n\nand Pacific is bound by the resulting judgment whether it likes\nit or not.\n\n 19\n\f", "ocr": false, "opinion_id": 6463 } ]	Fifth Circuit	Court of Appeals for the Fifth Circuit	F	USA, Federal
6,475	Garwood, King, Politz	1994-05-23	false	donna-independent-school-district-v-balli	Balli	Donna Independent School District v. Balli	DONNA INDEPENDENT SCHOOL DISTRICT and Hidalgo County, Plaintiffs-Appellants, v. Guillermina G. BALLI, Etc., Et Al., Defendants; Guillermina G. BALLI, Individually, Etc., and FDIC, as Receiver for Hidalgo County Bank & Trust Co., Defendants/Cross-Defendants-Appellees, v. CITY OF DONNA, Defendant/Cross-Claimant-Appellant	Kent M. Rider, Caíame, Linebarger & Graham, Austin, TX, for appellant., Alejandro Moreno, Jr., Edinburg, TX, for Guillermina G. Balli., Christopher J. Bellotto, Washington, DC, for FDIC.	null	null	null	null	null	null	null	null	null	null	11	Published	null	<parties id="b190-2"> DONNA INDEPENDENT SCHOOL DISTRICT and Hidalgo County, Plaintiffs-Appellants, v. Guillermina G. BALLI, Etc., et al., Defendants, Guillermina G. BALLI, Individually, Etc., and FDIC, as Receiver for Hidalgo County Bank & Trust Co., Defendants/Cross-Defendants-Appellees, v. CITY OF DONNA, Defendant/Cross-Claimant-Appellant. </parties><br><docketnumber id="b190-8"> No. 93-7243. </docketnumber><br><court id="b190-9"> United States Court of Appeals, Fifth Circuit. </court><br><decisiondate id="b190-11"> May 24, 1994. </decisiondate><br><attorneys id="b190-19"> Kent M. Rider, Caíame, Linebarger & Graham, Austin, TX, for appellant. </attorneys><br><attorneys id="b190-20"> Alejandro Moreno, Jr., Edinburg, TX, for Guillermina G. Balli. </attorneys><br><attorneys id="b190-21"> Christopher J. Bellotto, Washington, DC, for FDIC. </attorneys><br><judges id="b190-23"> Before POLITZ, Chief Judge, KING and GARWOOD, Circuit Judges. </judges>	[ "21 F.3d 100" ]	[ { "author_str": "Politz", "per_curiam": false, "type": "010combined", "page_count": 4, "download_url": "http://www.ca5.uscourts.gov/opinions\\pub\\93/93-07243.CV0.wpd.pdf", "author_id": null, "opinion_text": "21 F.3d 100\n 73 A.F.T.R.2d (RIA) 94-2116\n DONNA INDEPENDENT SCHOOL DISTRICT and Hidalgo County,Plaintiffs-Appellants,v.Guillermina G. BALLI, Etc., et al., Defendants,Guillermina G. BALLI, Individually, Etc., and FDIC, asReceiver for Hidalgo County Bank & Trust Co.,Defendants/Cross-Defendants-Appellees,v.CITY OF DONNA, Defendant/Cross-Claimant-Appellant.\n No. 93-7243.\n United States Court of Appeals,Fifth Circuit.\n May 24, 1994.\n \n Kent M. Rider, Calame, Linebarger & Graham, Austin, TX, for appellant.\n Alejandro Moreno, Jr., Edinburg, TX, for Guillermina G. Balli.\n Christopher J. Bellotto, Washington, DC, for FDIC.\n Appeal from the United States District Court for the Southern District of Texas.\n Before POLITZ, Chief Judge, KING and GARWOOD, Circuit Judges.\n POLITZ, Chief Judge:\n \n \n 1\n Three Texas taxing units, the City of Donna, the Donna Independent School District, and Hidalgo County, appeal a judgment prohibiting their foreclosure on property tax liens without preserving liens held by the Federal Deposit Insurance Corporation in its capacity as receiver for certain failed financial institutions. We affirm.\n \n Background\n \n 2\n The underlying facts would have involved a routine effort by local taxing units to collect delinquent ad valorum real estate taxes but for one development--the financial institutions holding deed of trust liens on the properties became insolvent and the FDIC was appointed receiver. The affected realty consists of 110 lots owned by Reynaldo Balli and his family, all but one of which were mortgaged to Hidalgo County Bank & Trust Company, with the remaining lot being mortgaged to The First National Bank of Weslaco. The taxing units brought a foreclosure action against the Ballis and named the FDIC in its capacity as receiver for the banks. The FDIC removed to federal court which entered summary judgment for the taxing units but decreed that foreclosure on the tax liens would be subject to the FDIC's deed of trust liens. The taxing units timely appealed.\n \n Analysis\n \n 3\n The taxing units contend that the FDIC's liens are subordinate to the tax liens and are thus extinguished in a tax sale. The FDIC agrees that the tax liens have priority but maintains that 12 U.S.C. Sec. 1825(b)1 preserves its liens. We recently addressed that issue in Matagorda County v. Law,2 holding that the local taxing authorities may not foreclose on property subject to an FDIC lien without the FDIC's consent. That precedent governs.\n \n \n 4\n Alternatively, the taxing units maintain that the operation of section 1825(b)(2) works a compensable taking under the fifth amendment. That is a closer question. Recognizing in Matagorda County that the statute delayed the collection of delinquent taxes, we did not find a problem of constitutional dimension in the length of the delay presented therein. We noted, however, that \"[u]nmitigated delay, coupled with diminishment of distinct investment-backed expectations, may, at some point, infringe on the entire 'bundle' of rights enjoyed by the [taxing units] to the point that a compensable taking occurs.\"3\n \n \n 5\n The delay in Matagorda County was 27 months; the FDIC acquired its liens in August of 1990 and the judgment decreeing the tax liens was entered on November 10, 1992. We characterized that period as \"approaching\" the maximum permissible without being a taking.4 The delay in the instant case is significantly longer. The FDIC acquired the First National Bank of Weslaco lien on February 20, 1987 and the Hidalgo County Bank & Trust lien on July 27, 1989. Judgment decreeing the tax liens was entered herein on April 1, 1993.\n \n \n 6\n We would likely find a taking herein but for a critical distinction between the facts of this case and those in Matagorda County. There, the adjudged value of the property was $333,660 and the outstanding balance on the notes underlying the FDIC lien was $891,000 plus interest. \"As a practical matter,\" we found that the taxing units could not sell the property with the FDIC lien in place. Here, by contrast, the value of the property is $529,578 and the outstanding balance on the Balli notes is $196,689.73 plus interest.5 Unlike Matagorda County, the survival of the FDIC liens does not prevent a tax sale. The causal connection between the delay and the statutory protection accorded the FDIC's liens is significantly attenuated. We perceive no taking cognizable under the fifth amendment in this factual scenario.\n \n \n 7\n AFFIRMED.\n \n \n \n 1\n 12 U.S.C. Sec. 1825(b)(2) provides:\n No property of the Corporation shall be subject to levy, attachment, garnishment, foreclosure or sale without the consent of the Corporation, nor shall any involuntary lien attach to the property of the Corporation [emphasis added].\n \n \n 2\n 19 F.3d 215 (5th Cir.1994)\n \n \n 3\n 19 F.3d at 225\n \n \n 4\n 19 F.3d at 225 n. 11\n \n \n 5\n The taxing units place the value at $333,660 and the delinquent taxes at $154,039. From these figures, they argue that preservation of the FDIC liens precludes a tax sale because there is no equity in the property. The Final Judgment, however, indicates value of $529,578 for Lots 1-109 and 117, the tracts at issue herein, and delinquent taxes of $73,488.83 plus interest. There is sufficient equity to permit a tax sale\n \n \n ", "ocr": false, "opinion_id": 6475 } ]	Fifth Circuit	Court of Appeals for the Fifth Circuit	F	USA, Federal
6,521	Davis, Duhe, Per Curiam, Wisdom	1994-06-21	false	matthews-v-morales	Matthews	Matthews v. Morales	Kevin Deon MATTHEWS, Plaintiff-Appellant, v. Dan MORALES, Attorney General of the State of Texas, Defendant-Appellant	Kevin Deon Matthew, pro se., Theresa Ann Kraatz, Asst. Atty. Gen., Dan Morales, Atty. Gen., Austin, TX, for defen- ' dant-appellee.	null	null	null	null	null	null	null	null	null	null	15	Published	null	<parties id="b194-3"> Kevin Deon MATTHEWS, Plaintiff-Appellant, v. Dan MORALES, Attorney General of the State of Texas, Defendant-Appellant. </parties><br><docketnumber id="b194-6"> No. 93-4907. </docketnumber><br><court id="b194-7"> United States Court of Appeals, Fifth Circuit. </court><br><decisiondate id="b194-9"> June 21, <em> 1994. </em> </decisiondate><br><attorneys id="b194-18"> Kevin Deon Matthew, pro se. </attorneys><br><attorneys id="b194-19"> Theresa Ann Kraatz, Asst. Atty. Gen., Dan Morales, Atty. Gen., Austin, TX, for defen- ' dant-appellee. </attorneys><br><judges id="b194-21"> Before WISDOM, DAVIS and DUHÉ, Circuit Judges. </judges>	[ "23 F.3d 118" ]	[ { "author_str": "Per Curiam", "per_curiam": false, "type": "010combined", "page_count": 5, "download_url": "http://www.ca5.uscourts.gov/opinions\\pub\\93/93-04907.CV0.wpd.pdf", "author_id": null, "opinion_text": "23 F.3d 118\n Kevin Deon MATTHEWS, Plaintiff-Appellant,v.Dan MORALES, Attorney General of the State of Texas,Defendant-Appellant.\n No. 93-4907.\n United States Court of Appeals,Fifth Circuit.\n June 21, 1994.\n \n Kevin Deon Matthew, pro se.\n Theresa Ann Kraatz, Asst. Atty. Gen., Dan Morales, Atty. Gen., Austin, TX, for defendant-appellee.\n Appeal from the United States District Court for the Eastern District of Texas.\n Before WISDOM, DAVIS and DUHE, Circuit Judges.\n PER CURIAM:\n \n \n 1\n Kevin Deon Matthews appeals the district court's dismissal of his suit alleging that Sec. 32.22 of the Texas Family Code violates his free exercise of religion. Because we find that Sec. 32.22 is logically connected to legitimate state penological concerns, we affirm.\n \n I.\n \n 2\n Kevin Deon Matthews, an inmate incarcerated in the Texas state penitentiary, filed a pro se civil rights suit in federal district court. He argues that Sec. 32.22 of the Texas Family Code1 infringes his freedom of religion, equal protection and due process by restricting his ability to change his name. Matthews is an African-American Muslim and contends that:\n \n \n 3\n according to the Muslim religion, once you come under the Islamic faith, you are required to have your name changed. The reason you have your name changed is because it ties you into the \"attributes of God.\" It's symbolic of a spiritual change. If I am unable to change my name, I am not practicing my religion freely.\n \n \n 4\n Matthews sought the grant of a petition for name change, and declaratory and injunctive relief.\n \n \n 5\n Morales filed a motion to dismiss. The magistrate judge determined that the statute was religiously neutral and not directed at any particular religious group. He concluded that the statute was enacted for security reasons, namely so that a felon could not change his name and evade detection and to preserve a felon's criminal history. He concluded that Sec. 32.22 was not unconstitutional \"even though it may incidentally burden plaintiff's right to freedom of religion.\" He also determined that Matthews failed to state a claim under equal protection or due process.\n \n \n 6\n Although Matthews' motion to enlarge time to file written objections to the magistrate's report was granted, he failed to file objections. The district court issued a final judgment, adopting the magistrate's findings and recommendations, granting Morales' motion to dismiss.\n \n II.\n \n 7\n Matthews argues that Sec. 32.22 is unconstitutional because it violates his right as a Muslim to the free exercise of religion. He also argues that the statute is overly broad.\n \n \n 8\n Matthews relies on this circuit's decision in Felix v. Rolan, 833 F.2d 517 (5th Cir.1987), in which this court affirmed the district court's dismissal of a prisoner's Sec. 1983 complaint. We held that:\n \n \n 9\n The adoption of Muslim names by inmates practicing that religion is generally recognized to be an exercise of both first amendment and religious freedom. Restrictions on these rights pass constitutional muster only if they are no greater than is necessary to further important or substantial state interests.\n \n \n 10\n Id. at 518-519 (citations omitted). This court went on to determine that the state's legitimate interest of prison security justified requiring the prisoner to sign in under both his committed name and his legal Muslim name. See, also, Barrett v. Virginia, 689 F.2d 498 (4th Cir.1982) (a Virginia statute prohibiting incarcerated persons from legally changing names is overly broad and implicates an inmate's right to freedom of religion).\n \n \n 11\n In Felix, this court determined that prison regulations implicating free exercise \"pass[es] constitutional muster only if they are no greater than is necessary to further important or substantial state interests.\" However, in O'Lone v. Estate of Shabazz, 482 U.S. 342, 349, 107 S. Ct. 2400, 2405, 96 L. Ed. 2d 282 (1987), the Supreme Court held that \"prison regulations alleged to infringe constitutional rights are judged under a 'reasonableness' test less restrictive than that ordinarily applied to alleged infringements of fundamental constitutional rights.\"\n \n \n 12\n In O'Lone, prisoners claimed that regulations barring them from returning to the main prison building where Friday Jumu'ah services were being held violated their free exercise. The Court found that the policy was based on security because returning prisoners had to pass through the main gate, which was a high security risk area, and was also based on minimizing overcrowding. The Court determined that the regulation was reasonable because its terms had \"a logical connection to legitimate governmental interests\" of security and minimizing overcrowding. Id. at 350, 107 S.Ct. at 2405.\n \n \n 13\n The Court also considered whether \"alternative means of exercising that right ... remain open to prison inmates.\" Although prisoners could not attend Jumu'ah services, they could attend other Muslim religious ceremonies, were given a special diet, and were entitled to special arrangements during Ramadan. Id. at 351, 107 S.Ct. at 2405.\n \n \n 14\n Under the standard announced in O'Lone, we must determine whether a statute barring name changes by prisoners and probationers, like the regulation barring prisoners from returning to the main building, has \"a logical connection to legitimate governmental interests.\" Sec. 32.22 was enacted for security reasons. It is intended to protect the ability to identify persons sought on warrant and detainer, and to preserve the criminal history of felons. Matthews himself concedes in his brief that these are \"legitimate state penological concerns.\"\n \n \n 15\n We find that the statute barring name changes by felons does have a logical connection to a legitimate governmental interest. Therefore, Sec. 32.22 does not violate Matthews' free exercise of religion.\n \n \n 16\n AFFIRMED.\n \n \n \n 1\n This section provides:\n a) For good cause shown the court shall order a change of name for any person other than a person finally convicted of a felony as requested if it finds that the change is in the interest or to the benefit of the petitioner and in the interest of the public.\n b) A court may order a change of name for a person finally convicted of a felony if, in addition to the requirements of Subsection (a), the person has:\n 1) received a certificate of discharge by the pardons and paroles division of the Texas Department of Criminal Justice or completed a period of probation ordered by a court and at least two calendar years have elapsed from the date of the receipt of discharge or completion of probation; or\n 2) been pardoned.\n \n \n ", "ocr": false, "opinion_id": 6521 } ]	Fifth Circuit	Court of Appeals for the Fifth Circuit	F	USA, Federal
6,520	null	1994-06-20	false	tks-video-inc-v-denton-county-tex	null	TK's Video, Inc. v. Denton County, Tex.	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": 15, "download_url": "http://www.ca5.uscourts.gov/opinions\\pub\\93/93-04631.CV0.wpd.pdf", "author_id": null, "opinion_text": " IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE FIFTH CIRCUIT\n\n\n\n No. 93-4631\n\n\n\nTK'S VIDEO, INC.,\n Plaintiff-Appellant,\n\n versus\n\nDENTON COUNTY, TEXAS,\n Defendant-Appellee.\n\n****************************************************************\n\n\n 93-5234\n\n\nTK'S VIDEO, INC.,\n Plaintiff-Appellee,\n\n versus\n\nDENTON COUNTY, TEXAS,\n Defendant-Appellant.\n\n\n\n Appeal from the United States District Court\n for the Eastern District of Texas\n\n (June 20, 1994)\n\nBefore GOLDBERG, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit Judges.\n\nHIGGINBOTHAM, Circuit Judge:\n\n TK's Video, Inc., an adult book and video store, sued Denton\n\nCounty, Texas, contending its licensing requirements for \"adult\"\n\nbusinesses violate the First and Fourteenth Amendments.1 The\n\ndistrict court held several licensing requirements\n\n\n 1\n This Order of Denton County is attached as Appendix A.\n\funconstitutional, severed them, upheld the others, and awarded\n\nattorney's fees. Both TK's and Denton County appealed. We reject\n\ncontentions that the County's licensing scheme was impermissibly\n\nbroad and failed to provide adequate procedural protection,\n\nincluding judicial review. We affirm except in one particular. We\n\nfind that the County regulation fails to assure maintenance of the\n\nstatus quo while processing an application for a license by a\n\nbusiness existing when the County adopted its regulation.\n\n I.\n\n Erotic nonobscene printed matter, films, and live\n\nentertainment are sheltered by the First Amendment, Mitchell v.\n\nCommission on Adult Entertainment Establishments, 10 F.3d 123, 130\n\n(3rd Cir. 1993), but enjoy less protection than some other forms of\n\nspeech such as political speech. Young v. American Mini Theatres,\n\nInc., 427 U.S. 50, 70 (1976). There is no contention that TK's\n\nsells obscene pornographic material. Rather, TK's is regulated as\n\nan adult book and video store.\n\n We distinguish between regulating the content and regulating\n\nthe consequence of protected activity. City of Renton v. Playtime\n\nTheatres, Inc., 475 U.S. 41, 46-48 (1986). A content-neutral time,\n\nplace, or manner restriction must (1) be justified without\n\nreference to the content of the regulated speech; (2) be narrowly\n\ntailored to serve a significant or substantial governmental\n\ninterest; and (3) preserve ample alternative means of\n\ncommunication. Id.\n\n\n\n\n 2\n\f Under the first City of Renton factor, the Denton County order\n\nmust justify its restrictions by reference to effects attending the\n\nregulated speech. The order, by its own terms, combats pernicious\n\nside effects of adult businesses such as prostitution, disease,\n\nstreet crime, and urban blight. It does not censor, prevent\n\nentrepreneurs from marketing, or impede customers from obtaining\n\ncommunicative material. The County's regulation does not on its\n\nface regulate content. Rather, the regulation is aimed at the\n\nimpact on the surrounding community. But there are also procedural\n\nlimits to regulating even at this lesser level of protection.\n\n In FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990),\n\nJustice O'Connor, writing for Justices Stevens and Kennedy, and\n\njoined in the judgment by Justices Brennan, Marshall, and Blackmun,\n\nstated that content-neutral regulations contain adequate procedural\n\nsafeguards when (1) any prior restraint before judicial review of\n\nthe licensing process is for a specified brief period during which\n\nthe status quo is maintained; and (2) there is prompt judicial\n\nreview after denial of a license.\n\n II.\n\n TK's first charges that the Denton County order, which\n\nprovides that a county official shall issue an operating license\n\nwithin 60 days after receiving the application unless he discovers\n\none of several disqualifying facts, fails to provide adequate\n\nprocedural safeguards.2 TK's argues that the county must have a\n\n 2\n The Order provides that \"[a]ll decisions of the county\ndirector of public works become final within thirty (30) days.\"\nNo one contends that this provision prevents an immediate appeal\n\n 3\n\fdeadline shorter than 60 days and that it must not interfere with\n\nnormal business operation during the application process.\n\n Under FW/PBS, the County must ensure that any restraint before\n\njudicial review is limited to a specified brief period. In Teitel\n\nFilm Corp. v. Cusack, 390 U.S. 139, 141 (1967) (per curiam), the\n\nSupreme Court found that 50 to 57 days is not a specified brief\n\nperiod. It is true that Denton County's order placed a 60-day\n\nlimit on licensing procedures after receipt of an application. But\n\nthe regulation in Teitel was content-based. The ordinance in\n\nTeitel also required administrators to review films before they\n\ncould be shown, a relatively easy task compared to licensing adult\n\nbusinesses and the people who run them. Licensing entails\n\nreviewing applications, performing background checks, making\n\nidentification cards, and policing design, layout, and zoning\n\narrangements. We are persuaded that Denton County's order creates\n\nless of a danger to free speech and requires a more time-consuming\n\ninquiry than screening movies. We conclude that here 60 days for\n\nacting on license applications imposes no undue burden.\n\n TK's also urges that the regulation is invalid for a related\n\nreason. It urges that Denton County fails to assure maintenance of\n\nthe status quo. The contention is that the County cannot\n\nconstitutionally shut down an existing business while its\n\napplication for a license is pending and that TK's was operating\n\nwhen Denton County adopted its regulation. The County points out\n\n\nof a denial of license to the district court of Denton County.\nWe read this language as setting a time within which an appeal\nmust be lodged.\n\n 4\n\fthat it has not attempted to close TK's; that because its\n\nregulation is content- neutral, it is not obligated to refrain from\n\nregulation during the licensing period. The district court\n\nrejected TK's contention concluding that interim regulation is\n\nimplicit in a valid period for issuing a license. This is true as\n\nfar as it goes, but it is qualified by the further limit that the\n\nCounty must maintain the status quo. We agree that an applicant\n\nfor a license not in business when the Order was adopted is not\n\nfree to operate while its license is pending.\n\n Maintaining the status quo means in our view that the County\n\ncannot regulate an existing business during the licensing process.\n\nIt is no answer that the County has not elected to do so. The\n\nabsence of constraint internal to the regulation is no more than\n\nopen ended licensing. Businesses engaged in activity protected by\n\nthe First Amendment are entitled to more than the grace of the\n\nState.\n\n The regulating order does not address the problem. The\n\norder maintains the status quo pending judicial review for\n\nlicensees facing suspension or revocation. An applicant denied a\n\nlicense has a right to de novo review by the state district court\n\nand, by the terms of the Order, filing an appeal stays a Decision\n\nof the Director of Public Works in suspending or revoking a license\n\nuntil final decision by the state district court. Because TK's was\n\nin business when the Order was adopted, its free speech activity\n\ncannot be suppressed pending review of its license application by\n\nthe County.\n\n\n 5\n\f TK's also contends that the Order is deficient in failing to\n\nprovide an automatic stay pending appeal of an administrative\n\ndecision denying an application for a license. This argument is in\n\nessence a twin of the contention that the status quo must be\n\nmaintained. We have concluded that the County cannot alter the\n\nstatus quo during the licensing process. There is then nothing to\n\nstay except a denial of a license. Stated another way, the issue\n\nis whether a business must be allowed to commence operation without\n\na license during judicial review. Here we agree with the district\n\ncourt that a valid time period within which the County can act\n\ncarries the implicit rejection of such required interim licensing.\n\nNor is this unduly restrictive, given the availability of\n\nexpeditious judicial review. A rejected license applicant has\n\nthirty days to seek judicial relief before the order of the\n\nDirector of Public Works becomes final. National Socialist Party\n\nv. Village of Skokie, 432 U.S. 43, 44 (1977).\n\n This does not answer the further question of how much of the\n\ntotal licensing process must be complete within the specified brief\n\nperiod, specifically whether the brief period includes completion\n\nof judicial review. Despite contrary suggestions in Justice\n\nBrennan's opinion in FW/PBS, Inc. and some uncertainty in the\n\nlanguage of Justice O'Connor's opinion in the same case, we read\n\nthe Supreme Court to insist that the state must offer a fair\n\nopportunity to complete the administrative process and access the\n\ncourts within a brief period. A \"brief period\" within which all\n\njudicial avenues are exhausted would be an oxymoron.\n\n\n 6\n\f TK's objects that the order does not provide automatic and\n\nprompt judicial review, or an automatic stay of an order denying a\n\nlicense. As we explained, the Order provides that filing a notice\n\nof appeal to the state district court of Denton County stays an\n\nadministrative decision revoking or suspending a license. So the\n\nfocus of TK's contention is on the absence of a stay of an order\n\ndenying a license. FW/PBS requires only a prompt judicial hearing,\n\na standard that the order meets by giving an unsuccessful license\n\napplicant 30 days to appeal to a district court in Denton County\n\n\"on a trial de novo basis.\" The availability of expeditious\n\njudicial review obviates the need for an automatic stay. National\n\nSocialist Party v. Village of Skokie, 432 U.S. 43, 44 (1977).\n\n III.\n\n A.\n\n TK's urges that the County's list of persons associated with\n\nits business who must be licensed is impermissibly broad. Denton\n\nCounty required a license from numerous persons associated with\n\nadult businesses. The district court, however, struck down\n\nlicensing requirements for stockholders, limited partners, equity\n\nholders and their employees, and property owners and equity holders\n\nassociated with adult businesses from the regulation. This\n\nexclusion is not at issue and the regulation now extends only to\n\nowners, clerks, and employees of adult businesses, corporations or\n\ndirectors of adult businesses and their employees, and partners in\n\nadult businesses and their employees.\n\n\n\n\n 7\n\f Under the licensing provision the County Director of Public\n\nWorks must approve a license unless he finds an enumerated\n\ndisqualifying factor such as a prior adult business regulatory\n\nviolation or a conviction for a certain sexual offense.\n\n Licensing clerks and employees ensures that only persons who\n\nsatisfy basic legal and hygienic standards work in adult\n\nbusinesses. The County also requires that all adult business\n\nemployees wear an identification card at work. The County says\n\nthat this requirement permits it to monitor the work force of adult\n\nbusinesses and to ensure that only duly authorized adults work in\n\nthese enterprises.\n\n While corporations reasonably may be obliged to submit\n\ndetailed business information to obtain a license, the requirement\n\nthat owners and employees disclose personal information to County\n\nofficials is more burdensome. The Denton County order requires\n\nowners and employees to disclose only their age, recent infractions\n\nof certain adult business regulations, and recent convictions for\n\ncertain sexual offenses. The County says that their information\n\nassists in making background checks and preparing identification\n\ncards.\n\n Compelled content-neutral disclosure of owner and employee\n\ninformation can chill protected expression. See Talley v.\n\nCalifornia, 362 U.S. 60, 64 (1960); NAACP v. Alabama ex rel.\n\nPatterson, 357 U.S. 449, 461-62 (1958). This chill could occur\n\neven if suppressing particular expression is unintended. NAACP,\n\n357 U.S. at 461. We insist that countervailing state interests\n\n\n 8\n\fmust further a substantial government interest. Buckley v. Valeo,\n\n424 U.S. 1, 64 (1975) (per curiam). This protective skirt requires\n\na \"relevant correlation\" or \"substantial relation\" between the\n\ninformation required and the government interest. Id.\n\n We are persuaded that requiring owners and employees to supply\n\ninformation about their age and certain prior regulatory\n\ninfractions and sexual offenses substantially relates to the\n\nsubstantial government interest of curtailing pernicious side\n\neffects of adult businesses. The Denton County order does not\n\ndemand comprehensive disclosure of personal information, but only\n\ninformation reflecting ability to function responsibly in the adult\n\nbusiness setting.\n\n The Seventh and Ninth Circuits have invalidated disclosure\n\nrequirements. In Genusa v. City of Peoria, 619 F.2d 1203 (7th Cir.\n\n1980), the court invalidated the required disclosure of past\n\naliases, criminal convictions, and ordinance violations as\n\nunrelated to the city's stated goal of preventing adult businesses\n\nfrom congregating in one location. Id. at 1215-19.\n\n In Acorn Investments, Inc. v. City of Seattle, 887 F.2d 219,\n\n224-26 (9th Cir. 1989), the court invalidated a shareholder\n\ndisclosure rule. The city wanted to use the information to notify\n\nshareholders of ordinance requirements and to hold them legally\n\nresponsible for violations, although officers and directors, not\n\nshareholders, have legal responsibility for businesses. The court\n\nfound no logical connection between the shareholder disclosure rule\n\nand the stated purpose for the information. Id. at 226.\n\n\n 9\n\f Genusa and Acorn are not apposite. The Denton County order\n\noutlines the ambitious agenda of curtailing negative side effects\n\nnot simply of clusters of adult businesses, but of each adult\n\nbusiness. Disclosure of owner and employee personal history might\n\nnot be tailored to locating adult businesses, but it does monitor\n\npersons with a history of regulatory violations or sexual\n\nmisconduct who would manage or work in them. These histories are\n\nplainly correlated with the side effects that can attend these\n\nbusinesses, the regulation of which was the legislative objective.\n\nIn more legalistic and abstract terms, ends and means are\n\nsubstantially related. Insisting on this fit of ends and means\n\nboth assures a level of scrutiny appropriate to the protected\n\ncharacter of the activities and sluices regulation away from\n\ncontent, training it on business offal.\n\n B.\n\n An applicant requesting a license must post a sign on the\n\nbusiness premises disclosing his request. An applicant must also\n\ndisclose his request by advertising in local newspapers. The\n\ndistrict court upheld these disclosure requirements, while striking\n\ndown a requirement requiring applicants to notify property owners\n\nwithin a specified radius of the proposed enterprise.\n\n The two notice provisions that survived challenge in the\n\ndistrict court ensure that potential neighbors know about the\n\nimpending arrival of adult businesses. Notice to others of pending\n\nzoning regulation is supported by a substantial state interest,\n\nserving the practical role of allowing effected persons an\n\n\n 10\n\fopportunity to examine the request and test its accuracy. These\n\nnotice requirements are not onerous. Nor are they disguised\n\ncensorship. Rather, they are typical of notices routinely required\n\nin zoning regulations. We are persuaded that the notice\n\nrequirements are sufficiently tailored to the regulatory objective.\n\n C.\n\n Government cannot tax First Amendment rights, but it can exact\n\nnarrowly tailored fees to defray administrative cost of regulation.\n\nCox v. New Hampshire, 312 U.S. 569, 576-77 (1941). Denton County\n\nrequires each business and individual requesting a license to pay\n\nannual fees of $500 and $50, respectively. The district court\n\nfound these amounts tied to the cost of investigating applicants\n\nand processing licenses. We agree.\n\n D.\n\n We have upheld design and layout regulations for adult film\n\nand video theaters. See FW/PBS, Inc. v. City of Dallas, 837 F.2d\n\n1298, 1304 (5th Cir. 1988), aff'd in part, rev'd in part, vacated\n\nin part, 493 U.S. 215 (1990). The Denton County order contains\n\nspecifications identical to those previously upheld. Completely\n\nprivate and poorly lit viewing booths encourage illegal and\n\nunsanitary sexual activity in adult theatres. See FW/PBS 837 F.2d\n\nat 1304. The design and layout regulations narrowly respond to a\n\nsubstantial governmental interest.\n\n E.\n\n The remaining requirements in the Denton County order for\n\nissuing, suspending, or revoking licenses resemble those in the\n\n\n 11\n\fFW/PBS ordinance, which survived constitutional challenge. See id.\n\nat 1305-06. These procedures, like those in FW/PBS, can be\n\nobjectively measured and rest on adequate factual bases either\n\nobvious by their terms or ascertainable by reference to other\n\nsources of law. See id. at 1306.\n\n IV.\n\n Denton County argues that the district court abused its\n\ndiscretion by finding that TK's was entitled to attorney's fees.\n\nSee United States v. Mississippi, 921 F.2d 604, 609 (5th Cir.\n\n1991). To receive attorney's fees, a plaintiff must be a\n\nprevailing party, that is, the plaintiff must succeed on a\n\nsignificant issue that achieves some of the benefit the plaintiff\n\nsought in bringing suit. Farrar v. Hobby, 113 S. Ct. 566, 572\n\n(1992). A prevailing party must effect change in the legal\n\nrelationship between plaintiff and defendant. Id. at 572-73.\n\n TK's has succeeded on significant issues and has altered its\n\nlegal relationship to the County. The district court invalidated\n\nlicensure requirements for stockholders, limited partners, equity\n\nholders, and property owners associated with adult businesses. As\n\nwell, the court invalidated the notice requirement in regard to\n\nproperty owners in close proximity to proposed adult businesses.\n\nWe have, in turn, insisted on a status quo provision. These\n\nholdings materially alter the relationship of TK's to the county.\n\n Denton County urges that TK's has not applied for a license,\n\nso the invalidation of any part of the order has not altered any\n\nlegal relationship. This ignores the reality that TK's must apply\n\n\n 12\n\ffor a license to continue operation. After the trial court's and\n\nthis court's judgment, however, TK's must meet fewer requirements.\n\nTK's lawsuit has altered the relevant legal regime.\n\n In Rhodes v. Stewart, 488 U.S. 1 (1988) (per curiam), the\n\nCourt reversed an attorney's fees award after a successful lawsuit\n\nto modify prison policies because one plaintiff had died and the\n\nother had been released. It found that a victory \"could not have\n\nin any way benefited either plaintiff.\" Id. at 4. Similarly, in\n\nTexas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S.\n\n782 (1989), the Court invalidated as vague a school regulation\n\nrequiring that meetings during nonschool hours be conducted only\n\nwith prior approval of the principal. The court suggested that\n\nthis finding alone would not support prevailing party status\n\nwithout \"evidence that the plaintiffs were ever refused permission\n\nto use school premises during nonschool hours.\" Id. at 792.\n\n In Rhodes, the plaintiffs stood little chance of benefiting\n\nfrom the changed policy. They would do so only if they returned to\n\nprison. That chance was too speculative for the surviving\n\nplaintiff and nonexistent for the dead one. As a result, the\n\nlawsuit did not materially alter the legal relationship between the\n\nparties. A similar rationale explains Texas State Teachers, in\n\nwhich the plaintiffs failed to show that the principal had ever\n\nwithheld permission for a meeting. As the plaintiffs may have been\n\nfree to meet regardless of their suit, it was uncertain whether\n\nsuccess on the merits would alter any legal relationship.\n\n\n\n\n 13\n\f In contrast to the plaintiffs in Rhodes and Texas State\n\nTeachers, T.K.'s faces certain regulation. First, TK's must seek\n\na license to continue operation. The original order, partially\n\ninvalidated by the district court, would have required TK's to seek\n\nlicensure of stockholders, limited partners, equity holders, and\n\ncertain property owners, and to notify certain neighbors at its\n\nbusiness location. Unlike the plaintiffs in Rhodes, TK's would\n\nhave been subject to these unconstitutional requirements with\n\nvirtual certainty.\n\n Second, the requirements that TK's seek licenses for certain\n\npersons and notify certain neighbors were not vague or optional,\n\nbut were prerequisites for operation. These invalidated\n\nregulations did not resemble the school rule in Texas State\n\nTeachers because, unlike the principal's unstructured\n\ndecisionmaking process, they were neither indefinite by their terms\n\nnor discretionary in their application. TK's must meet these\n\nrequirements to remain open.\n\n Denton County cites LaGrange Trading Co. v. Broussard, No. 90-\n\n2306, 1993 U.S. Dist. LEXIS 7281 (E.D. La. May 25, 1993), in which\n\nan adult bookstore challenged a zoning ordinance to remain at its\n\npresent location. The court upheld most of the ordinance, but\n\ninvalidated a special permit requirement. From this partial\n\nvictory, the plaintiff sought attorney's fees. The court denied\n\nthe request because the remaining provisions would require the\n\nbusiness to move anyway. Id. at 16. Unlike the plaintiff in that\n\ncase, TK's benefits from its lawsuit.\n\n\n 14\n\f The district court entertained a request by Michael Gross for\n\n$22,487.50 in attorney's fees, but reduced the actual award to\n\n$7,500. Denton County argues that the $7,500 is unreasonably high\n\ngiven the degree of TK's success. In particular, the County notes\n\nthat TK's asserted 72 constitutional challenges to the order, but\n\nprevailed on only 5 of them, a 7% success rate, which might suggest\n\nthat $7,500 of the $22,487.50, or 33% of the requested fees, is too\n\ngenerous. TK's counsel was able and the County's counting fails to\n\ncapture the success of this suit. We do not think so, but even if\n\nthe award is generous, it is not an abuse of discretion.\n\n We affirm the district court's carefully crafted decree in\n\nvirtually all respects. We remand to the district court with\n\ninstruction to enter judgment with the additional declaration that\n\nuntil the order of the Director of Public Works becomes final, an\n\napplicant for a license in business on the effective date of the\n\nOrder cannot otherwise be regulated by the Order.\n\n AFFIRMED in part, VACATED and REMANDED in part.\n\n\n\n\n 15\n\f", "ocr": false, "opinion_id": 6520 } ]	Fifth Circuit	Court of Appeals for the Fifth Circuit	F	USA, Federal
125,973	null	2002-12-16	false	davis-v-united-states	Davis	Davis v. United States	null	null	null	null	null	null	null	null	null	null	null	null	0	Published	null	null	[ "537 U.S. 1094" ]	[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/US/537/537.US.1094.02-7313.html", "author_id": null, "opinion_text": "537 U.S. 1094\n DAVISv.UNITED STATES.\n No. 02-7313.\n Supreme Court of United States.\n December 16, 2002.\n \n 1\n CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT.\n \n \n 2\n C. A. 11th Cir. Certiorari denied. Reported below: 288 F. 3d 1263.\n \n ", "ocr": false, "opinion_id": 125973 } ]	Supreme Court	Supreme Court of the United States	F	USA, Federal
604,136	null	1993-03-31	false	ali-abdul-habib-hakeem-aka-thomas-wooten-v-howard-l-beyer-attorney	null	null	Ali Abdul-Habib Hakeem A/K/A Thomas Wooten v. Howard L. Beyer Attorney General of the State of New Jersey, Howard L. Beyer, Superintendent, and Robert J. Del Tufo, Attorney General of the State of New Jersey, in No. 91-5848 Ali Abdul-Habib Hakeem, in No. 91-5884	null	null	null	null	null	null	null	null	null	null	null	82	Published	null	null	[ "990 F.2d 750" ]	[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/990/990.F2d.750.91-5884.91-5848.html", "author_id": null, "opinion_text": "990 F.2d 750\n Ali Abdul-Habib HAKEEM a/k/a Thomas Wootenv.Howard L. BEYER; Attorney General of the State of NewJersey, Howard L. Beyer, Superintendent, andRobert J. Del Tufo, Attorney General ofthe State of New Jersey,Appellants in No. 91-5848Ali Abdul-Habib Hakeem, Appellant in No. 91-5884.\n Nos. 91-5848, 91-5884.\n United States Court of Appeals,Third Circuit.\n Argued Sept. 21, 1992.Decided March 31, 1993.\n \n James A. Plaisted (argued), Judith A. Hartz, Walder, Sondak, Berkeley & Brogan, P.A., Roseland, NJ, for Ali Abdul-Habib Hakeem.\n Robert J. Del Tufo, Atty. Gen., of NJ, Mark P. Cronin (argued), Office of Atty. Gen., Div. of Crim. Justice, Appellate Bureau, Trenton, NJ, for Howard L. Beyer, Superintendent, and Robert J. Del Tufo, Atty. Gen. of State of NJ.\n Present: HUTCHINSON, ALITO and SEITZ, Circuit Judges.\n OPINION OF THE COURT\n HUTCHINSON, Circuit Judge.\n \n \n 1\n Appellants Howard Beyer, the Superintendent of Trenton State Prison, and Robert Del Tufo, the Attorney General of New Jersey, appeal an order of the United States District Court for the District of New Jersey granting Ali Abdul-Habib Hakeem's (Hakeem)1 petition for a writ of habeas corpus. The district court based its order on a holding that a fourteen and one-half month delay in bringing Hakeem to trial it found attributable to the negligence of the state violated the Speedy Trial Clause of the Sixth Amendment to the United States Constitution. Hakeem cross-appeals rulings of the district court rejecting the other grounds he asserted as a basis for habeas relief.\n \n \n 2\n The district court had jurisdiction over Hakeem's petition pursuant to 28 U.S.C.A. § 2254 (West 1977). We have appellate jurisdiction pursuant to 28 U.S.C.A. § 2253 (West 1971) and 28 U.S.C.A. § 1291 (West Supp.1992).\n \n \n 3\n We will affirm the district court on the issues that are the subject of Hakeem's cross-appeal and, therefore, deny Hakeem appellate relief on that cross-appeal docketed at our No. 91-5884. Except for the double jeopardy issue Hakeem raises on his cross-appeal, we do so essentially for the reasons set forth in the district court's opinion. See Hakeem v. Beyer, 774 F. Supp. 276 (D.N.J.1991).2 On the double jeopardy issue, we set forth our reasoning, which differs somewhat from that of the district court, in Part III of this opinion infra.\n \n \n 4\n On the state's appeal at No. 91-5848, we will vacate the district court's order granting Hakeem a writ of habeas corpus on his claim that the state violated his Sixth Amendment right to a speedy trial and remand the case to it for an evidentiary hearing on the cause of the delay. With respect to the cause of the delay we hold that the district court properly disregarded the presumption of correctness that attaches to a finding of fact of a state court under 28 U.S.C.A. § 2254(d) because the state court's finding was not fairly supported by the record as required by § 2254(d)(8). In situations where a state court's finding of fact is not fairly supported by the record, Townsend v. Sain, 372 U.S. 293, 313, 83 S. Ct. 745, 757, 9 L. Ed. 2d 770 (1963), requires the district court to hold a hearing to resolve those material facts that are in dispute. The district court failed to do this with respect to the cause of the delay, a material fact that is genuinely in dispute on the state record in this case. Accordingly we will remand for an evidentiary hearing on the cause of the delay.\n \n \n 5\n Resolution of the speedy trial issue also requires a balancing of the factors set forth in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), based on appropriate findings of fact and that balancing is a matter for the district court in the first instance. On the record before us, however, we disagree with the district court's decision on which side of the balance some of the factors should be placed and also, to some extent, with the weight it afforded to those factors that go on Hakeem's side. Specifically, we agree with the district court that a fourteen and one-half month delay triggers a Barker inquiry. We also agree with the district court that Hakeem has demonstrated no cognizable prejudice beyond that which is inherent in the fourteen and one-half month delay in bringing him to trial, but we disagree with the district court's conclusion that this delay of itself places the factor of prejudice on Hakeem's side of the balance. We also hold, in partial disagreement with the district court, that Hakeem's assertion of his right to a speedy trial weighs only slightly in his favor.\n \n I.\n \n 6\n Between August 14, 1983 and November 3, 1983, the Neighborhood Market Grocery Store (the \"Market\") located in Newark, New Jersey was robbed four times. On August 14, 1983, three individuals, one armed with a revolver, stole over $100.00. At trial, Elois Johnson (Johnson), the owner, and Joseph Hankerson (Hankerson), a store employee, identified Hakeem as the armed perpetrator. On September 14, 1983, two males again robbed the Market, taking over $100.00. Johnson stated to the police that one of the individuals had robbed his store one month earlier. On October 16, 1983, approximately $200.00 was taken and Johnson informed the police that he believed the same individual was involved in this robbery as well.\n \n \n 7\n The particular robbery that gives rise to this appeal occurred on November 3, 1983. On that day, at approximately 2:50 p.m., three individuals, one armed with a sawed-off shotgun and another with a .38 caliber revolver, entered the Market. They forced Johnson and Hankerson to the back of the store, demanded money and left with between $300.00 and $400.00 in cash and some food stamps contained in a red pouch. Johnson and Hankerson gave the police a description of the robbers and their getaway car. Another witness supplied the police with the car's license number. After the plate was traced to an Oldsmobile owned by Bennie Roberts of Newark, New Jersey, the police established surveillance around Roberts' home.\n \n \n 8\n At approximately 3:35 p.m., police officers stopped a black Oldsmobile fitting the witness's general description of the getaway car. They ordered the three black, male occupants out of the car at gunpoint and frisked them but found no concealed weapons. A search of the car, however, uncovered a loaded 13-gauge sawed-off shotgun partially hidden by a blanket on the rear floor, near where Hakeem had been sitting. The search of the car also revealed a .38 caliber revolver loaded with six hollow-point bullets, four shotgun shells and a red pouch. The driver, Bernie Roberts, and his passengers Mubaarek Hayy (Hayy) and Hakeem were at once arrested.\n \n \n 9\n The police officers placed the three suspects in the back of a patrol car and brought them to the Market for identification. Hankerson and Johnson came outside to view the suspects individually. Both identified Hakeem as one of the robbers. Hakeem was taken to the station house for processing. There, a search of his person produced $15.10 in currency and some food stamps.\n \n \n 10\n At trial, Hakeem vigorously proclaimed his innocence. He stated that just before the robbery he had been visiting his sick father and had then stopped by the offices of the Newark Department of Sanitation to seek employment. There he alleges he spoke with two receptionists. In pretrial interviews that occurred about fourteen months after the alleged visit, the receptionists were unable to corroborate Hakeem's alibi. They were not called at trial. Hakeem's father died prior to trial, in March of 1984.\n \n \n 11\n Hakeem testified he accepted a ride with the two other suspects after he stopped at the Sanitation Department, but knew nothing of the robbery and had never seen the weapons found in the car. He also denied involvement in any of the other robberies and challenged Johnson's identification outside the Market.\n \n \n 12\n On February 7, 1984, a grand jury returned a nine count indictment against Hakeem in connection with the four robberies of the Market. Counts I through III involved the three robberies that occurred before November 3, 1983. The remaining six counts stemmed from the November 3, 1983 robbery of the Market.\n \n \n 13\n On March 7, 1984, Hakeem entered a plea of not guilty to all charges. By a letter dated April 5, 1984 and addressed only to \"Honorable Sir,\" Hakeem complained of excessive bail and that he had not yet been afforded discovery. The letter was forwarded to a state court judge who acknowledged the letter on April 12 and informed Hakeem by form letter that the court was \"[f]orwarding a copy to your attorney with instructions to see you immediately and take any required action.\" Joint Appendix (App.) at 244.\n \n \n 14\n Hakeem asserts that he never met his first appointed defense attorney. He claims he informed his second appointed defender about his alibi on March 23, 1984 but, despite his own repeated requests and the letters forwarded to her by the state judge, she made no attempt to contact his alibi witnesses. Hakeem also expressed dissatisfaction with this defender in a letter to the office of the state public defender in which he asked for the appointment of someone else. That request was refused. Two weeks before trial, Hakeem discharged this second appointed counsel and retained a private attorney. His privately retained counsel then interviewed the two Sanitation Department receptionists and learned they were unable to corroborate Hakeem's story.\n \n \n 15\n In the meantime, on May 5, 1984, Hakeem had presented another pro se request to the state judge seeking dismissal of the charges against him because of unnecessary delay. No other party was served. On May 7, 1984, the state judge acknowledged this second communication from Hakeem and informed him that it too would be forwarded to his counsel. On October 16, 1984, Hakeem claims he executed yet another pro se motion requesting dismissal of the indictment based upon failure to prosecute the case within 180 days of the indictment. Although the record contains a copy of this motion, the prosecutor's office states that it was not served and neither the judge's chambers nor the clerk of the state court have any record of how it was processed.\n \n \n 16\n On December 11, 1984, Hakeem filed his first petition for a writ of habeas corpus with the United States District Court for the District of New Jersey alleging: (1) ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution; (2) denial of a speedy trial in violation of the Sixth and Fourteenth Amendments; and (3) the imposition of cruel and unusual punishments in violation of the Eighth and Fourteenth Amendments. The district court dismissed this petition, without prejudice, for failure to exhaust state remedies based on Hakeem's improper filing and service of his motions upon the relevant parties at the state court level. Wooten v. Butler, No. 84-5134 (D.N.J. Mar. 25, 1985).\n \n \n 17\n On January 7, 1985, the New Jersey Superior Court heard and denied a motion to suppress evidence the state had obtained during Hakeem's arrest. State v. Wooten, No. 604-2-84 (N.J.Super.Ct. Jan. 7, 1985). On January 14, 1985, the Superior Court held a hearing pursuant to State v. Sands, 76 N.J. 127, 386 A.2d 378 (1978), at which it was determined that all of Hakeem's prior convictions would be admissible for impeachment purposes if he chose to testify at trial. On January 16, 1985, the Superior Court held a Wade3 hearing and determined that the state's out-of-court identifications of Hakeem would be admissible.\n \n \n 18\n The state tried Hakeem's co-defendant, Hayy, immediately before Hakeem. At Hayy's trial as well as at Hakeem's, Hankerson, the store clerk, testified somewhat differently than he had at Hayy's Wade hearing on January 9, 1985. At Hayy's Wade hearing, Hankerson identified Hayy as the individual who carried the shotgun and wore a beard on the day of the November 3 robbery. At both Hakeem's and Hayy's trial, however, Hankerson testified it was Hakeem who held the shotgun and wore a beard.\n \n \n 19\n Hakeem's trial counsel never asked for a transcript of the Wade hearing and the state never supplied him with one, but by the time of Hakeem's trial on January 16, 1985, counsel had obtained the specifics of Hankerson's prior testimony from the court reporter who recorded Hayy's Wade hearing. Thus, at Hakeem's trial on January 16, 1985, the defense knew that Hankerson had changed his description of the perpetrator between the time of Hayy's Wade hearing and Hakeem's trial. Based on this information, Hakeem's lawyer used Hankerson's conflicting prior statement in cross-examining him. After Hankerson admitted the contradiction, the defense did not take him through a line by line examination of the prior testimony. The jury found Hakeem guilty on Counts IV through IX, the charges stemming from the November robbery, but acquitted him on the other charges that stemmed from the three earlier robberies.\n \n \n 20\n On March 7, 1985, the New Jersey trial court enhanced Hakeem's sentences after determining he had the status of a persistent offender under state law. It sentenced Hakeem to twenty-five years imprisonment for armed robbery, eighteen months for aggravated assault, five years for unlawful possession of a firearm and five years for unlawful possession of a sawed off shotgun, all to be served concurrently. In addition, the court sentenced Hakeem to fifteen years for possession of a weapon for an unlawful purpose and eighteen months for unlawful possession of hollow-nosed bullets. It ordered the latter two sentences to be served concurrently with each other but consecutively with the first three and credited Hakeem with the 420 days time served during his pretrial and presentence incarceration.\n \n \n 21\n Hakeem appealed his sentences asserting nine issues. The New Jersey Superior Court, Appellate Division, affirmed the convictions in an unpublished per curiam opinion. State v. Wooten, No. A-3657-84T4 (N.J.Super.Ct.App.Div. June 30, 1988) (per curiam). Hakeem filed a petition for certification nunc pro tunc to the New Jersey Supreme Court. It was denied on February 21, 1989. He then sought post-conviction relief from the New Jersey Superior Court based on his belief that his sentences violated the Fifth and Eighth Amendments. The Superior Court dismissed his petition without prejudice. State v. Wooten, No. 609-2-84 (N.J.Super.Ct. Dec. 8, 1989).\n \n \n 22\n On June 11, 1990, Hakeem filed a pro se habeas corpus petition in the United States District Court for the District of New Jersey alleging seven grounds for relief. Hakeem v. Beyer, 774 F. Supp. at 282-83. The district court held, inter alia, that Hakeem was not denied effective assistance of counsel, the identification testimony used at trial was admissible and the state did not engage in prosecutorial misconduct in refusing to furnish Hakeem's counsel with a copy of the possibly exculpatory transcript. Id. at 286-87, 290. The district court did, however, conclude that Hakeem was denied his Sixth Amendment right to a speedy trial. Id. at 296. It ordered Hakeem discharged from custody but immediately stayed that order pending the outcome of this appeal. Id. at 299. Thereafter, on December 23, 1991, this Court denied Hakeem's motion to vacate the stay.\n \n II.\n \n 23\n Hakeem's double jeopardy issue presents a question of law subject to plenary review. See United States v. Garcia, 919 F.2d 881, 885 (3d Cir.1990); Daniel v. Warden, 794 F.2d 880, 883 (3d Cir.1986). The district court's determination that Hakeem has established a violation of his constitutional right to a speedy trial is reviewed de novo. Burkett v. Fulcomer, 951 F.2d 1431, 1437-38 (3d Cir.1991), cert. denied, --- U.S. ----, 112 S. Ct. 3055, 120 L. Ed. 2d 921 (1992). Where an evidentiary hearing is not mandatory, the district court has discretion to determine whether a habeas corpus petitioner is entitled to a hearing and its determination is reviewable for abuse of discretion. Reese v. Fulcomer, 946 F.2d 247, 256 (3d Cir.1991), cert. denied, --- U.S. ----, 112 S. Ct. 1679, 118 L. Ed. 2d 396 (1992). Because the district court never conducted an evidentiary hearing, we also exercise de novo review over the factual inferences the district court drew from the record. Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 n. 5 (3d Cir.), cert. denied, --- U.S. ----, 112 S. Ct. 280, 116 L. Ed. 2d 232 (1991).\n \n III.\n \n 24\n The district court concluded that Hakeem's dual convictions and consecutive sentences for first degree armed robbery under N.J.Stat.Ann. § 2C:15-1 (West 1982) and possession of a weapon for an unlawful purpose under N.J.Stat.Ann. § 2C:39-4 (West Supp.1992) did not place him twice in jeopardy because the Appellate Division of the New Jersey Superior Court determined that the state legislature intended to formulate two specific crimes and punishments. The district court therefore held that the United States Supreme Court's test for double jeopardy announced in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), did not apply. See Hakeem, 774 F. Supp. at 285 (citing Missouri v. Hunter, 459 U.S. 359, 368-69, 103 S. Ct. 673, 679, 74 L. Ed. 2d 535 (1983) (state legislature may proscribe separate punishments for single act)). The district court did not consider the problem that a dual conviction creates when one crime is a lesser included component of the other. See Grady v. Corbin, 495 U.S. 508, 110 S. Ct. 2084, 109 L. Ed. 2d 548 (1990); Illinois v. Vitale, 447 U.S. 410, 100 S. Ct. 2260, 65 L. Ed. 2d 228 (1980). Though the appellate division, in considering Hakeem's direct appeal, held that possession of a weapon is a separate offense from assault, it did not decide whether the legislature intended possession of a weapon to be an offense separate from armed first degree robbery. On this point, other cases decided by the Appellate Division leave New Jersey law unclear. See State v. Jones, 213 N.J.Super. 562, 517 A.2d 1219 (App.Div.1986) (holding two sentences permissible). But see State v. Porter, 210 N.J.Super. 383, 510 A.2d 49 (App.Div.) (conviction for weapon possession merged with first degree armed robbery conviction), cert. denied, 105 N.J. 556, 523 A.2d 191 (1986).\n \n \n 25\n The state court's rejection, without discussion, of Hakeem's double jeopardy attacks on his dual convictions for robbery and possession does not by itself conclusively establish a legislative intent that would avoid Blockburger. If it did, Blockburger analysis would seldom be necessary on federal habeas because state affirmance of a dual conviction could bring our double jeopardy inquiry to an end. Nevertheless, in Hakeem's case, we are satisfied that his dual convictions survive Blockburger analysis because the two crimes have different elements. See Vitale, 447 U.S. at 416, 100 S.Ct. at 2265 (\"[I]f 'each statute requires proof of an additional fact which the other does not,' the offenses are not the same under the Blockburger test.\") (quoting Brown v. Ohio, 432 U.S. 161, 166, 97 S. Ct. 2221, 2225, 53 L. Ed. 2d 187 (1977) (emphasis omitted)). New Jersey's possession statute requires proof that a defendant intended to use the weapon unlawfully.4 Its first degree robbery statute requires mere possession of a weapon at the time the offense is committed without any proof that the actor intended to use or exhibit it.5 Consequently, Hakeem was not sentenced in violation of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, which has now been incorporated into the due process clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 2062, 23 L. Ed. 2d 707 (1969).\n \n IV.\n \n 26\n Among the other issues the parties present to us, only the Sixth Amendment speedy trial issue requires further discussion. The Sixth Amendment states in part, \"[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy ... trial....\" U.S. Const. amend VI. This provision is binding on the states through the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 223, 87 S. Ct. 988, 993, 18 L. Ed. 2d 1 (1967).\n \n \n 27\n The United States Supreme Court has adopted a flexible balancing test to adjudicate alleged violations of the Sixth Amendment Speedy Trial Clause. See Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). The factors to be considered are: \"[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.\" Id. at 530, 92 S.Ct. at 2192. All factors must be considered and weighed as no one factor is dispositive nor \"talismanic.\" Id. at 533, 92 S.Ct. at 2193.\n \n A.\n \n 28\n The first factor, the length of delay, actually entails two inquiries.\n \n \n 29\n Simply to trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from \"presumptively prejudicial\" delay, since, by definition, he cannot complain that the government has denied him a \"speedy\" trial if it has, in fact, prosecuted his case with customary promptness. If the accused makes this showing, the court must then consider, as one factor among several, the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim. This latter enquiry is significant to the speedy trial analysis because ... the presumption that pretrial delay has prejudiced the accused intensifies over time.\n \n \n 30\n Doggett v. United States, --- U.S. ----, ---- - ----, 112 S. Ct. 2686, 2690-91, 120 L. Ed. 2d 520 (1992) (citations omitted). \"Presumptive prejudice,\" when used in this threshold context simply \"marks the point at which courts deem the delay unreasonable enough to trigger the Barker enquiry.\" Id., --- U.S. at ---- n. 1, 112 S. Ct. at 2961 n. 1. Such \"presumptive prejudice\" cannot alone create a Sixth Amendment violation but \"it is part of the mix of relevant facts, and its importance increases with the length of delay.\" Id., at ----, 112 S.Ct. at 2693.\n \n \n 31\n Thus, the delay involved first figures into the speedy trial equation for the purpose of determining whether it is long enough to trigger inquiry into the other Barker factors. See Barker, 407 U.S. at 530, 92 S. Ct. at 2192 (\"Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.\"). If the delay is long enough to trigger inquiry, as it continues to lengthen it imperceptibly grows in a second aspect, incrementally adding its weight to any actual harm that the record shows the defendant suffered as a result of the delay in question.\n \n \n 32\n In both aspects, at a minimum, the delay is measured from the date of formal accusation, i.e., from the earliest date of arrest or indictment until the commencement of trial. See United States v. MacDonald, 456 U.S. 1, 6-7, 102 S. Ct. 1497, 1501, 71 L. Ed. 2d 696 (1982).6 The police arrested Hakeem on November 3, 1983, and the trial commenced on January 16, 1985, a fourteen and one-half month delay. We have held that a \"delay of 14 months is ... not dispositive in and of itself, but is sufficiently lengthy to warrant an inquiry into the other facts.\" United States ex rel. Stukes v. Shovlin, 464 F.2d 1211, 1214 (3d Cir.1972); accord Wells v. Petsock, 941 F.2d 253, 258 (3d Cir.1991) (seven month pretrial incarceration triggers plenary inquiry into remaining Barker factors), cert. denied, --- U.S. ----, 112 S. Ct. 3038, 120 L. Ed. 2d 906 (1992). Therefore, though rigid time limitations have been rejected in analyzing the constitutional right to a speedy trial, see Wells, 941 F.2d at 257-58, we agree with the district court that a fourteen and one-half month detention before trial merits further inquiry. See also United States v. Koller, 956 F.2d 1408, 1414 (7th Cir.1992) (eight and one-half month delay triggers inquiry); United States v. Henson, 945 F.2d 430, 437 (1st Cir.1991) (court assumed nine and one-half month delay raised presumption of prejudice triggering inquiry).\n \n \n 33\n Accordingly, the Barker factors must be balanced to determine whether a Sixth Amendment violation has occurred. The most important factor is prejudice. See Wells, 941 F.2d at 258. We will, therefore, turn first to a consideration of that factor.\n \n B.\n \n 34\n Various types of prejudice can result from a pretrial delay: oppressive pretrial incarceration, the accused's anxiety and concern over the outcome of the litigation or impairment of the defense, including general concern over the delay's effect on the reliability of the truth finding process. Id. (citing Barker, 407 U.S. at 532, 92 S. Ct. at 2193). Cognizable injury may exist in any one of these areas. See Moore v. Arizona, 414 U.S. 25, 26-27, 94 S. Ct. 188, 190, 38 L. Ed. 2d 183 (1973). To determine whether Hakeem suffered any prejudice in these respects, we think it is appropriate to analyze the direct impact this fourteen and one-half month delay had on Hakeem separately from its impact on the reliability of his convictions. With respect to all its various types, the burden of showing prejudice lies with the individual claiming the violation and \"[the] possibility of prejudice is not sufficient to support [the] position that ... speedy trial rights [are being] violated.\" United States v. Loud Hawk, 474 U.S. 302, 315, 106 S. Ct. 648, 656, 88 L. Ed. 2d 640 (1986).\n \n 1.\n \n 35\n Because the district court found it dispositive, we first consider the prejudice that flows from oppressive pretrial incarceration. In Wells, we decided that seven months of pretrial incarceration were insufficient to create an oppressive situation absent substandard conditions. Wells, 941 F.2d at 257-58. In the instant case, the district court found that \"[Hakeem] ha[d] not demonstrated extraordinary or substandard conditions of confinement,\" but nonetheless concluded that \"the length of his incarceration obviates the necessity of such proof.\" Hakeem, 774 F. Supp. at 296.\n \n \n 36\n The district court, in reaching that conclusion, emphasized the harm that attends pretrial incarceration. It relied upon what it called a \"flexible analysis,\" stating that unjustified delay must be limited in time if prejudice is to be avoided. It set a brightline time limit holding that \"[t]hirteen months of pretrial confinement without any justification warrants a finding of [prejudice of constitutional dimensions].\" Id.\n \n \n 37\n We disagree. We do not think pretrial incarceration of either thirteen or fourteen and one-half months demonstrates per se oppressive pretrial delay.7 We stated in Wells:\n \n \n 38\n [T]he seriousness of a deprivation of liberty due to pretrial incarceration will vary with the conditions of the defendant's confinement. Indeed, the [Supreme] Court held that the speedy trial guarantee was intended to prevent \"oppressive pretrial incarceration.\" Barker, 407 U.S. at 532 [92 S.Ct. at 2193] (emphasis added). All pretrial detention is not equally oppressive or precisely definable. Courts in the past have tolerated the deprivation of an accused's liberty prior to trial for periods longer than seven months under conditions of incarceration prevailing in those cases. However, were the oppressiveness of such conditions to worsen or the treatment of the accused to fall below established, standard levels, so as to place the physical or mental integrity of the accused in jeopardy for example, the length of pretrial delay which a just system in a civilized society could tolerate would have to be reconsidered.\n \n \n 39\n Wells, 941 F.2d at 257 (footnote omitted). Prior decisions of this Court have given some weight to the absence of pretrial incarceration in finding insufficient prejudice. See Government of V.I. v. Pemberton, 813 F.2d 626, 629-30 (3d Cir.1987); Government of V.I. v. Burmingham, 788 F.2d 933, 937 (3d Cir.1986). The Supreme Court has also expressed concern about the potential harm that may be visited upon a pretrial detainee. See Barker, 407 U.S. at 532-33, 92 S.Ct. at 2192-93. We do not believe it follows, however, that pretrial detention, coupled with a fourteen and one-half month delay, permits an automatic inference of enough prejudice to balance that factor in a petitioner's favor without proof of sub-standard conditions or other oppressive factors beyond those that necessarily attend imprisonment. Cf. Wells, 941 F.2d at 257-58.\n \n \n 40\n Hakeem cites Redd v. Sowders, 809 F.2d 1266 (6th Cir.1987), in support of the district court's analysis of the prejudicial weight of overly long pre-trial imprisonment. Discussing the effect of pretrial incarceration, the court stated in Redd that \"[t]he time spent in jail awaiting trial is said to destroy human character.\" Id. at 1272 n. 5. \"[Pretrial delay] often means loss of job; it disrupts family life; and it enforces idleness.... The time spent in jail is simply dead time.\" Id. (quoting Barker, 407 U.S. at 532-33, 92 S.Ct. at 2193). In Redd, the Court of Appeals for the Sixth Circuit held that a ten month delay was prejudicial after noting that the defendant had suffered additional prejudice when the delay contributed to his inability to locate alibi witnesses. Id. at 1272. In the instant case, the district court found the delay in bringing Hakeem to trial did not prejudice the defense. Hakeem, 774 F. Supp. at 294. On the record before us, we do not think that finding is erroneous.8 Accordingly, Redd is distinguishable and we find it otherwise unpersuasive on the question whether Hakeem suffered oppressive pre-trial incarceration. See, e.g., Barker, 407 U.S. at 534, 92 S.Ct. at 2194 (recognizing Barker lived under \"cloud of suspicion and anxiety\" for four years although holding ten month pretrial incarceration not prejudicial absent showing of further prejudice such as loss of witnesses).\n \n \n 41\n Moreover, Hakeem has not shown that loss of employment, disruption of family life or excessive mental anguish resulted from his pre-trial imprisonment. The district court's adoption of either a thirteen or fourteen and one-half month brightline rule to establish oppressive pre-trial incarceration would change the manner in which this Court has heretofore balanced the Barker factors. See Burkett, 951 F.2d at 1439, 1443-45 (requiring defendant to demonstrate prejudice after ten months of pretrial incarceration and additional twenty-nine months of incarceration awaiting sentencing); Wells, 941 F.2d at 257 (looking to substandard conditions of confinement for prejudice after seven month pretrial incarceration). If we were to follow the district court's articulation of the standard, it would be difficult to avoid a holding of prejudicial delay in any case in which the defendant suffered pre-trial incarceration and the delay was long enough to trigger inquiry.\n \n \n 42\n At its core, the Sixth Amendment's guarantee of a speedy trial shields the individual from deprivations of personal liberty. See Loud Hawk, 474 U.S. at 312, 106 S.Ct. at 654-55. Thus, though time alone may, in some cases, rise to the level of \"oppressive pretrial incarceration,\" credit for time served \"mitigate[s] the potential oppressive effects of ... incarceration.\" Gray v. King, 724 F.2d 1199, 1204 (5th Cir.), cert. denied, 469 U.S. 980, 105 S. Ct. 381, 83 L. Ed. 2d 316 (1984). Hakeem did receive credit for all the pretrial time he served. Credit for time served cannot cure every unexcused delay but where the defendant has not pointed to any evidence of additional, specific prejudice flowing from the delay, we are unwilling to infer prejudice based on incarceration that the defendant would ultimately have had to serve solely because fourteen and one-half months had elapsed between arrest and trial.\n \n 2.\n \n 43\n Similarly, Hakeem cannot prevail merely by claiming that fourteen and one-half months of anxiety over the outcome of the trial has prejudiced him to the extent necessary to prevail on a Sixth Amendment claim. Vague allegations of anxiety are insufficient to state a cognizable claim. In United States v. Dreyer, 533 F.2d 112 (3d Cir.1976), we held that a defendant must show that his anxiety extended beyond that which \"is inevitable in a criminal case.\" Id. at 116. In order to reach that level, the petitioner must produce evidence of psychic injury. See id. at 115-16. Hakeem has not done so.\n \n \n 44\n Our decision in Burkett v. Fulcomer is not to the contrary. Burkett stands for the proposition that a habeas petitioner asserting a violation of his constitutional right to a speedy trial must show some objective manifestation of distress if he proposes to establish prejudice as a result of pretrial incarceration. In Burkett, we weighed the petitioner's unrebutted testimony that he suffered from loss of sleep, loss of appetite and interference with personal relationships that were severe enough to have resulted in physical manifestations of emotional distress. Burkett, 951 F.2d at 1443-44. We concluded Burkett's \"imprisonment angst rises above the level of anxiety indigenous to any term of incarceration....\" Id. at 1444. Although we hesitated to conclude that this evidence of anxiety in and of itself would support relief under Barker, we did hold that it tipped the scale slightly in the petitioner's favor; Burkett, however, involved a substantially longer period of pretrial incarceration, ten months before trial and twenty-nine months between guilty verdict and sentencing. Id. Hakeem has failed to allege or point out in the state court record any evidence of specific harm. Accordingly, that record does not show anxiety sufficient to establish actual prejudice.3.\n \n \n 45\n In order to establish that his defense was prejudiced by the delay, Hakeem alleges specific impairment of his defense in two respects--the belated questioning of the sanitation department secretaries and the death of his father.\n \n \n 46\n Hakeem claims that a prompt trial would have permitted him to call the secretaries to corroborate his alibi defense that he was elsewhere at the time of the robbery.9 The district court correctly rejected this argument. General allegations that witnesses' memories have faded are insufficient to create prejudice, at least absent extreme delay such as eight and one-half years, or the special circumstances that existed in Doggett. See Koller, 956 F.2d at 1414.10 Hakeem has not pointed to any evidence in the state record that shows the secretaries would have been able to corroborate his presence at the sanitation department when the crime with which he was charged was being committed.\n \n \n 47\n Hakeem also asserts that the death of his father, whom he characterizes as another alibi witness, before the case went to trial prejudiced his defense. In Barker the Supreme Court noted \"[i]f witnesses die or disappear during a delay, the prejudice is obvious.\" Barker, 407 U.S. at 532, 92 S.Ct. at 2193. We cannot infer prejudice, however, from this sad event. Hakeem's father died four months after Hakeem's arrest, before the delay had progressed to the point at which any speedy trial inquiry would have been triggered. There is thus no causal connection between the delay in bringing Hakeem to trial and the loss of his father's corroborating testimony.\n \n 4.\n \n 48\n On the factor of prejudice, we must also consider the effect of the United States Supreme Court's intervening decision in Doggett where the Supreme Court considered the effect of an eight and one-half year delay between indictment and trial. Doggett requires us to examine the possibility of inferring prejudice from extended delays in and of themselves.\n \n \n 49\n In Doggett, in deciding whether time alone can constitute prejudicial impairment of the defense, the Supreme Court stated:\n \n \n 50\n [C]onsideration of prejudice is not limited to the specifically demonstrable, and, ... affirmative proof of particularized prejudice is not essential to every speedy trial claim. Barker explicitly recognized that impairment of one's defense is the most difficult form of speedy trial prejudice to prove because time's erosion of exculpatory evidence and testimony can rarely be shown.\" And though time can tilt the case against either side, one cannot generally be sure which of them it has prejudiced more severely. Thus, we generally have to recognize that excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify. While such presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria, it is part of the mix of relevant facts, and its importance increases with the length of delay.\n \n \n 51\n Doggett, --- U.S. at ---- - ----, 112 S. Ct. at 2692-93 (citations and quotation omitted).\n \n \n 52\n In Doggett, the United States Supreme Court drew its inference of prejudice from a delay of eight and one-half years in bringing the case to trial. On this record, we think that the fourteen and one-half months that passed between arrest and trial is insufficient to allow an inference of prejudice solely from the length of the delay. Its magnitude is too small to itself increase the factor of prejudice to a quantity that will perceptively weigh the balance we must make in Hakeem's favor. Doggett is otherwise distinguishable from Hakeem's case. There, the defendant appears to have been unaware of the charges pending and so had no reason to prepare a defense. Doggett, at ---- - ----, 112 S. Ct. at 2691-92. Hakeem knew from the day of the robbery that it would be necessary to preserve his alibi. The Supreme Court in Doggett was also concerned with the general problem of accurately and fairly determining the truth about events that occurred eight and one-half years before trial. Id., at ---- - ----, 112 S. Ct. at 2692-93. We do not believe a fourteen and one-half month delay is in the same category as the eight and one-half year delay held prejudicial in Doggett.\n \n \n 53\n Thus, agreeing with the district court's determination that the state record fails to establish any specific impairment of the defense, we believe that it erred in inferring or presuming prejudice from Hakeem's pre-trial incarceration and in concluding that the fourteen and one-half month period between arrest and trial prejudiced him absent other specific evidence of the delay's effect on Hakeem's ability to mount his defense. On the record before us, Hakeem cannot prevail on this most important element of the Barker test and, in the final analysis, its absence weighs against his claim.\n \n C.\n \n 54\n We turn next to the question whether Hakeem asserted his speedy trial right in a timely and proper manner. Although delay in asserting the constitutional right to a speedy trial does not constitute a waiver, Barker, 407 U.S. at 528, 92 S.Ct. at 2191, \"failure to assert the right will make it difficult for [petitioner] to prove that he was denied a speedy trial.\" Id. at 532, 92 S. Ct. at 2193. We have stated that a habeas petitioner must show he made a \"reasonable assertion of [the] speedy trial right.\" Pemberton, 813 F.2d at 629. Repeated assertions of the right do not, however, balance this factor in favor of a petitioner when other actions indicate that he is unwilling or unready to go to trial. United States v. Loud Hawk, 474 U.S. 302, 313-15, 106 S. Ct. 648, 655-56, 88 L. Ed. 2d 640 (1986). Accordingly, other courts have emphasized the need for a petitioner to show he \"vigorously pursued a speedy trial\" if the factor of its assertion is to be weighed in the petitioner's favor. Koller, 956 F.2d at 1414.\n \n \n 55\n Hakeem did make several assertions of his speedy trial right. On May 5, 1984, in pro se correspondence with the state trial court, he claimed that his case should be dismissed because of \"unnecessary delay.\" Hakeem also claims to have asserted the right again in an October 16, 1984 pro se motion to the trial court, but neither the prosecutor, the state trial court nor its clerk of court received this motion. Finally, on December 11, 1984, only one month before trial, Hakeem filed a petition in the United States District Court alleging, inter alia, violation of his Sixth Amendment right to a speedy trial. That petition was denied for a failure to exhaust remedies.\n \n \n 56\n Reasoning that a pro se petitioner need not make a procedurally perfect assertion of the right, the district court weighed this factor \"heavily in [Hakeem's] favor.\" Hakeem, 774 F. Supp. at 294. The district court concluded that Hakeem's letters to the state trial court put it on notice of Hakeem's complaint and satisfied the Barker factor of assertion of the right. It read our decision in Pemberton as requiring a habeas petitioner merely to make an assertion that puts the trial court on notice that a violation may be occurring. Once such notice is given, the district court concluded the state had to bring the petitioner to trial or show a valid reason for delay.\n \n \n 57\n In reaching its conclusion that the factor of assertion weighed \"heavily\" in Hakeem's favor, the district court characterized Hakeem as a pro se litigant. In this respect it erred. From March 8, 1984, the day after the arraignment, until January 7, 1985, Patricia Arons (Arons) of the Office of the Public Defender was Hakeem's counsel of record. During the summer of 1984, Hakeem corresponded with Arons about his case a number of times. In addition, the correspondence Hakeem sent to the trial court was forwarded to Arons. We recognize that Hakeem has alleged her representation was constitutionally defective but the district court, after dealing at some length with that contention, decided she was not constitutionally ineffective. See Hakeem, 774 F. Supp. at 287-90. We agree. See supra note 10. Generally speaking, we will not equate disagreements between a defendant and appointed counsel with pro se status. According a counseled litigant equal status with his counsel is not wholly appreciative of the difficulties that a trial court faces in case management when a criminal litigant attempts to act independently of his counsel.\n \n \n 58\n In Schandelmeier v. Cunningham, 819 F.2d 52 (3d Cir.1986), cert. denied, 480 U.S. 938, 107 S. Ct. 1584, 94 L. Ed. 2d 774 (1987), we considered a question somewhat related to the issues posed by the Barker factor of assertion of the right. There, we had before us the question of whether letters to a trial court constituted an assertion of the right to a speedy trial sufficient to exhaust state remedies in Pennsylvania. We held that the letters, unacknowledged by the state, did not suffice. Id. at 54. While Schandelmeier dealt with the different issue of exhaustion, we believe, if a defendant is to tip the Barker scales significantly in his favor on the factor of assertion of the right, that, at least in cases where the accused is represented by counsel, some formal motion should be made to the trial court or some notice given to the prosecution. A demand for trial so given does more than meet the exhaustion requirement of § 2254(b); it notifies the state forum that a violation of constitutional proportions may be ongoing, and it gives the state an opportunity to remedy the situation.\n \n \n 59\n Hakeem's next request for a speedy trial came in December of 1984, approximately one month before trial, in the form of a petition for habeas corpus addressed not to the court of New Jersey but to the United States District Court for the District of New Jersey. Where cognizable speedy trial assertions occur shortly before trial, other courts have given minimal weight to such claims. See United States v. Kalady, 941 F.2d 1090, 1095 (10th Cir.1991) (one month before trial); Martin v. Rose, 744 F.2d 1245, 1252 (6th Cir.1984) (five days before trial). This petition by Hakeem was ultimately denied on exhaustion grounds. Its disposition on that ground does not, however, determine its effect. For that purpose, we will assume that a defendant can make a speedy trial assertion that will weigh in his favor without technically exhausting his state remedies.\n \n \n 60\n Nevertheless, we think the weight to be given Hakeem's December petition in the federal court is reduced by his apparent unreadiness to proceed to trial at any of the times he asserted the right. Where, through contrary actions, a defendant evidences an unwillingness to commence with the trial requested, the request carries minimal weight. Kalady, 941 F.2d at 1095 (quoting United States v. Tranakos, 911 F.2d 1422, 1429 (10th Cir.1990)); see also Loud Hawk, 474 U.S. at 314-15, 106 S.Ct. at 655-56. In a letter dated June 18, 1984, Hakeem informed the Office of the Public Defender that he would not proceed to trial with Arons as counsel; yet it was not until January 7, 1985, a week before trial, that she was replaced as counsel of record. As late as one week before the trial, Hakeem was still interviewing key alibi witnesses. Hakeem was not fully prepared to defend himself until a few days before his trial actually commenced. When an incarcerated individual demands a trial, he should be prepared for that trial. Evidence to the contrary weighs against a speedy trial violation. Cf. Barker, 407 U.S. at 535, 92 S.Ct. at 2194; Tranakos, 911 F.2d at 1429.\n \n \n 61\n While a represented defendant's informal correspondence with a state trial judge may constitute a \"reasonable assertion\" of the right, we do not believe it weighs heavily in favor of a habeas petitioner claiming violation of the right to a speedy trial absent a motion or some evidence of direct instruction to counsel to assert the right at a time when formal assertion would have some chance of success. See Pemberton, 813 F.2d at 629. Accordingly, while Hakeem's letters to the trial court coupled with his unrecorded motion may have been sufficient to qualify as an assertion of his right that weighs in his favor under the Barker test, we do not think it weighs heavily in his favor. We have to add that our unwillingness to weigh Hakeem's assertions of his right \"heavily\" in his favor does not doom his speedy trial claim to failure. It merely requires him to make a stronger showing on the other Barker factors he advances to support his claim. See Barker, 407 U.S. at 523-28, 92 S.Ct. at 2188-91 (rejecting notion that assertion of speedy trial right is necessary condition for finding violation).\n \n \n 62\n We hold, therefore, that Hakeem's assertions of his speedy trial rights in his May correspondence to the trial court, in the October motion that was never filed or served, and in the December habeas petition, although evidence of an assertion of the right, are reduced in weight by their proximity to trial, the ultimate rejection of his ineffectiveness claim and his possible unreadiness for trial at the time he asserted his speedy trial right. Therefore, though we weigh the Barker factor of assertion of the right in Hakeem's favor, we disagree with the district court's conclusion that it weighs heavily in his favor.\n \n D.\n \n 63\n Finally, we come to the Barker factor of the reason for the delay. See Barker, 407 U.S. at 530, 92 S. Ct. at 2192. The reasons behind any prolonged delay in bringing a criminal defendant to trial are significant factors in the analysis of a defendant's constitutional right to a speedy trial. \"[D]eliberate attempt[s] to delay the trial in order to hamper the defense should be weighted heavily against the government.\" Id. at 531, 92 S.Ct. at 2192 (footnote omitted). \" '[N]eutral reason[s]' such as negligence ... [will] be weighed ... against the government,\" but less heavily absent \"any showing of bad faith or dilatory purpose by the prosecution.\" Pemberton, 813 F.2d at 628 (citation omitted) (considering failure to list the action on the criminal docket as reason for delay). Conversely, however, delays attributable to the dilatory actions of the defendant cut against a finding of a Sixth Amendment violation. Wells, 941 F.2d at 258; United States v. Wangrow, 924 F.2d 1434, 1436-37 (8th Cir.1991).\n \n \n 64\n Hakeem alleges that the state delayed prosecution in order to bring a co-defendant to trial at the same time or, in the alternative, that the state's negligence led to the extended period of pretrial incarceration. The state directly disputes this assertion and contends Hakeem fostered the delay through pretrial activities. The state appellate court that considered this question found that the delay accrued due to the \"need for investigation and trial preparation.\" In context, we think this finding implies that the state court also determined the delay was attributable to Hakeem. The district court decided that this finding was unsupported by the record and that the delay was attributable to the state's negligence. In so doing, it recognized that in a habeas proceeding the factual findings of state courts are presumptively correct but concluded, without extensive analysis, that the presumption did not apply to Hakeem's case because the state appellate court did not afford him an evidential hearing and the evidence in the state record it had before it was insufficient to support the state court's finding that the delay was not attributable to the state. See 28 U.S.C.A. § 2254(d).11\n \n \n 65\n In reviewing Hakeem's speedy trial argument, the Appellate Division of the Superior Court of New Jersey found that the delay occurred because of the need for \"investigation and trial preparation.\" State v. Wooten, No. A-3657-84T4, slip op. at 11. The state court's appellate division had to make that determination after a review of the cold record because Hakeem had not properly raised the speedy trial issue either at trial on direct appeal or before the trial division in his application for post conviction relief. Nevertheless, the district court concluded \"there was no valid finding of fact\" because no evidentiary hearing had been held on Hakeem's claim. Hakeem, 774 F. Supp. at 290 (emphasis in original). It cited Townsend and stated that the state appellate division's finding was not entitled to any deference because the merits of the factual dispute were not resolved after a hearing and the state court's determination was not fairly supported by the record. Id.; see 28 U.S.C.A. § 2254(d)(1) & (8). When the state then failed to produce any new evidence in the federal habeas proceeding, the district court subjected the record before the state appellate division to plenary review for sufficiency, Hakeem, 774 F. Supp. at 291, and determined that the state had failed to meet its burden of establishing the reason for the delay. Id. (citing Barker, 407 U.S. at 527, 92 S. Ct. at 2190). We think the district court's ultimate conclusion that deference is not required in this case was correct but that it erred in its reasoning concerning the application of § 2254(d) to the state appellate court's finding in this case.\n \n \n 66\n Findings on the cause of the delay are entitled to a § 2254(d) presumption of correctness if petitioner had a fair opportunity to present his version of events and the state's findings on the issue are fairly supported by the record. Cf. Glidewell v. Burden, 822 F.2d 1027, 1028-29 (11th Cir.1987) (per curiam) (presumption of correctness attaches to subsidiary findings in speedy trial calculation but not to ultimate conclusion on whether constitutional violation occurred), cert. denied, 484 U.S. 1018, 108 S. Ct. 727, 98 L. Ed. 2d 676 (1988); Ahmad v. Redman, 782 F.2d 409, 412-13 (3d Cir.) (determination of historical facts necessary to determine whether constitutional violation occurred subject to presumption of § 2254(d)), cert. denied, 479 U.S. 831, 107 S. Ct. 119, 93 L. Ed. 2d 66 (1986).\n \n \n 67\n We have held that a district court may not apply § 2254(d) unless it is evident that the petitioner received: (1) a hearing on the merits of a factual issue, (2) made by a state court of competent jurisdiction, (3) in a proceeding to which the petitioner and the state were parties and (4) the state court's resolution of the factual dispute is evidenced by a written finding, opinion or other reliable and adequate written indicia. Reese v. Fulcomer, 946 F.2d 247, 254 (3d Cir.1991) (citing 28 U.S.C.A. § 2254(d); Townsend, 372 U.S. at 313, 83 S.Ct. at 757), cert. denied, --- U.S. ----, 112 S. Ct. 1679, 118 L. Ed. 2d 396 (1992). There is, however, no necessity that the hearing take place at the trial level.\n \n \n 68\n In Sumner v. Mata, 449 U.S. 539, 101 S. Ct. 764, 66 L. Ed. 2d 722 (1981), the United States Supreme Court stated,\n \n \n 69\n Section 2254(d) applies to cases in which a state court of competent jurisdiction has made \"a determination after a hearing on the merits of a factual issue.\" It makes no distinction between the factual determinations of a state trial court and those of a state appellate court. Nor does it specify any procedural requirements that must be satisfied for there to be a \"hearing on the merits of a factual issue,\" other than that the habeas applicant and the State or its agent be parties to the state proceeding and that the state-court determination be evidenced by \"a written finding, written opinion or other reliable and adequate written indicia.\" Section 2254(d) by its terms thus applies to factual determinations made by state courts, whether the court be a trial court or an appellate court. This interest in federalism recognized by Congress in enacting § 2254(d) requires deference by federal courts to factual determinations of all state courts. This is true particularly in a case such as this where a federal court makes its determination based on the identical record that was considered by the state appellate court and where there was no reason for the state trial court to consider the issue because respondent failed to raise the issue at that level.\n \n \n 70\n Id. at 546-47, 101 S.Ct. at 769 (citation omitted).\n \n \n 71\n We think Sumner directly controls the applicability of § 2254(d) to this case, insofar as its procedural requirements are concerned. Hakeem failed to raise his speedy trial claim in the criminal action before the trial division or before the state court that considered his post-conviction relief motion. The appellate division, therefore, was in the same position as the state appellate court in Sumner. It had to make a factual determination from the record before it and that task was thrust on it by Hakeem's failure to take the several opportunities he had to present his claim in a state forum in which a full evidentiary hearing could be had by properly asserting it. As in Sumner, both parties were before the state appellate court where they were able to present argument and point to evidence in the record to support their claims. Sumner specifically rejects the notion that the § 2254(d) presumption only applies after a trial like evidentiary hearing. It also rejects the argument that a district court owes no deference to a state appellate court that has reviewed the same record that the district court has before it. Hakeem did receive the \"hearing\" in a state court on the merits of his speedy trial claim that § 2254(d) requires. As in Sumner, both the state and the petitioner were present and the state court's finding on the cause of delay was evidenced by a written finding. See Reese, 946 F.2d at 254. The district court erred when it held that the absence of an evidential hearing in the appellate court made § 2254(d) inapplicable.\n \n \n 72\n Alternately, the district court concluded that the § 2254(d) presumption in favor of state factfinding was inapplicable to the appellate division's finding that the state did not cause the delay because the record, taken as a whole, does not \"fairly support\" the state court's finding. See 28 U.S.C.A. § 2254(d)(8). We agree with this conclusion.\n \n \n 73\n The Supreme Court has instructed us as follows with respect to § 2254(d) and exception (8). \"This deference requires that a federal habeas court more than simply disagree with the state court before rejecting its factual determinations.\" Marshall v. Lonberger, 459 U.S. 422, 432, 103 S. Ct. 843, 850, 74 L. Ed. 2d 646 (1983). This Court has also stated that § 2254 \"reflect[s] a clear congressional policy favoring deference to state findings of fact absent good cause for rejecting such findings.\" Nelson v. Fulcomer, 911 F.2d 928, 932 (3d Cir.1990). The statute speaks in terms of the state court's finding being \"fairly supported\" by the record. We have ourselves used that term upon a number of occasions. See, e.g., Nelson, 911 F.2d at 932; Ahmad, 782 F.2d at 412. Other courts have drawn an analogy to the \"clearly erroneous\" test we use in reviewing a district court's findings of fact. See O'Bryan v. Estelle, 714 F.2d 365, 402 n. 9 (5th Cir.1983) (Buchmeyer, D.J., dissenting), cert. denied, 465 U.S. 1013, 104 S. Ct. 1015, 79 L. Ed. 2d 245 (1984); Wright v. North Carolina, 483 F.2d 405, 408 (4th Cir.1973), cert. denied, 415 U.S. 936, 94 S. Ct. 1452, 39 L. Ed. 2d 494 (1974).\n \n \n 74\n Here, in rejecting the findings of the state appellate court, the district court appears to have relied on subsections (1) and (8) without further analysis. See Hakeem, 774 F. Supp. at 290-91.\n \n \n 75\n Hakeem himself relies on subsection (8) and contends that the evidence on the record failed to support the state court's conclusion that the delay in bringing Hakeem to trial resulted from \"investigation and trial preparation.\" We agree and hold the record did not fairly support that finding.\n \n \n 76\n The police arrested Hakeem on November 3, 1983. He received appointed counsel on December 28, 1983. Three months later, on March 7, 1984, he entered a plea of not guilty. At that hearing, his appointed counsel failed to appear. The next day, a second public defender, Patricia Arons, advised Hakeem that she had taken over his representation. On April 5, 1984, Hakeem bypassed counsel by writing directly to the trial court about bail and asking for discovery. The trial court acknowledged the letter and forwarded it to Hakeem's counsel at that time, Arons. On May 5, 1984, Hakeem again wrote directly to the trial court complaining about the length of his imprisonment and the delay in receiving discovery. The trial court also forwarded that letter to Arons. She wrote to Hakeem on May 26, 1984 and requested that he contact her to discuss a plea offer. Some time in June, Hakeem prepared a motion for bail reduction independently of Arons, who was still acting as his counsel. The record does not show that anyone ever actually received this motion.\n \n \n 77\n On June 18, 1984, Hakeem wrote to the Office of the Public Defender complaining about Arons. He asserted that she did not have his best interests at heart, that she only sought a plea agreement and that she had failed to file a number of motions he had sent her. He also stated he wanted a change of counsel before trial. On June 25, 1984, the Office of the Public Defender responded in writing. In that letter, the First Assistant Deputy Public Defender advised Hakeem that Arons was capable and suggested that he consider her advice. The defender stated, however, that Hakeem himself had to decide whether to plead or go to trial and, if he should choose the latter, he would be vigorously represented.\n \n \n 78\n On June 29, 1984, Hakeem wrote again to the public defender. He claimed that Arons was not using her best efforts to serve him and that he was \"firing\" her. On June 30, Arons wrote to Hakeem informing him that his trial had not been scheduled because the state wished to try him after his co-defendant who had given a statement to the police. On July 5, Hakeem wrote to Arons complaining that his trial should not have to wait for the other defendants and that he was quite displeased with her representation. On July 11, the public defender wrote to Hakeem informing him that the case would not be reassigned to another attorney and that he could not represent himself without court approval.\n \n \n 79\n On July 14, Ms. Arons filed a severance motion. The court denied it on July 27. Arons informed Hakeem of the result by letter dated July 28. On August 25, Arons forwarded Hakeem copies of the indictments and advised him that he now had a record of all the discovery that had taken place up to that time. On October 16, 1984, Hakeem prepared a \"motion for a speedy trial.\" It sought dismissal of the charges against him under the New Jersey Speedy Trial Act and the Sixth Amendment. Neither the prosecutor's office nor the court clerk of the state court have a record showing receipt of that motion.\n \n \n 80\n On December 11, 1984, Hakeem filed a habeas petition with the United States District Court for the District of New Jersey alleging ineffective assistance of counsel, denial of a speedy trial, and cruel and unusual punishment. The district court subsequently denied the petition for failure to exhaust remedies.\n \n \n 81\n On January 7, 1985, just nine days before trial, Hakeem changed counsel for the third time. His new attorney indicated that he had spoken with Hakeem six times in prison and was investigating potential alibi witnesses that Hakeem's earlier lawyers had failed to interview.\n \n \n 82\n This evidence is insufficient to fairly support any determination by the state court that the delay was attributable to Hakeem's \"need for investigation and trial preparation.\" The record shows there were significant amounts of time during which the state cannot point to any activity on Hakeem's part that contributed to the delay. For example, the record shows that between December 28, 1983 and March 7, 1984, and between August 25, 1984 and January 7, 1985, Hakeem had no motions before the trial court nor was he engaged in significant pretrial activity. We note that once a delay is alleged and rises to the point where a Barker inquiry has commenced, the state, not the prisoner, bears the burden to justify the delay. See Barker, 407 U.S. at 527, 92 S.Ct. at 2190. Although there is evidence that Hakeem was in part responsible for the delay, no fair construction of the state record permits a finding that he was solely at fault. While § 2254(d) would otherwise apply to this case under Sumner, we hold that any state court determination that could be implied to attribute the delay to Hakeem is not fairly supported by the record and therefore is not entitled to deference because of the exception set forth at § 2254(d)(8). Accord Smith v. Freeman, 892 F.2d 331, 339 n. 14 (3rd Cir.1993). Accordingly, we give the state court finding no presumption of correctness. See 28 U.S.C.A. § 2254(d)(8).\n \n \n 83\n We are left with the district court determination, made without an evidentiary hearing, that the state negligently caused the delay. Where a petitioner has not received a \"full and fair hearing\" in the state court, an evidentiary hearing in the federal habeas court is appropriate. Townsend, 372 U.S. at 313, 83 S.Ct. at 757. Townsend enumerates six instances where the petitioner is deemed not to have had a \"full and fair hearing\" before the state tribunal. See id. (full and fair hearing denied at state level, where: (1) the merits of the factual dispute were not resolved, (2) the factual determination is not fairly supported by the record as a whole; (3) the fact finding procedure was inadequate; (4) new evidence is alleged; (5) there was an inadequate development of material facts; or (6) other reasons would call into question whether the petitioner received a \"full and fair fact hearing\"). These reasons generally relate to the accuracy and propriety of the state court proceeding and Townsend presumes that where the state procedure was faulty, a federal court could not reasonably rely on those facts to derive a conclusion about potential constitutional violations. It is not only where procedural inadequacies exist in the state record that a federal habeas petitioner should be afforded an opportunity to present evidence on his constitutional claim to the district court. Townsend also concludes that a habeas petitioner has been denied a full and fair hearing where the facts do not \"fairly support\" the state court conclusion. This is unlike the other Townsend reasons for granting a federal hearing. It does not rest analytically on the inadequacy of the state proceeding, but on the sufficiency of the evidence, a concept akin to federal appellate review for clear error. Cf. Wright, 483 F.2d at 408.\n \n \n 84\n In this context, we think that Townsend mandates an evidentiary hearing, unlike § 2254(d)(8) which only eliminates a presumption in favor of the state court's findings of fact. Moreover, the federal habeas rules indicate a hearing should be given whenever there are factual disputes. See Habeas Rule 8(a) advisory committee's note. The district court erred in not affording Hakeem a hearing after determining that the record did not fairly support the factual conclusion drawn by the New Jersey Appellate Division that Hakeem caused the delay. In addition, if it is the state's fault, the degree and extent of its culpability is in dispute. Townsend is quite explicit,\n \n \n 85\n Where the facts are in dispute, the federal court in habeas corpus [proceedings] must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding.\n \n \n 86\n Townsend, 372 U.S. at 312, 83 S.Ct. at 757; see also Smith, 892 F.2d at 338. As we have demonstrated above, Hakeem did not receive a full and fair hearing at the state court level because the record did not \"fairly support\" the state appellate court finding on the cause of the delay. Accordingly, we must remand this case to the district court to hold an evidentiary hearing on the reasons for the delay. After that hearing, the district court can resolve the disputed fact as to the reason for the delay, factor it into the Barker equation and do the balancing that Barker requires.\n \n \n 87\n Because the balancing is itself a legal issue subject to plenary review, we think it is appropriate to comment on that issue for the benefit of the district court, which must do that balancing in the first instance. We believe that if, after the hearing, the district court were to find as it did before, that the delay was occasioned by the negligence of the state, the factor of delay would weigh somewhat in Hakeem's favor. See Barker, 407 U.S. at 531, 92 S. Ct. at 2192; Pemberton, 813 F.2d at 628. Given our foregoing discussion of the other Barker factors in this case, however, we do not believe negligence on the part of the state that merely contributed to the delay would necessarily bring the balance down so heavily in Hakeem's favor that it would establish a Sixth Amendment violation. Were the district court to find, based on adequate supporting evidence, that the delay resulted from a \"deliberate attempt [by the government] to delay the trial in order to hamper the defense,\" or perhaps from gross negligence or reckless disregard of Hakeem's constitutional rights, such motivation would weigh heavily in favor of a violation and could tip the scales in favor of granting the writ. See Barker, 407 U.S. at 531, 92 S. Ct. at 2192. This balancing, however, is for the district court to do in the first instance and, indeed, our remand includes that in its purposes.12\n \n \n 88\n To the extent the Barker factors can possibly be balanced on the current record, we believe they weigh as follows. The fourteen and one-half month delay between arrest and trial triggers a Barker inquiry. Hakeem suffered no demonstrable prejudice from the delay and any inference of presumed prejudice that flows from a delay of this length is insufficient to place the prejudice factor on Hakeem's side of the scales on the facts of this case. Hakeem failed to make a completely clear assertion of his speedy trial right until shortly before trial. Nevertheless, he did assert that right and the factor of assertion weighs somewhat in his favor. Finally, because the state appellate court's finding attributing the delay to Hakeem's actions was not \"fairly supported\" by the record and as such, is not presumed to be correct under § 2254(d), and the cause of the delay is in dispute, we are unable to place that factor in the balance. We will therefore remand for an evidentiary hearing on the issue of who caused the delay.\n \n V.\n \n 89\n We will vacate the district court's order granting habeas relief and remand the case to it with instructions to hold an evidentiary hearing to determine the cause of the delay in bringing Hakeem to trial and thereafter for further proceedings in accord with this opinion.\n \n \n \n 1\n During his 1985 state criminal trial, Hakeem was known as Thomas Wooten. He has since changed his name\n \n \n 2\n In addition to double jeopardy and denial of his constitutional right to a speedy trial, Hakeem raises the following issues in support of his contention that the district court erred in failing to grant him habeas on additional grounds: the state trial court unconstitutionally admitted an identification made at the scene of the crime, the state trial court improperly empaneled certain jurors, his sentence exceeds the maximum permitted under New Jersey law, he was denied a fair trial by prosecutorial misconduct in failing to turn over a hearing transcript and his Sixth Amendment right to counsel was denied because of ineffective assistance of counsel\n \n \n 3\n See United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967)\n \n \n 4\n The New Jersey Code of Criminal Justice provides:\n 2C:39-4. Possession of weapons for unlawful purposes\n a. Firearms. Any person who has in his possession any firearm with a purpose to use it unlawfully against the person or property of another is guilty of a crime of the second degree.\n N.J.Stat.Ann. § 2C:39-4 (West Supp.1992) (emphasis added).\n \n \n 5\n The New Jersey Code of Criminal Justice provides:\n 2C:15-1. Robbery\n b. Grading. Robbery is a crime of the second degree, except that it is a crime of the first degree if in the course of committing the theft the actor ... is armed with, or uses or threatens the immediate use of a deadly weapon.\n N.J.Stat.Ann. § 2C:15-1 (West 1982) (emphasis added).\n \n \n 6\n In Burkett v. Cunningham, 826 F.2d 1208, 1220 (3d Cir.1987), we noted the possible relevance of delays that occur between conviction and sentencing. The parties do not mention any delay during this period, material or otherwise\n \n \n 7\n We note the district court seemingly based its analysis, in part, on a delay of thirteen months. Because delays for the purposes of speedy trial issues are calculated from the time of indictment or arrest, the delay in this case was fourteen and one-half months and it is that fourteen and one-half month interval on which we base our analysis\n \n \n 8\n We consider the issue of prejudice to the defense in more detail in Part IV.B.3., infra\n \n \n 9\n Hakeem's argument that the delay impaired his defense is related to his ineffective assistance claim because it was not until fourteen months after arrest that Hakeem's attorney interviewed these alleged alibi witnesses\n \n \n 10\n While the receptionists' inability to corroborate Hakeem's alibi gives some support to his claim of ineffective assistance of counsel, we believe it ultimately fails, essentially for the reasons set forth by the district court. See Hakeem, 774 F. Supp. at 287-90. The district court determined that constitutionally defective representation does not in itself entitle a petitioner to habeas relief; the defective representation must have adversely prejudiced the trial. In this case, Hakeem failed to prove prejudice because the sanitation department witnesses were eventually interviewed and there was no indication that they had been able, at an earlier time, to corroborate Hakeem's version of the events. Thus, Hakeem's assertion of prejudice to the defense in connection with the receptionists' testimony fails. Hakeem also argued that his counsel improperly entered into a stipulation as to the testimony of an absent witness which amounted to ineffective assistance. This decision of counsel, however, involved trial strategy and is entitled to deference\n \n \n 11\n Section 2254(d) provides:\n (d) In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, 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 written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit--\n (1) that the merits of the factual dispute were not resolved in the State court hearing;\n (2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;\n (3) that the material facts were not adequately developed at the State court hearing;\n (4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding;\n (5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;\n (6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or\n (7) That the applicant was otherwise denied due process of law in the State court proceeding;\n (8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record:\n And in an evidentiary hearing in the proceeding in the Federal court, when due proof of such factual determination has been made, unless the existence of one or more of the circumstances respectively set forth in paragraphs numbered (1) to (7), inclusive, is shown by the applicant, otherwise appears, or is admitted by the respondent, or unless the court concludes pursuant to the provisions of paragraph numbered (8) that the record in the State court proceeding, considered as a whole, does not fairly support such factual determination, the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous.\n 28 U.S.C.A. § 2254(d).\n \n \n 12\n Of course if the district court concluded after the hearing that the delay was attributable to the dilatory actions of the defendant, this factor would weigh against Hakeem and could doom his Sixth Amendment claim\n \n \n ", "ocr": false, "opinion_id": 604136 } ]	Third Circuit	Court of Appeals for the Third Circuit	F	USA, Federal
845,281	null	2006-09-26	false	people-v-celley	CELLEY	People v. CELLEY	null	null	null	null	null	null	null	null	null	null	null	null	0	Published	null	null	[ "721 N.W.2d 208" ]	[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 1, "download_url": "http://publicdocs.courts.mi.gov:81/SCT/PUBLIC/ORDERS/20060926_S131420_27_131420_2006-09-26_or.pdf", "author_id": null, "opinion_text": "\n721 N.W.2d 208 (2006)\nPEOPLE of the State of Michigan, Plaintiff-Appellee,\nv.\nTodd Matthew CELLEY, Defendant-Appellant.\nDocket No. 131420. COA No. 268116.\nSupreme Court of Michigan.\nSeptember 26, 2006.\nOn order of the Court, the application for leave to appeal the May 1, 2006 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.\n", "ocr": false, "opinion_id": 845281 } ]	Michigan Supreme Court	Michigan Supreme Court	S	Michigan, MI
326,539	null	1975-03-06	false	childs-v-michigan-department-of-corrections	Childs	Childs v. Michigan Department of Corrections	null	null	null	null	null	null	null	null	null	null	null	null	0	Published	null	null	[ "513 F.2d 630" ]	[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/513/513.F2d.630.74-1428.html", "author_id": null, "opinion_text": "513 F.2d 630\n Childsv.Michigan Department of Corrections\n 74-1428\n UNITED STATES COURT OF APPEALS Sixth Circuit\n 3/6/75\n \n 1\n W.D.Mich.\n \n AFFIRMED\n ", "ocr": false, "opinion_id": 326539 } ]	Sixth Circuit	Court of Appeals for the Sixth Circuit	F	USA, Federal
1,091,412	Per Curiam	2005-12-19	false	dennis-v-state	Dennis	Dennis v. State	null	null	null	null	null	null	null	null	null	null	null	null	2	Published	null	null	[ "917 So. 2d 288" ]	[ { "author_str": null, "per_curiam": true, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n917 So.2d 288 (2005)\nVince DENNIS, Appellant,\nv.\nSTATE of Florida, Appellee.\nNo. 1D05-2941.\nDistrict Court of Appeal of Florida, First District.\nDecember 19, 2005.\nNancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.\nCharlie Crist, Attorney General, Tallahassee, for Appellee.\nPER CURIAM.\nWe affirm the appellant's judgment and sentence but remand for correction of a scrivener's error contained in the written judgment. See Diaz v. State, 910 So.2d 894 (Fla. 1st DCA 2005) (remanding for correction of scrivener's error in the judgment); Bolware v. State, 668 So.2d 200 (Fla. 1st DCA 1995) (same). The judgment erroneously recites that the appellant was convicted of the sale of a controlled substance within 1,000 feet of a school, when the appellant entered a plea to the lesser included offense of possession *289 of cocaine. The judgment must be corrected to reflect the appellant's conviction for possession of cocaine, not the sale of a controlled substance within 1,000 feet of a school.\nAFFIRMED and REMANDED with instructions.\nWEBSTER, BROWNING and POLSTON, JJ. concur.\n", "ocr": false, "opinion_id": 1091412 } ]	District Court of Appeal of Florida	District Court of Appeal of Florida	SA	Florida, FL
607,157	Coffey, Cudahy, Eschbach	1993-05-21	false	charles-j-bafia-v-northern-indiana-public-service-company	null	Charles J. Bafia v. Northern Indiana Public Service Company	Charles J. BAFIA, Plaintiff-Appellee, v. NORTHERN INDIANA PUBLIC SERVICE COMPANY, Defendant-Appellant	Matthew J. Morrissey, Magiera & Morris-sey, Chicago, IL (argued), Ronald Layer, Sachs & Hess, Hammond, IN, for plaintiff-appellee., David C. Jensen, Eichhorn, Eichhorn & Link, Hammond, IN (argued), Jon M. Pin-nick, Eichhorn, Eichhorn & Link, Merrill-ville, IN, for defendant-appellant.	null	null	null	null	null	null	null	Argued Dec. 8, 1992.	null	null	2	Published	null	<parties id="b1420-10"> Charles J. BAFIA, Plaintiff-Appellee, v. NORTHERN INDIANA PUBLIC SERVICE COMPANY, Defendant-Appellant. </parties><br><docketnumber id="b1420-13"> No. 92-1926. </docketnumber><br><court id="b1420-14"> United States Court of Appeals, Seventh Circuit. </court><br><otherdate id="b1420-15"> Argued Dec. 8, 1992. </otherdate><br><decisiondate id="b1420-16"> Decided May 21, 1993. </decisiondate><br><attorneys id="b1421-7"> <span citation-index="1" class="star-pagination" label="1307"> *1307 </span> Matthew J. Morrissey, Magiera <em> & </em> Morris-sey, Chicago, IL (argued), Ronald Layer, Sachs & Hess, Hammond, IN, for plaintiff-appellee. </attorneys><br><attorneys id="b1421-8"> David C. Jensen, Eichhorn, Eichhorn & Link, Hammond, IN (argued), Jon M. Pin-nick, Eichhorn, Eichhorn & Link, Merrill-ville, IN, for defendant-appellant. </attorneys><br><judges id="b1421-9"> Before CUDAHY and. COFFEY, Circuit Judges, and ESCHBACH, Senior Circuit Judge. </judges>	[ "993 F.2d 1306" ]	[ { "author_str": "Cudahy", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/993/993.F2d.1306.92-1926.html", "author_id": null, "opinion_text": "993 F.2d 1306\n Charles J. BAFIA, Plaintiff-Appellee,v.NORTHERN INDIANA PUBLIC SERVICE COMPANY, Defendant-Appellant.\n No. 92-1926.\n United States Court of Appeals,Seventh Circuit.\n Argued Dec. 8, 1992.Decided May 21, 1993.\n \n Matthew J. Morrissey, Magiera & Morrissey, Chicago, IL (argued), Ronald Layer, Sachs & Hess, Hammond, IN, for plaintiff-appellee.\n David C. Jensen, Eichhorn, Eichhorn & Link, Hammond, IN (argued), Jon M. Pinnick, Eichhorn, Eichhorn & Link, Merrillville, IN, for defendant-appellant.\n Before CUDAHY and COFFEY, Circuit Judges, and ESCHBACH, Senior Circuit Judge.\n CUDAHY, Circuit Judge.\n \n \n 1\n The plaintiff, an elevator repairman, sued the defendant utility company for injuries he sustained while servicing an elevator in the defendant's building. After a bench trial, the district court found in favor of the plaintiff and awarded him $475,000. The defendant appeals. We affirm.\n \n I.\n \n 2\n The defendant, Northern Indiana Public Service Company (NIPSCO), an Indiana corporation, operates an electrical power generating station, the R.M. Schahfer Generating Station, in Wheatfield, Indiana. NIPSCO contracts with Otis Elevator Company (Otis) for the maintenance of several elevators in the Wheatfield facility. Otis maintenance workers provide preventive maintenance by regularly inspecting the elevators and lubricating and changing worn mechanical parts. The standard Otis maintenance contract excludes the elevator cab, however, which is not considered a maintenance item because it is not a mechanical device. Otis conducts regular routine preventive maintenance on the NIPSCO elevators and also repairs elevators upon specific request.\n \n \n 3\n On July 7, 1988, a NIPSCO security guard was trapped in the No. 17 boiler house elevator when it unexpectedly stopped between floors. Two NIPSCO master electricians helped rescue the guard by directing him to climb through a hatch door in the ceiling, walk across the top of the elevator car and climb up to the third floor landing. In the course of the rescue, the security guard and one of the NIPSCO employees, John Yurtanas, were on top of the elevator for no more than five minutes.\n \n \n 4\n The next day, Charles Parsons, an Otis service man, was sent to the Wheatfield facility to service the No. 18 boiler house elevator. The plaintiff, Charles Bafia, a resident of Illinois, was assigned as Parsons' helper. Upon checking in, Parsons and Bafia met with Yurtanas, who served as a liaison between NIPSCO and Otis. Yurtanas informed them that the No. 17 elevator was inoperable and asked them to work on it first.\n \n \n 5\n Parsons and Bafia rode the No. 18 elevator to the fourth floor and walked back to the No. 17 elevator, finding the hoistway door, which leads into the elevator shaft, to be open. A key, held by NIPSCO's maintenance department, is required to open the door. Parsons and Bafia then rode the No. 18 elevator to the top floor and crossed over to the No. 17 elevator's machine room. They brought the elevator up to where they had access to the top of it and proceeded to repair the car. Bafia then stepped onto the car top while Parsons entered the car to check its operation. Once the elevator was working properly, Parsons rode it to the ground floor and instructed Bafia to walk across the car top and enter the car through the emergency exit. At that time, Parsons heard a loud bang as the rear panel of the car's ceiling fell to the elevator floor, together with Bafia, who was badly injured.\n \n \n 6\n Bafia and NIPSCO stipulated at trial that Bafia sustained injuries when he stepped on a rear panel of the elevator cab roof and both he and the panel fell through to the floor of the cab. After paramedics took Bafia to a hospital, Parsons observed that the ceiling panel was hinged in two places so it could be lifted upward, allowing NIPSCO to carry long lengths of pipe in the elevator during the construction of the facility. The pins in the hinges were inserted with one end \"peened over\" so they would not vibrate out of position; they thus required a hammer and a tool called a drift pin to be removed. Parsons noticed that one pin was missing from one hinge, but his search for that pin was unsuccessful. The Otis repair man who later reinstalled the ceiling panel in the No. 17 elevator also looked for the missing pin in the elevator car and on top of the elevator but to no avail.\n \n \n 7\n On one side of the hinge, the bolts and screws are flat, but on the other side a hex bolt was used; the hex bolt was shiny, but the flat bolts and screws were darkened and discolored, like the hinge. Parsons opined that the presence of different types of screws or bolts of apparently varying ages meant that someone must have repaired the hinge.\n \n \n 8\n Otis's work is divided among three departments: service, maintenance and construction. The maintenance workers maintain elevators according to contracts prescribing a schedule of maintenance; service calls, on the other hand, are requested in each instance by a customer, charged to the customer and specifically documented in service records. Otis's \"call-back sheets,\" which document customer service requests, do not indicate any service requested or performed on the No. 17 ceiling panels or hinges between 1982 and 1990. Lawrence Verzak, Otis's service superintendent, did not recall ever sending a service crew to NIPSCO to repair the car top of an elevator. Parsons also testified that he had never provided any service or maintenance to the hinge, which is not mechanical and is therefore not considered a maintenance item. Because NIPSCO is obligated to pay for service and repair separately from the maintenance agreement, there would normally be a record of any NIPSCO request that Otis send an employee to repair No. 17's car top.\n \n II.\n \n 9\n Bafia filed this diversity action against NIPSCO on May 30, 1989, in the U.S. District Court for the Northern District of Indiana, contending that NIPSCO was negligent because NIPSCO altered or modified the ceiling panel on the No. 17 elevator, rendering the car top unsafe. In his conclusions of law, the district judge admitted that there was no direct evidence as to how the pin was removed from the hinge, and also rejected Bafia's argument that the doctrine of res ipsa loquitur applied.1 The court nevertheless concluded that NIPSCO was negligent because it knew or reasonably should have known that the pin was missing from one of the hinges on the elevator car top. Based upon NIPSCO's tight security measures, the unlikelihood that the pin would vibrate out of the hinge or that an Otis employee would intentionally remove it and fail to replace it, the lack of a service record for any such maintenance or repair and the evidence that the hinge had been altered, the district court concluded that \"[t]he reasonable, logical inference that NIPSCO, or someone other than an Otis employee who was subject to NIPSCO's direction or control, intentionally removed the pin and negligently failed to replace it may be drawn from the evidence without undue speculation.\" Order at 42. The court accordingly entered judgment against NIPSCO in the amount of $475,000. NIPSCO appeals.\n \n III.\n \n 10\n The sole issue on appeal is whether the findings of fact on which the district court based its determination of liability are clearly erroneous. See Fed.R.Civ.P. 52(a). A trial court finding may be set aside as clearly erroneous when, \"although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.\" United States v. United States Gypsum Co., 333 U.S. 364, 68 S. Ct. 525, 92 L. Ed. 746 (1948); see also Ratliff v. City of Milwaukee, 795 F.2d 612, 617 (7th Cir.1986) (district court's findings clearly erroneous when \"implausible, illogical, internally inconsistent or contradicted by documentary or other extrinsic evidence\"). Reasonable inferences from the evidence are permissible, Ruthig v. Saginaw Transfer Co., 337 F.2d 393, 395 (7th Cir.1964), but inferences must be reasonably supported by the evidence and cannot be mere speculation or surmise. Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1324 (11th Cir.1982); National Indus., Inc. v. Republic Nat. Life Ins. Co., 677 F.2d 1258, 1267 (9th Cir.1982).\n \n \n 11\n The case before us essentially turns on whether the district court's determination of negligence rests upon reasonable inference or speculation. Under Indiana negligence law, a landowner owes a duty to a business invitee such as Bafia to exercise reasonable care to discover possibly dangerous conditions and to take reasonable precautions to protect the invitee. Persinger v. Marathon Petroleum Co., 699 F. Supp. 1353, 1360 (S.D.Ind.1988). A landowner is liable to an independent contractor if it actively participates in the negligent act causing injury or if it fails to warn of hidden dangers on the premises that it knew of or ought to have known of and that the contractor did not know of. Id. at 1361-62; Nagler v. United States Steel Corp., 486 F.2d 794, 797 (7th Cir.1973). We therefore must determine whether the district court's finding that NIPSCO had the requisite knowledge of the danger or defect had a sufficient evidentiary basis.\n \n \n 12\n On this record it is impossible to know with certainty what actually happened to the pin from the elevator's top panel. Nevertheless, we believe the evidence supports the district judge's conclusion that NIPSCO or someone subject to NIPSCO's direction removed the pin and therefore that NIPSCO had knowledge or constructive knowledge of the missing pin. The judge is not permitted to speculate, but his conclusion--though necessarily based on inference--is not merely guesswork. Admittedly, many inferences supporting the district court's conclusion were negative: for example, the court presumed that Otis could not have removed the pin because service records would have documented such maintenance work, and that an outsider could not have removed it because of the facility's tight security. Yet no one disputes that the pin was removed. Consequently, when coupled with the evidence that NIPSCO was responsible for the care of the elevator cab and that Otis employees evidently did not service the ceiling panel prior to the accident, these inferences are sufficiently substantiated by the evidence and the district court's findings are not clearly erroneous.\n \n IV.\n \n 13\n For the foregoing reasons, we AFFIRM the ruling of the district court.\n \n \n \n 1\n The court noted that to apply res ipsa loquitur, the court would have to find, by permissible inference, that the pin was rendered missing when the elevator was in NIPSCO's exclusive control between the time the security guard was rescued and the point that Bafia and Parsons began work on it. In its conclusions of law, however, the court stated that \"[t]his inference is not reasonable and will not support the application of the doctrine.\" Order at 40-41\n \n \n ", "ocr": false, "opinion_id": 607157 } ]	Seventh Circuit	Court of Appeals for the Seventh Circuit	F	USA, Federal
607,232	null	1993-05-11	false	united-states-v-herman-l-brewton	null	United States v. Herman L. Brewton	null	null	null	null	null	null	null	null	null	null	null	null	0	Unpublished	null	null	[ "993 F.2d 1531" ]	[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/993/993.F2d.1531.92-2433.html", "author_id": null, "opinion_text": "993 F.2d 1531\n NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases.UNITED STATES, Plaintiff, Appellee,v.Herman L. BREWTON, Defendant, Appellant.\n No. 92-2433.\n United States Court of Appeals,First Circuit.\n May 11, 1993.\n \n APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS\n Herman L. Brewton on brief pro se.\n A. John Pappalardo, United States Attorney, and Paul V. Kelly, Assistant U.S. Attorney, on brief for appellee.\n D.Mass.\n AFFIRMED.\n Before Torruella, Cyr and Boudin, Circuit Judges.\n Per Curiam.\n \n \n 1\n Appellant appeals from the denial of his motion to correct sentence. He contends that his sentence for unlawfully possessing a firearm after having been convicted of a felony (hereafter, felon in possession), 18 U.S.C. § 922(g), should not have been enhanced under 18 U.S.C. § 924(e) because the offense of conviction (felon in possession) is not a \"violent felony.\" We disagree with the appellant's argument and affirm the district court's November 23, 1992 order.\n \n \n 2\n We start with the words of the relevant statutes. Section 922(g) of title 18 states as follows:\n \n \n 3\n (g) It shall be unlawful for any person -\n \n \n 4\n (1) who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year;\n \n \n 5\n . . .\n \n \n 6\n to . . . possess . . . any firearm . . . .\n \n \n 7\n Appellant does not deny that he possessed a firearm in violation of 18 U.S.C. § 922(g) after having been convicted of a felony.\n \n \n 8\n Section 924 of title 18 sets forth the penalties for various crimes, including section 922(g) felon in possession offenses. Section 924(e) reads as follows:\n \n \n 9\n (e)(1) In the case of a person who violates section 922(g) of this title and has three previous convictions ... for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be ... imprisoned not less than fifteen years....\n \n \n 10\n Appellant did not dispute below that he had at least \"three previous convictions ... for a violent felony or a serious drug offense.\" He argued instead that section 924(e)'s 15 year mandatory minimum sentence should not be imposed on him because the offense of conviction-felon in possession-was not itself a violent felony or serious drug offense.\n \n \n 11\n The plain language of section 924(e) does not require that the offense of conviction itself be a violent felony or a serious drug offense for section 924(e)'s mandatory 15 year prison term to apply. Rather, it says that any defendant who has at least three previous violent felony or serious drug offense convictions when he unlawfully possesses a firearm in violation of section 922(g) must be sentenced to at least fifteen years in prison.\n \n \n 12\n Bypassing section 924(e)'s plain language, appellant reads United States v. Doe, 960 F.2d 221 (1st Cir. 1992), to say that the offense of conviction itself must be a violent felony before section 924(e)'s 15 year term applies. Appellant's reading is wrong. In Doe, the defendant-like appellant-had been convicted of being a felon in possession in violation of 18 U.S.C. § 922(g). In addressing whether Doe was subject to § 924(e)'s mandatory minimum 15 year prison term, we determined that a prior felon in possession conviction could not properly be counted as one of the \"three previous convictions ... for a violent felony\" within the meaning of 18 U.S.C. § 924(e) because felon in possession was not necessarily a violent crime. Doe in no manner requires the offense of conviction itself to be a violent crime.\n \n \n 13\n Next, appellant contends that the district court erred in holding that appellant was a career criminal under U.S.S.G. § 4B1.1 because § 4B1.1 specifically does not apply if the offense of conviction (felon in possession) is not a violent felony and, under both Doe and a 1991 amendment to U.S.S.G. § 4B1.1, application note 2, felon in possession is not a violent felony.\n \n \n 14\n While appellant correctly reads § 4B1.1, appellant misunderstands the record, for there is no indication the district court applied § 4B1.1 to appellant. Appellant was not sentenced pursuant to U.S.S.G. § 4B1.1. Rather, the presentence report, to which appellant filed no objection, calculated appellant's sentence under U.S.S.G. § 2K2.1(a)(2)(1987), the guideline which applied to 18 U.S.C. § 922(g) offenses, and U.S.S.G. 5G1.1(b) (statutory minimum sentence imposed when it is greater than the maximum of the applicable guideline range). Appellant received the statutory minimum sentence, 15 years. 18 U.S.C. § 924(e). Consequently, appellant's argument is meritless.\n \n \n 15\n We have addressed the arguments appellant raised below in his Rule 35 motion and papers, and we find them without merit. We do not address new matter (e.g. whether appellant's predicate offenses constituted violent felonies) raised for the first time in appellant's appellate brief.\n \n \n 16\n Affirmed.\n \n ", "ocr": false, "opinion_id": 607232 } ]	First Circuit	Court of Appeals for the First Circuit	F	USA, Federal
130,137	null	2003-05-27	false	wynn-v-jenkins-chairman-virginia-parole-board-ante-p-966	Wynn	Wynn v. Jenkins, Chairman, Virginia Parole Board, Ante, P. 966	null	null	null	null	null	null	null	null	null	null	null	null	0	Published	null	null	[ "538 U.S. 1069" ]	[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/US/538/538.US.1069.02-9038.html", "author_id": null, "opinion_text": "538 U.S. 1069\n WYNNv.JENKINS, CHAIRMAN, VIRGINIA PAROLE BOARD, ET AL., ante, p. 966.\n No. 02-9038.\n Supreme Court of United States.\n May 27, 2003.\n \n 1\n Petition for rehearing denied.\n \n ", "ocr": false, "opinion_id": 130137 } ]	Supreme Court	Supreme Court of the United States	F	USA, Federal
2,533,747	Wilken	2002-09-09	false	clement-v-california-department-of-corrections	null	Clement v. California Department of Corrections	Frank CLEMENT, Plaintiff, v. CALIFORNIA DEPARTMENT OF CORRECTIONS, Et Al., Defendants	Frank Clement, Crescent City, CA, pro se., Ann Brick, American Civil Liberties Union Foundation of Northern CA Inc., Robert A. Mittelstaedt, Jennifer Starks, Pillsbury Winthrop LLP, San Francisco, CA, Donald Specter, Heather MacKay, Prison Law Office, San Quentin, CA, J. Bryce Kenny, Russell J. Clanton & Associates, Areata, CA, for plaintiff., Linda Pancho, Elizabeth S. Kim, CA State Attorney General’s Office, San Francisco, CA, for defendants.	null	null	null	null	null	null	null	null	null	null	9	Published	null	<parties id="b1138-3"> Frank CLEMENT, Plaintiff, v. CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., Defendants. </parties><br><docketnumber id="b1138-6"> No. C 00-1860 CW. </docketnumber><br><court id="b1138-7"> United States District Court, N.D. California. </court><br><decisiondate id="b1138-9"> Sept. 9, 2002. </decisiondate><br><attorneys id="b1141-10"> <span citation-index="1" class="star-pagination" label="1101"> *1101 </span> Frank Clement, Crescent City, CA, pro se. </attorneys><br><attorneys id="b1141-11"> Ann Brick, American Civil Liberties Union Foundation of Northern CA Inc., Robert A. Mittelstaedt, Jennifer Starks, Pillsbury Winthrop LLP, San Francisco, CA, Donald Specter, Heather MacKay, Prison Law Office, San Quentin, CA, J. Bryce Kenny, Russell J. Clanton & Associates, Areata, CA, for plaintiff. </attorneys><br><attorneys id="b1141-12"> Linda Pancho, Elizabeth S. Kim, CA State Attorney General’s Office, San Francisco, CA, for defendants. </attorneys>	[ "220 F. Supp. 2d 1098" ]	[ { "author_str": "Wilken", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 3468, "opinion_text": "\n220 F. Supp. 2d 1098 (2002)\nFrank CLEMENT, Plaintiff,\nv.\nCALIFORNIA DEPARTMENT OF CORRECTIONS, et al., Defendants.\nNo. C 00-1860 CW.\nUnited States District Court, N.D. California.\nSeptember 9, 2002.\n1099 1100 1101 Frank Clement, Crescent City, CA, pro se.\nAnn Brick, American Civil Liberties Union Foundation of Northern CA Inc., Robert A. Mittelstaedt, Jennifer Starks, Pillsbury Winthrop LLP, San Francisco, CA, Donald Specter, Heather MacKay, Prison Law Office, San Quentin, CA, J. Bryce Kenny, Russell J. Clanton & Associates, Arcata, CA, for plaintiff.\nLinda Pancho, Elizabeth S. Kim, CA State Attorney General's Office, San Francisco, CA, for defendants.\n\nORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION; GRANTING PLAINTIFF PARTIAL SUMMARY JUDGMENT.\nWILKEN, District Judge.\nDefendant California Department of Corrections (CDC) and the named Defendant employees of the CDC (Individual Defendants) move for summary judgment on Plaintiff Frank Clement's section 1983 claims for damages and injunctive relief. Plaintiff opposes the motion and moves for preliminary injunctive relief with respect to one of his claims. Defendants oppose Plaintiff's request for a preliminary injunction. The matter was heard on August 9, 2002. Having considered all of the papers filed by the parties and oral argument on the motion, the Court grants in part and denies in part Defendants' motion for summary judgment (Docket # 31), denies Plaintiff's request for a preliminary injunction (Docket # 53), and grants partial summary judgment to Plaintiff.\n\nBACKGROUND\nAt all times relevant to this motion, Plaintiff was a prisoner at Pelican Bay State Prison (Pelican Bay).\n\nA. Delay in Diagnosis and Treatment for Colon Cancer\nOn April 8, 1999, Plaintiff advised a nurse that he had been experiencing intermittent episodes of diarrhea, with blood and mucus in watery, loose stool. She arranged for him to see a doctor the next day. Declaration of Dwight Winslow (Winslow Dec.), Ex. A. Plaintiff was examined by a doctor at Pelican Bay on April 9, 1999. The doctor ordered a barium enema and ordered that a stool sample be tested. 1102 The doctor advised Plaintiff to return in two weeks for follow up. Id., Ex. B. Plaintiff returned to Pelican Bay clinic on April 12 complaining that his symptoms had worsened. He was taken to Sutter Coast Hospital that day. Id., Ex. C. At Sutter Coast Hospital, Plaintiff's abdomen was x-rayed and he was evaluated by Dr. Picone. Dr. Picone recommended that Plaintiff be put on a bland diet and be scheduled for a colonoscopy.[1]Id., Ex. D-E.\nThe results of the barium enema became available on April 13, 1999. They showed the presence of one small polyp, two small polypoid lesions, and several small scattered diverticula in the sigmoid colon. Id., Ex. F. On April 25, Pelican Bay medical administrative review staff approved the colonoscopy as well as an esophagogastroduodenoscopy (EGD).[2]\nPlaintiff saw Dr. White at the Pelican Bay Clinic on May 11, 1999 and on May 26, 1999. Dr. White noted that Plaintiff had lost fourteen pounds in the two weeks between visits. Declaration of Frank Clement (Clement Dec.), Exs. 8-9. On May 21, 1999, Plaintiff saw Dr. Picone at Sutter Coast Hospital. Dr. Picone again recommended a colonoscopy. Id., Ex. H. On June 9, 1999, Plaintiff saw Dr. White at the Pelican Bay clinic. Dr. White's notes from that visit indicate that she contacted Dr. Picone's office and was told that Plaintiff's colonoscopy appointment was \"pending.\" Id., Ex. N. On June 22, 1999, Plaintiff returned to the Pelican Bay clinic and again saw Dr. White. Dr. White's notes from that meeting indicate that she again contacted Dr. Picone's office and was told that Plaintiff's surgery would be scheduled. Id., Ex. P. On June 24, 1999, Dr. Picone issued an addendum to his April 12, 1999 patient note. The addendum indicates that Plaintiff had been scheduled for a colonoscopy (though it does not say when), but that a \"physical problem at the hospital prevent[ed] surgery on that day.\" Id., Ex. Q.\nOn July 16, 1999, Plaintiff was taken to Sutter Coast Hospital to have the colonoscopy and the EGD performed. Only the EGD was performed on that day. Id., Ex. R. The parties dispute why the colonoscopy was not performed on July 16. Plaintiff contends that Defendants had not given him medication necessary to prepare him for the procedure. Declaration of Frank Clement (Clement Dec.) ¶ 5. Defendants contend that there was a \"technical problem\" at the hospital that prevented the hospital from performing the procedure. Winslow Dec., Ex. R.\nOn July 20, 1999, Plaintiff filed an administrative appeal (602 appeal) because the colonoscopy had not yet been performed. On August 2, 1999, a colonoscopy was performed on Plaintiff and two polyps were removed. Id., Ex. V. The pathology report on the removed polyps revealed that one was benign and the other malignant. Id., Ex. W. The type of carcinoma revealed by the biopsy is a slow growing, non-invasive malignancy. Id. ¶ 29.\nOn August 13, 1999, Plaintiff saw Dr. Picone to follow up on the surgery. Dr. Picone recommended that Plaintiff return for another colonoscopy in six months and that Plaintiff be put on a high fiber, low-fat diet with no red meat. Id., Ex. X. Defendant Winslow, the Chief Medical Officer at Pelican Bay, does not believe that a red meat free diet is medically necessary for Plaintiff. Id. ¶ 32. Plaintiff was not immediately put on the specified diet. On August 25, 1999, Plaintiff filed a 602 appeal 1103 complaining that he was not receiving the diet ordered by Dr. Picone. Clement Dec., Ex. 14. On October 17, 1999, Plaintiff's low-fat diet was commenced, but Defendants continued to include red meat in his diet. Clement Dec. ¶ 13. On December 21, 1999, Plaintiff began to receive a second sack lunch along with his low-fat diet so that he could substitute the meat portion of his meal without sacrificing his caloric or nutritional intake. Winslow Dec. ¶ 33.\n\nB. Tennis Shoes\nPlaintiff has calcaneal bone spurs. Plaintiff contends that because of this condition, the Pelican Bay issued shoes cut into the back of his heels, making walking and exercise uncomfortable and resulting in blisters on his heels. Clement Dec. ¶ 19. Plaintiff contends that he has a medical need for tennis shoes from a vendor other than the one approved by the facility. Although his treating physician has authorized such purchases, that physician was overruled by Pelican Bay's Health Care Manager. Clement Dec. ¶ 34. Plaintiff appealed the Health Care Manager's decision through Pelican Bay's administrative system. The decision not to permit Plaintiff to purchase tennis shoes from an outside vendor was upheld on appeal. Id. ¶¶ 34, 42\nOn March 8, 2001, Plaintiff filed a petition for a writ of habeas corpus in State court seeking an order allowing him to purchase tennis shoes from an outside vendor. That writ was denied on August 20, 2001 on the grounds that \"a difference of opinion among staff does not constitute deliberate indifference to petitioner's medical needs.\" Declaration of Julianne Mossler (Mossler Dec.), Ex. D (Order Denying Petition for Writ of Habeas Corpus and Discharging Order to Show Cause).\n\nC. Receipt of Internet Materials\nIn 1998, Pelican Bay adopted a policy that materials printed from the Internet were considered \"unauthorized publications\" and could not be enclosed in letters sent to prisoners from the outside. The prison changed this policy several times over the next two years and the most recent version was formalized in a memo from the Warden in February, 2001. Declaration of Deirdre K. Mulligan (Mulligan Dec.), Ex. C.\nPelican Bay prisoners do not have access to the Internet. Prisoners, therefore, cannot directly access materials on-line. Pelican Bay's policy bans prisoners from receiving through the mail hard copies of material downloaded from the Internet.\nPlaintiff filed an inmate grievance contesting this policy in January, 1999 when his pen-pal correspondence was returned to the sender due to the new policy. Plaintiff had subscribed to an Internet pen-pal service which allows a prisoner to post a web page and solicit correspondence. Those who would like to communicate with the inmate may send an e-mail to the prisoner's web page. The service provider then downloads the e-mail and sends it via the United States Postal Service to the inmate. On January 10, 1999 and April 6, 1999, the prison mailroom rejected letters sent by the Internet service to Plaintiff because they contained messages downloaded from the Internet. Plaintiff filed a grievance which was ultimately denied by prison authorities.\nLike Pelican Bay, at least eight other prisons in California also prohibit prisoners from receiving any items downloaded from the Internet. Mulligan Dec. ¶ 6-8. Presently, the majority of California State prisons have no such regulation.\n\n\n1104 LEGAL STANDARD\n\nA. Summary Judgment\nSummary judgment is properly granted when no genuine and disputed issues of material fact remain, and when, viewing the evidence most favorably to the nonmoving party, the movant is clearly entitled to prevail as a matter of law. Fed. R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir.1987).\nThe moving party bears the burden of showing that there is no material factual dispute. Therefore, the Court must regard as true the opposing party's evidence, if supported by affidavits or other evidentiary material. Celotex, 477 U.S. at 324, 106 S. Ct. 2548; Eisenberg, 815 F.2d at 1289. The Court must draw all reasonable inferences in favor of the party against whom summary judgment is sought. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir.1991).\nMaterial facts which would preclude entry of summary judgment are those which, under applicable substantive law, may affect the outcome of the case. The substantive law will identify which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).\nWhere the moving party does not bear the burden of proof on an issue at trial, the moving party may discharge its burden of showing that no genuine issue of material fact remains by demonstrating that \"there is an absence of evidence to support the nonmoving party's case.\" Celotex, 477 U.S. at 325, 106 S. Ct. 2548. The moving party is not required to produce evidence showing the absence of a material fact on such issues, nor must the moving party support its motion with evidence negating the non-moving party's claim. Id.; see also Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 885, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990); Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir.1991), cert. denied, 502 U.S. 994, 112 S. Ct. 617, 116 L. Ed. 2d 639 (1991). If the moving party shows an absence of evidence to support the non-moving party's case, the burden then shifts to the opposing party to produce \"specific evidence, through affidavits or admissible discovery material, to show that the dispute exists.\" Bhan, 929 F.2d at 1409. A complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. Celotex, 477 U.S. at 323, 106 S. Ct. 2548.\nIf one party moves for summary judgment and it appears from the oral arguments, records, affidavits, and documents presented to the Court that there is no genuine dispute regarding material facts essential to the movant's case, and that the case cannot be proved at trial, the Court may sua sponte grant summary judgment in favor of the non-moving party. Portsmouth Square, Inc. v. Shareholders Protective Comm., 770 F.2d 866 (9th Cir.1985) (citing Cool Fuel, Inc. v. Connett, 685 F.2d 309, 311-12 (9th Cir.1982)). The fundamental issue is whether the party against whom summary judgment is rendered had a full and fair opportunity to ventilate the issues involved in the motion. See Cool Fuel, 685 F.2d at 312.\n\nB. Section 1983\nTitle 42 U.S.C. § 1983 \"provides a cause of action for the `deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States.\" Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508, 110 S. Ct. 2510, 110 L. Ed. 2d 455 (1990) (quoting 42 U.S.C. 1105 § 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred. See Graham v. Connor, 490 U.S. 386, 393-94, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the alleged violation was committed by a person acting under the color of State law. See West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988); Ketchum v. Alameda County, 811 F.2d 1243, 1245 (9th Cir.1987).\n\n1. Eighth Amendment Claims\nA prison official violates the Eighth Amendment when two requirements are met: (1) the deprivation alleged must be, objectively, sufficiently serious, see Farmer, 511 U.S. at 834, 114 S. Ct. 1970 (citing Wilson v. Seiter, 501 U.S. 294, 298, 111 S. Ct. 2321, 115 L. Ed. 2d 271 (1991)), and (2) the prison official possesses a sufficiently culpable state of mind, see id. (citing Wilson, 501 U.S. at 297, 111 S. Ct. 2321).\nIn determining whether a deprivation of a basic necessity is sufficiently serious to satisfy the objective component of an Eighth Amendment claim, a court must consider the circumstances, nature, and duration of the deprivation. The more basic the need, the shorter the time it can be withheld. See Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir.2000). Substantial deprivations of shelter, food, drinking water or sanitation for four days, for example, are sufficiently serious to satisfy the objective component of an Eighth Amendment claim. See id. at 732-733;\nThe requisite state of mind to establish an Eighth Amendment violation depends on the nature of the claim. In prison-conditions cases, the necessary state of mind is one of \"deliberate indifference.\" See, e.g., Farmer, 511 U.S. at 834, 114 S. Ct. 1970 (inmate safety); Helling, 509 U.S. at 32-33, 113 S. Ct. 2475 (inmate health); Wilson, 501 U.S. at 302-03, 111 S. Ct. 2321 (general conditions of confinement); Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976) (inmate health). Neither negligence nor gross negligence will constitute deliberate indifference. See Farmer, 511 U.S. at 835-36 & n. 4, 114 S. Ct. 1970; see also Estelle, 429 U.S. at 106, 97 S. Ct. 285 (establishing that deliberate indifference requires more than negligence).\n\n2. First Amendment Claim\nPrison regulations that infringe a prisoner's constitutional right are valid so long as they are \"reasonably related to legitimate penological interests.\" Turner v. Safley, 482 U.S. 78, 89, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987). But the legitimate penological interest may not be presumed. \"[T]he [defendant] must, at the very least, adduce some penological reason for its policy at the relevant stage of the judicial proceedings. `[C]onsiderations advanced to support a restrictive policy [must] be ... sufficiently articulated to permit ... meaningful review.' Thus, at a minimum, the reasons must be urged in the district court.\" Armstrong v. Davis, 275 F.3d 849, 874 (9th Cir.2001) (quoting Walker v. Sumner, 917 F.2d 382, 386 (9th Cir.1990)).\n\nDISCUSSION\nPlaintiff Frank Clement brings claims for damages and injunctive relief pursuant to 42 U.S.C. § 1983. He alleges three separate and distinct constitutional violations. First, he contends that Defendants violated the Eighth Amendment to the United States Constitution by delaying, denying and interfering with his medical treatment for colon cancer. Second, he alleges that Defendants violated his Eighth Amendment rights by refusing his medically necessary request for tennis 1106 shoes. Third, he alleges that Defendants violated his First Amendment rights by prohibiting him from receiving materials generated on the Internet and mailed to him at Pelican Bay.\n\nI. Diagnosis and Treatment\n\nA. Exhaustion\nThe Prison Litigation Reform Act of 1995 (PLRA), 42 U.S.C. § 1997e(a), requires a prisoner to exhaust such administrative remedies as are available before suing over prison conditions. Defendants contend that Plaintiff's claim for deliberate indifference to his medical needs with respect to the delay in receiving a colonoscopy and the delay in implementing a red meat free diet was not exhausted until after he filed this action. See Declaration of Linda L. Rianda (Rianda Dec.), Ex. B (Director's Level Appeal Decision on Plaintiff's request for a special meal).\nAs noted above, Plaintiff filed two 602 appeals concerning the diagnosis and treatment of his colon cancer. The first was filed on July 20, 1999. That appeal requested that the colonoscopy ordered by his physician be performed. The colonoscopy was performed on August 2, 1999 and the appeal was \"granted\" on September 8, 1999. Clement Dec., Ex. 6. The second 602 appeal, relating to his special diet, was filed on September 16, 1999. On October 17, 1999 a special diet for Plaintiff was started and on December 21, 1999 that diet was modified to provide Plaintiff an extra sack lunch so that he could substitute the second lunch for the red meat contained in his \"heart healthy diet.\" By December, 1999, therefore, Plaintiff had received all the relief that the prison administrative appeal system could provide. Under these circumstances, Plaintiff was not required to exhaust further administrative appeals. Gomez v. Winslow, 177 F. Supp. 2d 977, 985 (N.D.Cal.2001) (\"Because [the plaintiff] had, in essence, `won' his inmate appeal, it would be unreasonable to expect him to appeal that victory before he is allowed to file suit.\"). Plaintiff, therefore, adequately exhausted his administrative appeals as required by the PLRA.[3]\n\nB. Deliberate Indifference to Serious Medical Needs\nPlaintiff first brought his symptoms to Defendants' attention on April 8, 1999. A colonoscopy was recommended by his treating physician on April 12, 1999. The colonoscopy was not performed until August 2, 1999. Plaintiff contends that the delay in performing this procedure, which led to the discovery and removal of a malignant polyp, constitutes deliberate indifference to his medical needs.\nA prisoner who makes a claim of deliberate indifference to serious medical needs premised on delay must show that the delay resulted in substantial harm. Wood v. Housewright, 900 F.2d 1332, 1335 (1990). Plaintiff was diagnosed with carcinoma in situ, which is a slow growing, noninvasive malignancy. Winslow Dec. ¶ 29. Three colonoscopies performed on Plaintiff in the fourteen months after the removal of the malignant polyp have not detected any cancer. Id. ¶ 31, Ex. Y. Consequently, the evidence in the record indicates that Plaintiff has suffered no adverse effects from the three month delay in providing a colonoscopy.[4]\n1107 Plaintiff contends that he need not show harm caused by the delay because a \"systemic delay\" in the provision of medical care \"may be constitutionally unacceptable\" even absent a showing of serious harm. Madrid v. Gomez, 889 F. Supp. 1146, 1257 (N.D.Cal.1995). However, Plaintiff has not presented evidence that Defendants \"regular[ly] and significant[ly] delay[ed]\" the medical procedure. Id. The undisputed evidence in the record shows that the colonoscopy was initially delayed because of a problem at the hospital, not because of Defendants' actions. Winslow Dec., Exs. N, P, Q. Plaintiff contends that his procedure was subsequently rescheduled from July 16 to August 2 because of Defendants' actions. However, throughout the three month period during which Plaintiff waited to have the procedure performed, Defendants provided regular medical care, including multiple doctor visits, examination of stool samples, and a Kidney, Urinary and Bladder (KUB) x-ray. The regular provision of medical care throughout the summer of 1999 indicates that Plaintiff was not systemically denied medical treatment. Even assuming that Defendants caused the colonoscopy to be delayed from July 16 to August 2, a two week delay in providing the requested medical care is not a \"regular and significant\" delay sufficient to excuse Plaintiff from showing that the delay was harmful.\nIn short, Plaintiff has not shown that the delay in diagnosing and treating his colon cancer was sufficiently harmful to support a claim for deliberate indifference against Defendants. Plaintiff has likewise failed to show harm from any delay in providing a medically appropriate diet. Plaintiff's treating physician recommended a high fiber, low fat diet free of red meat on August 13, 1999. Pelican Bay's Chief Medical Officer determined that a diet completely free of red meat was not medically necessary. Winslow Dec. ¶ 32.[5] Plaintiff was given a high fiber, low-fat diet beginning on October 17, 1999. Beginning in December, 1999, Plaintiff's diet was supplemented with an extra sack lunch to permit him to substitute the meat portion of his meal without sacrificing caloric intake. Plaintiff appears to have abandoned his claim that the diet he is currently on reflects deliberate indifference to his medical needs. Rather, he argues that the delay in providing the diet is actionable. See Plaintiff's Opposition to Defendants' Motion for Summary Judgment (Pl.Opp.) at 7-8. However, Plaintiff has not presented any evidence that he suffered any harm from the delay. Therefore, pursuant to Wood, 900 F.2d at 1335, Defendants are entitled to summary judgment on this claim of deliberate indifference to Plaintiff's serious medical needs\n\nII. Tennis Shoes\nA federal court must give State court judgments the same preclusive effect those judgments would have in State court. Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 84, 104 S. Ct. 892, 79 L. Ed. 2d 56 (1984). Under California law, the doctrine of res judicata will prevent a party from relitigating a claim already decided on the merits if three conditions are met. Panos v. Great Western Packing Co., 21 Cal. 2d 636, 637, 134 P.2d 242 (1943). First, \"the issues decided in the prior adjudication [were] identical to those presented in the later action.\" Second, \"there was a final judgment on the merits in the prior action.\" Third, \"the party against whom the plea is raised was 1108 a party or was in privity with a party to the prior adjudication.\" Citizens for Open Access to Sand and Tide, Inc. v. Seadrift Ass'n., 60 Cal. App. 4th 1053, 1065, 71 Cal. Rptr. 2d 77 (1998).\nThe Ninth Circuit has applied the doctrine of res judicata in circumstances identical to those presented here. In Silverton v. Department of the Treasury, 644 F.2d 1341, 1347 (9th Cir.1981), the court gave preclusive effect to a State habeas decision in a subsequent section 1983 claim brought in federal court.\nIn sum, we hold that because of the nature of a state habeas proceeding, a decision actually rendered should preclude an identical issue from being relitigated in a subsequent section 1983 action if the State habeas court afforded a full and fair opportunity for the issue to be heard and determined under federal standards.\nIn this case, Plaintiff brought the same claim concerning Defendants' refusal to permit him to order medically necessary tennis shoes in a habeas proceeding in State court. That claim was decided on the merits in August, 2001. Plaintiff does not dispute that he brings the same claim in the present action. He argues, however, that his claim is not barred because the State court decided his petition without an evidentiary hearing. Plaintiff cites no authority for the proposition that an evidentiary hearing is necessary before a final judgment may be given preclusive effect. And, in fact, the State court held that Plaintiff's claim of deliberate indifference failed as a matter of law. Thus, no evidentiary hearing was necessary. Consequently, Plaintiff raised the identical claim in a prior adjudication and that decision precludes him from raising it again here.[6]\n\nIII. Preliminary Injunction\nPlaintiff has moved for preliminary injunctive relief requiring prison authorities to permit him to purchase shoes from a vendor of his choosing.\nTo establish entitlement to a preliminary injunction, Plaintiff must demonstrate either a combination of probable success on the merits and the possibility of irreparable harm, or that there exist serious questions regarding the merits and the balance of hardships tips sharply in his favor. Rodeo Collection, Ltd. v. West Seventh, 812 F.2d 1215, 1217 (9th Cir.1987); California Cooler, Inc. v. Loretto Winery, Ltd., 774 F.2d 1451, 1455 (9th Cir.1985); see also William Inglis & Sons Baking Co. v. ITT Continental Baking Co., 526 F.2d 86, 88 (9th Cir.1975); County of Alameda v. Weinberger, 520 F.2d 344, 349 (9th Cir. 1975). Because Plaintiff's claim is barred by res judicata, he cannot show that serious questions regarding the merits exist and his motion for a preliminary injunction is denied (Docket # 53).\n\nIV. First Amendment Claim\nA prisoner's constitutional right to receive information by incoming mail is undisputed. See e.g., Prison Legal News v. Cook, 238 F.3d 1145, 1149 (9th Cir.2001). A prison regulation that impinges on this right is valid only if it is reasonably related to the prison's legitimate penological interests. Turner, 482 U.S. at 89, 107 S. Ct. 2254. Four factors determine the reasonableness of the regulation.\n\n1109 First, there must be a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it ...\nA second factor relevant in determining the reasonableness of a prison restriction ... is whether there are alternative means of exercising the right that remain open to prison inmates ...\nA third consideration is the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally.\nFinally, the absence of ready alternatives is evidence of the reasonableness of a prison regulation. By the same token, the existence of obvious, easy alternatives may be evidence that the regulation is not reasonable, but is an exaggerated response to prison concerns.\nId. at 89-90, 107 S. Ct. 2254 (internal citations omitted).\nThe State must satisfy the first factor of the Turner test to succeed on this motion. That is, if the State cannot show a \"valid, rational connection\" between the policy at issue and a legitimate penological interest, the Court need not address the remaining factors. See Prison Legal News, 238 F.3d at 1151 (\"Because the Department and its Officials have failed to show that the ban on standard mail is rationally related to a legitimate penological objective, we do not consider the other Turner factors.\").\nThe burden of proof in challenges to prison regulations is set forth in Frost v. Symington, 197 F.3d 348 (9th Cir.1999). The initial burden is on the State to put forth a \"common-sense\" connection between its policy and a legitimate penal interest. If the State does so, the plaintiff must present evidence that refutes the connection. Id. at 357. The State must then present enough counter-evidence to show that the connection is not so \"remote as to render the policy arbitrary or irrational.\" Id.\n\nA. Rational Connection to Legitimate Penological Purpose\n\"All legitimate intrusive prison practices have basically three purposes: `the preservation of internal order and discipline, the maintenance of institutional security against escape or unauthorized entry, and the rehabilitation of the prisoners.'\" United States v. Hearst, 563 F.2d 1331, 1345 (9th Cir.1977) (citing Procunier v. Martinez, 416 U.S. 396, 412, 94 S. Ct. 1800, 40 L. Ed. 2d 224 (1974) rev'd on other grounds Thornburgh v. Abbott, 490 U.S. 401, 109 S. Ct. 1874, 104 L. Ed. 2d 459 (1989)).\nWith respect to the rehabilitation of prisoners, the Supreme Court has recognized that \"the weight of professional opinion seems to be that inmate freedom to correspond with outsiders advances rather than retards the goal of rehabilitation.\" Procunier, 416 U.S. at 412-13, 94 S. Ct. 1800.\nConstructive, wholesome contact with the community is a valuable therapeutic tool in the overall correctional process. ... Correspondence with members of an inmate's family, close friends, associates and organizations is beneficial to the morale of all confined persons and may form the basis for good adjustment in the institution and the community.\nId. at 413 n. 13, 94 S. Ct. 1800 (quoting Policy Statement 7300.1A of the Federal Bureau of Prisons and Policy Guidelines for the Association of State Correctional Administrators).[7]\n1110 There are, in short, recognized rehabilitative benefits to permitting prisoners to receive educational reading material and maintain contact with the world outside the prison gates. Defendants nevertheless argue that the ban on all Internet-generated material is rationally related to maintaining safety and security in the prison. Defendants contend that Internet-generated information provides a particular danger to prison security because the potential high volume of e-mail, the relative anonymity of the sender, and the ability of senders easily to attach lengthy articles and other publications would greatly increase the risk that prohibited criminal communications would enter the prison undetected and would make tracing their source more difficult. See In re Collins, 86 Cal. App. 4th 1176, 1184, 104 Cal. Rptr. 2d 108 (2001) (upholding the regulation challenged here).[8]\nDefendants' justification for the regulation rests on two premises. The first is that accepting mail that contains material downloaded from the Internet will substantially increase the quantum of mail sent to the facility and that regulating mail based on its origin is a rational approach to regulating excessive quantity. The second premise is that Internet-produced material has unique characteristics that make it susceptible to misuse. Specifically, Internet-produced material is more difficult to trace and facilitates transmission of hidden impermissible coded messages.\n\n1. Volume Control\nIn Morrison v. Hall, 261 F.3d 896 (9th Cir.2001), the plaintiff challenged a prison regulation that prohibited prisoners from receiving all bulk rate, third class and fourth class mail. Defendants argued that the regulation was rationally related to its legitimate need to \"limit the total quantum of mail that enters the state prison system.\" Id. at 903. The court held that \"prohibiting inmates from receiving mail based on the postage rate at which the mail was sent is an arbitrary means of achieving the goal of volume control.\" Id. at 903-04. Similarly, here, prohibiting all mail produced by a certain medium downloaded from the Internet is an equally arbitrary way to achieve a reduction in mail volume.\nFor the reasons identified by the Supreme Court and the Ninth Circuit and discussed above, any negative impact on prison resources created by a supposed increase in prison mail may be outweighed by the penological benefits of inmate correspondence with the outside world. The Court need not make such a determination here, however. If Pelican Bay officials believe that the safety and security of the prison is threatened by an increase in the quantity of mail, they have more direct means at their disposal to address that concern. Specifically, Defendants could limit the number of pages an inmate may receive in each piece of correspondence. Alternatively, they could regulate the number of pieces of correspondence received by each inmate. Because the prison may directly regulate the quantity of pages or the number of pieces of mail received by each prisoner, Defendants' policy of identifying an arbitrary substitute for volume and regulating that substitute lacks any rational basis.\n\n\n1111 2. Susceptibility to Misuse\nDefendants' second justification for the ban on Internet-produced material is that prohibited communication, such as coded criminal correspondence, is more easily hidden in such material and, moreover, such improper correspondence is harder to trace when found.\nDefendants have failed to articulate any reason to believe that Internet-produced materials are more likely to contain coded, criminal correspondence than photocopied or handwritten materials. Defendants state that \"coded messages [can be] included in e-mail [and] cut and pasted into materials downloaded from the Internet that are not contained in e-mail; for example, in articles downloaded from a medical or legal web site.\" Defendants' Reply to Plaintiff's Opposition to Defendants' Motion for Summary Judgment (Defendants' Reply) at 8:8-9. There is no dispute, however, that the same information can be sent to prisoners at Pelican Bay if it is photocopied from a book, transcribed by hand, scanned, or produced in word-processed form. Defendants have failed to explain why criminal communications are less likely to be included through these permissible forms of correspondence.\nDefendants have similarly failed to justify their belief that Internet communications that are sent to Pelican Bay are harder to trace than other, permitted communications. As noted, Pelican Bay prisoners do not have access to the Internet. The correspondence prohibited by the challenged regulation includes any information downloaded from the Internet and sent by regular mail to the facility. Consequently, the prohibited communications are just as likely as regular mail to have a postmark, or to contain fingerprint and DNA evidence. It is true that the author of an e-mail may not provide his identity. However, this fact does not differentiate e-mail correspondence from anonymous typed missives. The evidence in the record suggests that Internet-produced materials are, in fact, easier to trace than anonymous letters because the major e-mail providers include a coded Internet Protocol address (IP address) in the header of every e-mail. Declaration of Mike Godwin (Godwin Dec.) ¶ 12. The IP address allows the recipient of an e-mail to identify the sender by contacting the service provider. Id. at ¶ 13. There are, of course, means available to disguise the origin of an e-mail message. See Declaration of Heather Mackay (Mackay Dec.), Ex. A (Transcript of Proceedings in Collins v. Ayers, No. 98-273-X (June 8, 1999)) at 48-9. The relevant question here, however, is whether e-mail and other Internet communications sent through the United States mail are inherently more difficult to trace than permissible, anonymous correspondence. The evidence suggests that the opposite is true.\nIn addition, Defendants primarily screen prisoner mail for content, not for the identity of the sender, so the traceability of Internet-produced information is only marginally relevant to Defendants' penological interests. For example, Pelican Bay does not require that correspondence to prisoners contain a return address. Mackay Dec., Ex. A at 39.[9] This fact suggests that the prison has no interest in tracking down those who communicate with prisoners. In fact, the only mail that is banned because of the identity of the sender is correspondence from another prisoner. 15 C.C.R. § 3133. Because prisoners do not have access to the Internet, permitting prisoners to receive Internet-produced material 1112 would not allow prisoners to circumvent this regulation.\nIn sum, Defendants have not satisfied the first factor of the Turner test because they have not articulated a rational connection between the policy at issue and a legitimate penological interest. This factor, moreover, \"is the sine qua non\" in determining the constitutionality of a prison regulation. Morrison, 261 F.3d at 901; see also Prison Legal News, 238 F.3d at 1151 (\"Because the Department and its Officials have failed to show that the ban on standard mail is rationally related to a legitimate penological objective, we do not consider the other Turner factors.\"). Nevertheless, the other factors enumerated in Turner also support denying Defendants' motion for summary judgment.\n\nB. Alternative Means of Exercising First Amendment Rights\nPlaintiff has presented undisputed evidence that certain information of particular interest to prisoners is only available on the Internet. For example, a non-profit organization devoted to raising awareness of and preventing sexual violence in prison publishes its information only on the Internet. Declaration of Lara Stemple (Stemple Dec.) ¶¶ 2-3. Other information can be acquired in hard copy only through time-consuming and expensive effort. Declaration of Beverly Lozano (Lozano Dec.) ¶¶ 3-4.\nDefendants argue that the availability of information in alternative for a is not relevant in the Turner analysis. Rather, Defendants contend that any information that is available only over the Internet can be transcribed or summarized and sent into Pelican Bay. Consequently, the availability of individuals willing to write down information found on the Internet provides a sufficient alternative means for prisoners to exercise their First Amendment rights.\nDefendants' reliance on individual transcription is an impractical alternative to transmission of Internet-produced materials. Because Pelican Bay bans all materials downloaded from the Internet, not just e-mail, it is not reasonable to expect individuals interested in transmitting information to prisoners to copy verbatim lengthy articles, judicial decisions, and new procedural rules. With respect to graphics and photos, transcription is impossible. Moreover, summarization of information by laypeople could result in incorrect or improperly interpreted information being transmitted. Consequently, transcription and summarization of Internet-produced material is not a viable alternative to downloading and transmitting this information through the United States mail.\n\nC. Impact on Prison Resources\nDefendants argue that the increase in the number of pages of mail that would ensue if prisoners were allowed to receive Internet-generated material would overload the mail room staff, with a consequent adverse impact on the allocation of prison resources. However, as noted above, the prohibition at issue here is an imperfect and arbitrary substitute for regulating quantity of mail. Whatever impact increased mail volume may have on prison resources cannot justify Pelican Bay's ban on materials generated from this particular source.\n\nD. Available Alternatives to the Challenged Policy\nEvidence of an \"alternative that fully accommodates the prisoner's rights at de minimis cost to valid penological interest\" is evidence that the regulation is unreasonable. Turner, 482 U.S. at 91, 107 S. Ct. 2254. Defendants have asserted a penological interest in limiting the overall 1113 quantity of mail sent to the prison, but have offered no evidence that they cannot impose limits on the quantity of mail received by individual prisoners either through page limitations or limitations on the number of pieces of mail. For purposes of this motion, the Court assumes that controlling mail quantity serves a valid penological purpose. A volume control policy would address Defendants' proffered concern the increase in the total quantum of mail without violating the First Amendment rights of prisoners to receive Internet-generated information. Consequently, the availability of this alternative policy suggests the ban on Internet-generated materials is unreasonable.\n\nE. Defendants' Judicial and Statutory Authority\nDefendants point out that the California Court of Appeal has examined the regulation at issue here and found it constitutional. See In re Collins, 86 Cal. App. 4th 1176, 1186, 104 Cal. Rptr. 2d 108 (2001). However, the Collins decision is not binding authority and it has no preclusive effect in this litigation because Plaintiff was not a party to that case. See Hydranautics v. FilmTec Corp., 204 F.3d 880 (9th Cir. 2000).\nIn addition, Collins is distinguishable from this case in one respect. In Collins, the plaintiff did not present any evidence to refute the defendants' showing of a rational connection between the regulation and the asserted penological interest. 86 Cal. App. 4th at 1184, 104 Cal. Rptr. 2d 108. In this case, Plaintiff has submitted numerous declarations relevant to the relative anonymity of Internet-generated material, the availability of alternative sources of information provided on the Internet, and the impact of mailed Internet material on mail volume. This evidence sufficiently \"refutes a common-sense connection between a legitimate objective and a prison regulation.\" Frost, 197 F.3d at 357.\nMoreover, the Collins court concluded that California Code of Regulations section 3133 prohibited the defendant prison from imposing limitations on the number of pieces of correspondence a prisoner may receive, or the number of pages a prisoner may receive in each piece of correspondence. Collins, 86 Cal.App.4th at 1186, 104 Cal. Rptr. 2d 108. This regulation states that \"there shall be no limitations placed upon the number of persons with whom an inmate may correspond....\" On its face, this regulation says nothing about the number of pages or the quantity of separate pieces of correspondence a prisoner may receive. Because of the differing procedural posture of Collins and this case and because this Court does not construe C.C.R. § 3133 as prohibiting reasonable limitations on the quantity of prisoner mail, the Court declines to follow Collins here.\nIn support of the reasonableness of this regulation, Defendants also point to other States that, they contend, have addressed similar penological concerns with substantially similar regulations. Defendants contend that Arizona and Minnesota have each enacted regulations \"encompassing the instant issue.\" Defendants' Reply at 8:12-14. The Minnesota statute relied on by Defendants states, in its entirety,\nSubdivision 1. Restrictions on use of online services. No adult inmate in a state correctional facility may use or have access to any Internet service or online service, except for work, educational, and vocational purposes approved by the commissioner.\nSubdivision 2. Restrictions on computer use. The commissioner shall restrict inmates' computer use to legitimate work, educational, and vocational purposes.\n\n1114 Subdivision 3. Monitoring of computer use. The commissioner shall monitor all computer use by inmates and perform regular inspections of computer equipment.\nMinn.Stat.Ann. § 243.556. This statute regulates Minnesota prisoners' access to \"any Internet service.\" The Arizona statute relied on by Defendants similarly regulates prisoners' \"access to the internet through the use of a computer, computer system, network, communication service provider or remote computing service.\" Ariz.Rev.Stat. §§ 31-235, 31-242.\nAs noted above, California prisoners do not have access to the Internet. The regulation at issue in this motion prohibits people outside the prison from sending to the prison information published on the Internet. Because neither the Minnesota nor the Arizona statute purports to address prisoners' access to information published on the Internet, these statutes offer no support for Defendants' position that the disputed regulation is reasonable.\n\nF. Qualified Immunity\nDefendants argue that they are immune from liability for any First Amendment violation because the Pelican Bay policy \"did not violate clearly established statutory or constitutional rights of which a reasonable person would have known.\" Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). Qualified immunity, however, is limited to actions for damages against a government official in his individual capacity. It is not available to a government entity when an official is sued in his official capacity. See Brandon v. Holt, 469 U.S. 464, 472-73, 105 S. Ct. 873, 83 L. Ed. 2d 878 (1985); Owen v. City of Independence, 445 U.S. 622, 651, 100 S. Ct. 1398, 63 L. Ed. 2d 673 (1980). Nor is it available when the only relief sought is injunctive. See American Fire, Theft & Collision Managers, Inc. v. Gillespie, 932 F.2d 816, 818 (9th Cir.1991). Plaintiff's First Amendment claim is brought against Defendants in their official capacity and seeks only injunctive relief.[10] Therefore, Defendants are not entitled to immunity from suit.\n\nV. Summary Judgment and Prospective Relief\nPlaintiff did not move for summary judgment. However, a review of the record and the papers submitted by the parties shows that there are no disputes of material fact for trial. At the hearing on this motion, Defendants stated that they had no additional evidence to present in response to a contemplated motion for summary judgment from Plaintiff. Consequently, because the parties have had a full opportunity to present the issues and any evidence in support of their respective positions, the Court, on its own motion, grants Plaintiff summary judgment on his claim that Pelican Bay's refusal to allow him to receive Internet-generated material through the United States mail violates his First Amendment rights.\nPlaintiff seeks injunctive relief precluding Defendants from confiscating or returning mail containing Internet-generated material. A party is entitled to a permanent injunction if it shows actual success on the merits and the likelihood of irreparable harm. Easyriders Freedom 1115 F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1495 (9th Cir.1996); Sierra Club v. Penfold, 857 F.2d 1307, 1318 (9th Cir.1988). For the reasons already stated, Plaintiff has shown that the prison's policy of prohibiting Internet-produced material from being received by prisoners violates the First Amendment. \"[T]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.\" S.O.C., Inc. v. County of Clark, 152 F.3d 1136, 1148 (9th Cir.) (quoting Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976)), amended by 160 F.3d 541 (9th Cir.1998). Consequently, Plaintiff is entitled to permanent injunctive relief.\nInjunctive relief, in this case, must comply with the requirements of the PLRA. The PLRA states,\nProspective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.\n18 U.S.C. § 3626(a)(1)(A).\nPlaintiff brings this action solely on his own behalf. However, he has introduced evidence that other prisoners, at other prisons, have been similarly affected by the ban on Internet-generated materials. See Lozano Dec ¶ 6; Declaration of Sheilah Glover (Glover Dec.) ¶ 8. The undisputed evidence shows that the violation of Plaintiff's First Amendment rights is not an \"isolated violation\" but rather results from \"policies or practices pervading the whole system.\" Armstrong v. Davis, 275 F.3d 849, 870 (9th Cir.2001).\nIn this circumstance, in order to correct the violation, the Court must, at a minimum, enjoin the unconstitutional policy. Such an injunction is the \"least intrusive means necessary\" because a limited injunction directed only at the unconstitutional policy does not \"require the continuous supervision of the court, nor do[es it] require judicial interference in the running of the prison system.\" Gomez v. Vernon, 255 F.3d 1118, 1130 (9th Cir.2001). Prohibiting Defendants from enforcing a policy of rejecting prisoner mail based solely on the fact that the mail contains information downloaded from the Internet \"is not overly intrusive and unworkable and would not require for its enforcement the continuous supervision by the federal court over the conduct of state officers.\" Armstrong, 275 F.3d at 872. Rather, such an injunction is narrowly tailored to redress the violation established by Plaintiff and is therefore authorized by the PLRA. Id. at 870 (\"The scope of injunctive relief is dictated by the extent of the violation established.\") (quoting Lewis v. Casey, 518 U.S. 343, 359, 116 S. Ct. 2174, 135 L. Ed. 2d 606 (1996)); see also Crofton v. Roe, 170 F.3d 957 (9th Cir.1999) (affirming district court's injunction which prohibited, on First Amendment grounds, the defendant prison from enforcing a blanket ban on the receipt of gift publications).\n\nVI. Evidentiary Objections\nIn support of their motion for summary judgment, Defendants submitted copies of three abstracts of judgments which show the crimes for which Plaintiff is currently incarcerated. Plaintiff objects to these three exhibits on the grounds that they are \"irrelevant and calculated to inflame the court and prejudice it against the plaintiff.\" Plaintiff's Objections to Defendants' Evidence (Pl.Obj.) at 1. Defendants argue that the abstracts of judgment show Plaintiff's potential for violence and 1116 that his violent tendencies are probative of the reasonableness of their policy prohibiting all prisoners at Pelican Bay from receiving Internet-generated information. As discussed above, Defendants argued that Internet-generated material facilitates transmission of criminal communications. Plaintiff's criminal history may be evidence relevant to this contention. The Court does not find that this probative value \"is substantially outweighed\" by the danger of unfair prejudice. Fed.R.Evid. 403.\nPlaintiff also objects, pursuant to Federal Rule of Evidence 705, to two paragraphs in the Declaration of Dwight Winslow. As noted above, these objections go to the weight of the evidence, not its admissibility. The Winslow Declaration is admissible in its entirety.\n\nCONCLUSION\nFor the foregoing reasons, Defendants' motion for summary judgment is granted in part and denied in part (Docket # 31). Plaintiff's motion for a preliminary injunction is denied (Docket # 53). Plaintiff's objections to evidence are overruled and his request for judicial notice is granted (Docket # # 63, 49).\nThe Court, on its own motion, grants Plaintiff summary judgment on his First Amendment claim. By separate order, the Court will permanently enjoin Defendants from enforcing any policy prohibiting California inmates from receiving mail that contains Internet-generated information. Judgment shall enter accordingly. Each party shall bear its own costs.\nNOTES\n[1] A colonoscopy is a visual examination of the inner surface of the colon by means of a colonoscope. Stedman's Medical Dictionary at 367 (26th ed.1995).\n[2] An EGD is an endoscopic examination of the esophagus, stomach and duodenum. Id. at 598.\n[3] Defendants do not dispute that Plaintiff's Eighth Amendment claim relating to the provision of tennis shoes and his First Amendment claim concerning Internet materials were exhausted under the PLRA.\n[4] The fact that Plaintiff lost fourteen pounds while awaiting surgery is not a sufficient showing of harm because, after an initial period of weight loss, Plaintiff's weight stabilized. Moreover, Plaintiff has not presented evidence linking his weight loss to the delay in receiving the colonoscopy.\n[5] Plaintiff objects to, and moves to strike, paragraph thirty-two of the Winslow Declaration on the grounds that the declarant failed to set forth the reasoning underlying his opinion that a diet free of red meat is not medically necessary. Plaintiff's objection goes to the weight of the evidence, not its admissibility. His objection is, therefore, overruled.\n[6] Plaintiff also argues that the decision of the State court was not final because Plaintiff could have, but did not, appeal that decision. However, Plaintiff may not bootstrap his own failure to appeal a final judgment to circumvent the preclusive effect of that order. Plaine v. McCabe, 797 F.2d 713, 719 n. 12 (9th Cir.1986) (\"If an adequate opportunity for review is available, a losing party cannot obstruct the preclusive use of the state administrative decision simply by foregoing her right to appeal.\").\n[7] In striking down a restriction on the receipt of bulk rate mail, the Ninth Circuit also noted a \"correlation between reading, writing and inmate rehabilitation.\" Morrison v. Hall, 261 F.3d 896, 904 n. 7 (9th Cir.2001) (citing Willoughby Mariano, Reading Books Behind Bars Reading Programs for State Prison Inmates and Juvenile Hall Wards are Critical to Helping Offenders Develop Literacy and Avoid Return to Crime, Experts Say, L.A. Times, Jan. 30, 2000, at B2).\n[8] Defendants have not presented any evidence to support their characterization of the effects of Internet-generated material on prison security. The absence of evidence, however, is not fatal to Defendants' motion. The Court's inquiry under Turner is not whether the policy actually serves a penological interest, but rather whether it was rational for prison officials to believe that it would. Mauro v. Arpaio, 188 F.3d 1054, 1060 (9th Cir.1999).\n[9] Plaintiff's request that the Court take judicial notice of the transcript from this proceeding is unopposed. That request is granted (Docket # 49).\n[10] Plaintiff sought damages from Defendants on his Eighth Amendment claims. However, because there was no substantive Eighth Amendment violation, the Court need not determine if immunity would apply. See Conn v. Gabbert, 526 U.S. 286, 290, 119 S. Ct. 1292, 143 L. Ed. 2d 399 (1999) (a court considering a claim of qualified immunity must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right, then proceed to determine if the right was \"clearly established\").\n\n", "ocr": false, "opinion_id": 2533747 } ]	N.D. California	District Court, N.D. California	FD	California, CA
608,577	null	1993-06-02	false	standley-vee-barnes-v-richard-a-vernon-director-of-corrections-james	null	null	Standley Vee Barnes v. Richard A. Vernon, Director of Corrections James Hope, Warden Icio Pam Sonnen, Deputy Warden Icio Lt. MacEachern Head of Security Linda Copple Trout, Judge, Second District Court, Clearwater County	null	null	null	null	null	null	null	null	null	null	null	0	Unpublished	null	null	[ "995 F.2d 230" ]	[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/995/995.F2d.230.92-36876.html", "author_id": null, "opinion_text": "995 F.2d 230\n NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Standley Vee BARNES, Plaintiff-Appellant,v.Richard A. VERNON, Director of Corrections; James Hope,Warden ICIO; Pam Sonnen, Deputy Warden ICIO; Lt.Maceachern, Head of Security; Linda Copple Trout, Judge,Second District Court, Clearwater County, Defendants-Appellees.\n No. 92-36876.\n United States Court of Appeals, Ninth Circuit.\n Submitted May 25, 1993.Decided June 2, 1993.\n \n Before: HUG, WIGGINS, and THOMPSON, Circuit Judges.\n \n \n 1\n MEMORANDUM\n \n \n 2\n Standley Vee Barnes, an Idaho state prisoner, appeals pro se the district court's dismissal pursuant to 28 U.S.C. § 1915(d) of his civil rights action. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review a dismissal pursuant to section 1915(d) for abuse of discretion. Denton v. Hernandez, 112 S.Ct. 1728, 1734 (1992). We reverse and remand.\n \n \n 3\n Background\n \n \n 4\n Barnes filed a civil rights action pursuant to 42 U.S.C. § 1983.1 Barnes's complaint alleged that the prison officials at the Idaho Correctional Institution-Orofino (\"ICIO\") violated his right to due process and equal protection, and his right to be free from cruel and unusual punishment by denying him visitation with his daughter. The district court found Barnes's complaint to lack an arguable basis in law or in fact and dismissed the complaint with prejudice. Barnes timely appeals.\n \n II\n Analysis\n \n 5\n Dismissal of an informa pauperis complaint under 28 U.S.C. § 1915(d) is proper only if the action is frivolous. Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir.1989). A complaint is frivolous if it \"lacks an arguable basis in law or in fact.\" Neitzke v. Williams, 490 U.S. 319, 325 (1989).\n \n \n 6\n Barnes contends the district court erred by dismissing his due process, Eighth Amendment, and equal protection claims as frivolous. We agree.\n \n A. Due Process Claim\n \n 7\n Although prison visitation is not independently protected by the due process clause of the fourteenth amendment, a state may create a protected liberty interest \"by placing substantive limits on official discretion.\" Kentucky v. Dep't of Corrections v. Thompson, 490 U.S. 454, 461 (1989). See also Mendoza v. Blodgett, 960 F.2d 1425, 1432-33 (9th Cir.1992) (Washington state regulations contained the substantive predicates necessary to create a protected liberty interest in prison visitation), cert. denied, 113 S.Ct. 1005 (1993), cert denied, 113 S.Ct. 1027 (1993). Because the record before us does not contain evidence of Idaho's prison visitation policies and regulations, we are unable to determine whether Idaho has created a protected liberty interest in visitation. Therefore, it is unclear from the district court record that Barnes's due process claim is frivolous. See Neitzke, 490 U.S. at 325.\n \n B. Eighth Amendment Claim\n \n 8\n The Eighth Amendment prohibits unnecessary and wanton infliction of pain. U.S. Const.Am. VIII. \"Among 'unnecessary and wanton' inflictions of pain are those that are 'totally without penological justification.' \" Rhodes v. Chapman, 452 U.S. 337, 346 (1981) (citation omitted). The record does not contain evidence of ICIO prison officials' reasons for denying Barnes visitation with his minor daughter. Therefore, it is unclear from the record whether the prison officials' actions were penologically justified. Accordingly, we cannot conclude that Barnes's Eighth Amendment claim is frivolous. See Neitzke, 490 U.S. at 325.\n \n C. Equal Protection Claim\n \n 9\n The Equal Protection Clause of the Constitution protects against arbitrary and unreasonable classifications of laws and regulations. U.S. Const.Am. XIV. To state a claim for violation of the equal protection clause, a plaintiff must show intentional discrimination. Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104, 1112 (9th Cir.1991). A state does not deny an individual equal protection where the state's action is rationally related to a legitimate state interest. See Christian Gospel Church, Inc. v. San Francisco, 896 F.2d 1221, 1225-26 (9th Cir.), cert. denied, 498 U.S. 999 (1990). Here, the district court adopted in full the magistrate judge's report and recommendation, which stated that the Idaho prison policy \"apparently bars contact between parent and children when the parent has been convicted of sexual abuse crimes.\" The district court record, however, fails to support this statement. Therefore, it is unclear from the record that Barnes's equal protection claim is frivolous. See Neitzke, 490 U.S. at 325.\n \n \n 10\n Accordingly, dismissal of Barnes's complaint pursuant to section 1915(d) was improper, and we remand to the district court for service of process. See Denton, 112 S.Ct. at 1734.\n \n \n 11\n REVERSED AND REMANDED.\n \n \n \n \n The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4\n \n \n *\n This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3\n \n \n 1\n Barnes's daughter Shea also was listed as a plaintiff, but she is not a party to this appeal\n \n \n ", "ocr": false, "opinion_id": 608577 } ]	Second Circuit	Court of Appeals for the Second Circuit	F	USA, Federal
845,439	null	2006-08-29	false	robins-v-epi-printers-inc	Robins	Robins v. EPI PRINTERS, INC.	null	null	null	null	null	null	null	null	null	null	null	null	1	Published	null	null	[ "720 N.W.2d 321" ]	[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 1, "download_url": "http://publicdocs.courts.mi.gov:81/SCT/PUBLIC/ORDERS/20060829_S130762_125_130762_2006-08-29_or.pdf", "author_id": null, "opinion_text": "\n720 N.W.2d 321 (2006)\nJames E. ROBINS, Jr., Plaintiff-Appellant,\nv.\nEPI PRINTERS, INC., Defendant-Appellee.\nDocket No. 130762. COA No. 258270.\nSupreme Court of Michigan.\nAugust 29, 2006.\nOn order of the Court, the motion for reconsideration of this Court's order of June 26, 2006 is considered, and it is DENIED, because it does not appear that the order was entered erroneously.\n", "ocr": false, "opinion_id": 845439 } ]	Michigan Supreme Court	Michigan Supreme Court	S	Michigan, MI
594,907	null	1992-11-19	false	james-w-matthews-v-department-of-corrections-state	null	James W. Matthews v. Department of Corrections, State of North Carolina Allen S. Harper	null	null	null	null	null	null	null	null	null	null	null	null	0	Unpublished	null	null	[ "979 F.2d 848" ]	[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/979/979.F2d.848.92-1869.html", "author_id": null, "opinion_text": "979 F.2d 848\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.James W. MATTHEWS, Plaintiff-Appellant,v.DEPARTMENT OF CORRECTIONS, State of North Carolina; AllenS. Harper, Defendants-Appellees.\n No. 92-1869.\n United States Court of Appeals,Fourth Circuit.\n Submitted: October 26, 1992Decided: November 19, 1992\n \n Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh.\n James W. Matthews, Appellant Pro Se.\n Sylvia Hargett Thibaut, Assistant Attorney General, Raleigh, North Carolina, for Appellees.\n E.D.N.C.\n AFFIRMED.\n Before ERVIN, Chief Judge, and RUSSELL and WIDENER, Circuit Judges.\n PER CURIAM:\n \n \n 1\n James W. Matthews appeals from the district court's order denying relief under 42 U.S.C. § 1983 (1988). 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. Matthews v. Dep't of Corrections, No. CA-91-771 (E.D.N.C. Apr. 9, 1992). 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 AFFIRMED\n ", "ocr": false, "opinion_id": 594907 } ]	Fourth Circuit	Court of Appeals for the Fourth Circuit	F	USA, Federal
1,472,913	Flaherty, Former, Hutchinson, Larsen, McDERMOTT, Nix, O'Brien, Roberts	1983-04-29	false	guy-v-liederbach	Guy	Guy v. Liederbach	Mrs. Frances E. GUY, Appellee, v. Ruth E. LIEDERBACH, Executor of the Estate of Harry J. Liederbach, Esquire, Deceased, and William E. Eimer, Esquire, and Edward D. Foy, Jr., Esquire, and Liederbach, Eimer and Foy, Attorneys-At-Law, Appellants	David Freeman, Thomas N. O’Neill, Jr., Philadelphia, for appellants., Galen D. Hawk, Philadelphia, for appellee.	null	null	null	null	null	null	null	Argued Dec. 8, 1982.	null	null	179	Published	null	<citation id="b241-6"> 459 A.2d 744 </citation><br><parties id="b241-7"> Mrs. Frances E. GUY, Appellee, v. Ruth E. LIEDERBACH, Executor of the Estate of Harry J. Liederbach, Esquire, deceased, and William E. Eimer, Esquire, and Edward D. Foy, Jr., Esquire, and Liederbach, Eimer and Foy, Attorneys-At-Law, Appellants. </parties><br><court id="b241-10"> Supreme Court of Pennsylvania. </court><br><otherdate id="b241-11"> Argued Dec. 8, 1982. </otherdate><br><decisiondate id="b241-12"> Decided April 29, 1983. </decisiondate><br><attorneys id="b244-9"> <span citation-index="1" class="star-pagination" label="50"> *50 </span> David Freeman, Thomas N. O’Neill, Jr., Philadelphia, for appellants. </attorneys><br><attorneys id="b244-10"> Galen D. Hawk, Philadelphia, for appellee. </attorneys><br><judges id="b244-11"> Before O’BRIEN, C.J., and ROBERTS, NIX, LARSEN, FLAHERTY, McDERMOTT and HUTCHINSON, JJ. </judges>	[ "459 A.2d 744", "501 Pa. 47" ]	[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n501 Pa. 47 (1983)\n459 A.2d 744\nMrs. Frances E. GUY, Appellee,\nv.\nRuth E. LIEDERBACH, Executor of the Estate of Harry J. Liederbach, Esquire, deceased, and William E. Eimer, Esquire, and Edward D. Foy, Jr., Esquire, and Liederbach, Eimer and Foy, Attorneys-At-Law, Appellants.\nSupreme Court of Pennsylvania.\nArgued December 8, 1982.\nDecided April 29, 1983.\n48 49 50 David Freeman, Thomas N. O'Neill, Jr., Philadelphia, for appellants.\nGalen D. Hawk, Philadelphia, for appellee.\nBefore O'BRIEN, C.J., and ROBERTS, NIX, LARSEN, FLAHERTY, McDERMOTT and HUTCHINSON, JJ.\n\nOPINION OF THE COURT\nHUTCHINSON, Justice:\nThis case, one of first impression for us, presents the question of whether a named beneficiary of a will who is also named executrix has a cause of action against the attorney who drafted the will and directed her to witness it where the fact that she witnessed the will voided her entire legacy and her appointment as executrix. Common Pleas Court dismissed appellee's suit, relying on Lawall v. Groman, 180 Pa. 532, 37 A. 98 (1897), and two Federal cases[1] which found Pennsylvania to be a \"strict privity\" state requiring an attorney-client relationship to exist before there could be a malpractice action. Superior Court, by a divided vote, reversed the Common Pleas Court, and held that plaintiff-appellee 51 could proceed under either a negligence or an assumpsit theory. In so holding, Superior Court sought to adopt the California rule for malpractice suits in negligence enunciated in Lucas v. Hamm, 56 Cal. 2d 583, 364 P.2d 685, 15 Cal. Rptr. 821 (1961), cert. denied, 368 U.S. 987, 82 S. Ct. 603, 7 L. Ed. 2d 525 (1962), and to allow third party beneficiary suits in assumpsit under their interpretation of our holding in Pennsylvania Liquor Control Board v. Rapistan, Inc., 472 Pa. 36, 371 A.2d 178 (1976).\nWhile we agree with appellants that the Lucas standard is too broad, we nevertheless feel that a properly restricted cause of action for third party beneficiaries in accord with the principles of Restatement (Second) of Contracts § 302 (1979) is available to named legatees, such as appellee, who would otherwise have no recourse for failed legacies which result from attorney malpractice.[2] We therefore affirm in part and reverse in part the order of Superior Court, 279 Pa.Super. 543, 421 A.2d 333, and hold that while important policies require privity (an attorney-client or analogous professional relationship, or a specific undertaking) to maintain an action in negligence for professional malpractice, a named legatee of a will may bring suit as an intended third party beneficiary of the contract between the attorney and the testator for the drafting of a will which specifically names the legatee as a recipient of all or part of the estate. The policy reasons underlying the retention of privity and the dangers of adopting negligence concepts of duty analyzed in terms of scope of the risk or foreseeability, as set forth in Ultramares Corp. v. Touche, 255 N.Y. 170, 174 N.E. 441 (1931), remain cogent and are underscored by the experience in California after that state's courts abolished the doctrine to allow such suits in negligence. Lucas v. Hamm, supra. However, the grant of standing to a narrow 52 class of third party beneficiaries seems \"appropriate\" under Restatement (Second) of Contracts § 302 where the intent to benefit is clear and the promisee (testator) is unable to enforce the contract.\n\nI\nAs an appellate court reviewing the sustaining of a demurrer we accept as true all well-pleaded material facts in the complaint as well as all inferences reasonably deducible therefrom. Allstate Insurance Co. v. Fioravanti, 451 Pa. 108, 299 A.2d 585 (1973). On February 24, 1957, Edward J. Kent, then a resident of Pennsylvania, retained Harry J. Liederbach, a Pennsylvania attorney, to draft a one-page \"Last Will and Testament,\" which Liederbach did on the same day (RR-16a). The will provided that Frances E. Guy was to be the beneficiary of the residuary estate, after payment of a specific bequest of $4,500.00 to Kent's sister. Guy was also named executrix of the estate. The will was signed by Kent and, allegedly at Liederbach's direction, was witnessed by Guy and Liederbach.\nOn October 12, 1972, Kent died, apparently a resident of New Jersey.[3] The will was submitted to probate, and on July 11, 1973, Mrs. Guy qualified as executrix in the office of the Surrogate in Camden, New Jersey. However, on March 29, 1974, the Probate Division of Camden County Court, relying on a New Jersey statute, since repealed, invalidated the legacy to Mrs. Guy because she was a subscribing witness to the will.[4] (Mrs. Guy had previously resigned her 53 appointment as executrix because of the legal challenge to her right to inherit under the will). In all, Mrs. Guy was barred from taking the bulk of Kent's estate, her share totalling some $45,000 worth of property, including a parcel of real estate in Avalon, New Jersey.\nOn January 23, 1976, Mrs. Guy filed this action in Bucks County Common Pleas Court. The complaint, which consisted of one count in both trespass and assumpsit, alleged in pertinent part:\n19. The actions and conduct of the defendant Liederbach in directing and advising the plaintiff to become an attesting witness to the Will of Edward J. Kent, Jr., was negligent as contrary to the ordinary and reasonable standards for duly licensed attorneys practicing within the Commonwealth of Pennsylvania.\n20. The action and conduct of the defendant Liederbach in directing and advising the plaintiff to become an attesting witness to the will of Edward J. Kent, Jr. amounted to a breach of the contract between Edward J. Kent, Jr. and defendant Liederbach to which contract the plaintiff, Frances E. Guy, was a third party beneficiary.\n(RR-6a). Along with the facts presented above, she alleged that when the will was drafted Liederbach knew or should have known that Kent possessed personalty and realty in Avalon, New Jersey, and that Kent's express choice was that 54 Mrs. Guy should be the beneficiary of all his estate, save for the bequest to his sister.\nLiederbach filed preliminary objections in the nature of a demurrer, alleging that the absence of any attorney-client relationship between Guy and Liederbach barred any malpractice action, that the complaint failed to state facts sufficient to establish negligence on the part of Liederbach, and that the New Jersey statutes and the Camden County Probate Court's decision based on them barred Guy's suit.\n\nII\nCommon Pleas, relying on the requirement of strict privity set out in Lawall v. Groman, supra, dismissed Mrs. Guy's action. 33 Bucks Co.L.Rep. 300 (1979). On appeal to the Superior Court, the case was heard by a three judge panel which voted 2-1 to reverse the order of the trial court. Guy v. Liederbach, 279 Pa. Super. 543, 421 A.2d 333 (1980). The Superior Court held that a beneficiary has a cause of action against the attorney who drafted the will based either on a negligence theory as articulated in Lucas v. Hamm, supra, which Superior Court called \"the better view,\" or under a third party beneficiary theory, relying on their interpretation of our holding in Pennsylvania Liquor Control Board v. Rapistan, Inc., supra. Superior Court's holdings entail a change in the law of Pennsylvania in the areas of both attorney malpractice and third party beneficiaries, and we granted review of this case to give full consideration to these issues.[5]\n55 Under present Pennsylvania law, an individual who has an attorney-client relationship may sue his attorney for malpractice under either a trespass or assumpsit theory. See 1 Standard Pennsylvania Practice 2d § 4:66 and cases cited therein. In dicta, Lawall v. Groman, supra, relying on the principle that one who undertakes to perform a service for another, even without reward, is bound to exercise reasonable care and can be held responsible for misfeasance, though not for nonfeasance, stated that a third party could bring suit against an attorney in a negligence action if the attorney knew that the third party \"was relying on him in his professional capacity.\" 180 Pa. at 540, 37 A. 98. Despite this language, Federal courts interpreting Pennsylvania law have held that the mere negligence of an attorney toward someone other than a client is not actionable. Sachs v. Levy, supra; Connelly v. Wolf, Block, Schorr & Solis-Cohen, supra. Thus we have in the past adhered to the rule followed by the overwhelming majority of states requiring the privity of an attorney-client relationship in order to maintain a cause of action. See Annot., 45 A.L.R. 3d 1181. At the very least, Lawall would require a specific undertaking on the attorney's part to perform a specific service for a third party, coupled with the reliance of the third party and the attorney's knowledge of that reliance in order for the third party to bring suit.\n\nIII\nOur analysis begins with the recognition that Lawall v. Groman, albeit in dicta, allows for the bringing of suits by persons other than clients. In Lawall, a mortgagee sued an attorney for his failure to properly search records to ensure that her mortgage would be the first lien on the property. 56 The attorney's fees were paid by the mortgagor. We said while \"[t]he payment of a fee is the most usual and weighty item of evidence to establish the relationship of client and attorney . . . it is by no means indispensable.\" 180 Pa. at 537-538, 37 A. 98. The dicta in Lawall were recognized by Common Pleas, which nevertheless held that appellee does not state a cause of action falling within these dicta. The reason that appellee does not reveals the core problem in this case. Appellee does not state a cause of action under the dicta in Lawall because she could not have an attorney specifically undertake for her the writing of a testator's will which made her the residuary beneficiary of that will. She could not rely on the attorney's professional expertise because he could not employ his expertise on her behalf in such a manner. Such a beneficiary is left without any remedy for the failed legacy. Because she is a beneficiary, she could not have had privity with the attorney, nor could any specific undertaking have been arranged between them. The intentions of the testator and the expectation of the named beneficiary are thus frustrated under the strict privity rule, despite the dicta in Lawall.\n\nIV\nWe therefore turn to the question of whether the estate could sue the drafting attorney for malpractice and receive damages for the failure of the instrument to effectuate testator's intent. In any cause of action for malpractice, some harm must be shown to have occurred to the person bringing suit. In the case of a failed legacy, the estate is not harmed in any way. California, the first state to find a cause of action in malpractice for beneficiaries has held that the executor has no standing to bring an action.\nIndeed, the executor of an estate has no standing to bring an action for the amount of the bequest against an attorney who negligently prepared the estate plan, since in the normal case the estate is not injured by such negligence except to the extent of the fees paid; only the beneficiaries suffer the real loss.\n\n57 Heyer v. Flaig, 70 Cal. 2d 223, 228, 449 P.2d 161, 165, 74 Cal. Rptr. 225, 229 (1969). Even if the estate would have standing to bring the suit, the fact that no harm had occurred to it and the estate has nothing to gain would remove any incentive for suit.\n\nV\nIf the beneficiary has a cause of action it will be either in trespass or assumpsit. Appellants have argued persuasively that the rule of Lucas v. Hamm which allows for suits in trespass has proved unworkable, and has led to ad hoc determinations and inconsistent results as the California courts have attempted to refine the broad Lucas rule. Compare Ventura County Humane Society for the Prevention of Cruelty to Children and Animals, Inc. v. Holloway, 40 Cal. App. 3d 897, 115 Cal. Rptr. 464 (1974) to Bucquet v. Livingston, 57 Cal. App. 3d 914, 129 Cal. Rptr. 514 (1976), and Goodman v. Kennedy, 18 Cal. 3d 335, 556 P.2d 737, 134 Cal. Rptr. 375 (1976) to Roberts v. Ball, Hunt, Hart, Brown and Baerwitz, 57 Cal. App. 3d 104, 128 Cal. Rptr. 901 (1976). Particularly troublesome in any negligence action is the standard to be applied. The California courts have not adopted a simple negligence standard, but beginning with Biakanja v. Irving, 49 Cal. 2d 647, 320 P.2d 16 (1958) have applied a six part balancing test on a case-by-case basis.[6] Of special relevance to cases such as the present one is what the attorney \"knew or should have known,\" a task made all the more difficult by the fact that the testator, whose intentions and estate the attorney is to have knowledge of, will not be present to testify.\nSuperior Court stated that it believed the Lucas test represented the \"better view.\" Guy v. Liederbach, 279 Pa.Super.Ct. at 548, 421 A.2d at 335. We do not agree. Nor 58 do we find appellee's citations to Kassab v. Central Soya Company, 432 Pa. 217, 246 A.2d 848 (1968) and Salvador v. Atlantic Steel Boiler Company, 457 Pa. 24, 319 A.2d 903 (1974), involving the abolition of vertical and horizontal privity in products liability cases, relevant here. As appellants aptly point out, \"professional services are not like a mass-produced product whose design and manufacture impact equally on all ultimate users. To the contrary, professional services must be carefully crafted to meet the needs of individual clients.\" Brief for Appellants at 16. We find that the policy concerns expressed in Ultramares Corp. v. Touche, supra, and the history in California, following its abolition of the privity requirement in negligence suits arising out of agreements to furnish professional services, persuade us we should not eliminate the privity requirement in malpractice actions based on negligence. Thus we retain the requirement that plaintiff must show an attorney-client relationship or a specific undertaking by the attorney furnishing professional services, as in Lawall, as a necessary prerequisite for maintaining such suits in trespass on a theory of negligence.\n\nVI\nWe now consider whether appellee and those similarly situated may proceed under a third party beneficiary theory. Under current Pennsylvania law for a third party beneficiary to have standing to recover on a contract, both parties (promisor and promisee) must express an intention that the third party be a beneficiary to whom the promisor's obligation runs in the contract itself. Spires v. Hanover Fire Insurance Co., 364 Pa. 52, 70 A.2d 828 (1950). We went on to say:\n[I]n other words a promisor cannot be held liable to an alleged beneficiary of a contract unless the latter was within his contemplation at the time the contract was entered into and such liability was intentionally assumed by him in his undertaking; the obligation to the third 59 party must be created, and must affirmatively appear, in the contract itself . . .\nId., 364 Pa. at 57, 70 A.2d at 830-831. The footnote to this passage states:\nIt is true that a third party beneficiary may be in contemplation without being specifically or individually designated;. . .\nId., 364 Pa. 57 at n. , 70 A.2d at 831, n. . Yet even an insurance policy \"on account of whom it may concern\" must still include that phrase, and the intent on the part of the contracting parties to benefit an as yet unnamed third party must be present in the contract. Id.[7]\nUnder the Spires analysis, a beneficiary of a will would be a third party beneficiary with standing only if the testator and the attorney had a written contract to write a will, and the contract indicated the intention of both parties to benefit the legatee. The fact that the beneficiary is named in the will is not relevant to third party status. The will is not the contract, but rather that which is contracted for. Furthermore, even if the naming of the legatee in the will is taken as indicating the testator's intent to benefit the legatee, it cannot be taken to indicate that the drafting attorney intended to confer any benefit. It is not at all clear that an attorney ever intends to benefit a third party under a testator's will in the sense required in Spires. Thus it is very unlikely that a beneficiary could ever bring suit under the Spires requirements.\nWe believe that Restatement (Second) of Contracts § 302 (1979) provides an analysis of third party beneficiaries which permits a properly restricted cause of action for beneficiaries such as appellee. In adopting this standard, we act in accordance with the principles set forth in Restatement 60 (Second) concerning third party beneficiaries which were only hypothetically employed in Rapistan. In so doing, we overrule Spires to the extent that it states the exclusive test for third party beneficiaries.\nRestatement (Second) of Contracts § 302 (1979) states:\n§ 302. Intended and Incidental Beneficiaries\n(1) Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either\n\n(a) the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or\n(b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.\n(2) An incidental beneficiary is a beneficiary who is not an intended beneficiary.\n(Emphasis added). There is thus a two part test for determining whether one is an intended third party beneficiary: (1) the recognition of the beneficiary's right must be \"appropriate to effectuate the intention of the parties,\" and (2) the performance must \"satisfy an obligation of the promisee to pay money to the beneficiary\" or \"the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.\" The first part of the test sets forth a standing requirement. For any suit to be brought, the right to performance must be \"appropriate to effectuate the intentions of the parties.\" This general condition restricts the application of the second part of the test, which defines the intended beneficiary as either a creditor beneficiary (§ 302(1)(a)) or a donee beneficiary (§ 302(1)(b)), though these terms are not themselves used by Restatement (Second). Section 302(2) defines all beneficiaries who are not intentional beneficiaries as incidental beneficiaries. The standing requirement leaves discretion with the trial court to determine whether recognition of third party beneficiary 61 status would be \"appropriate.\" If the two steps of the test are met, the beneficiary is an intended beneficiary \"unless otherwise agreed between promisor and promisee.\"\nApplying these general considerations and Restatement (Second) § 302 to the case of beneficiaries under a will, the following analysis emerges. The underlying contract is that between the testator and the attorney for the drafting of a will. The will, providing for one or more named beneficiaries, clearly manifests the intent of the testator to benefit the legatee. Under Restatement (Second) § 302(1), the recognition of the \"right to performance in the beneficiary\" would be \"appropriate to effectuate the intention of the parties\" since the estate either cannot or will not bring suit. Since only named beneficiaries can bring suit, they meet the first step standing requirement of § 302.[8] Being named beneficiaries of the will, the legatees are intended, rather than incidental, beneficiaries who would be § 302(1)(b) beneficiaries for whom \"the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.\" In the case of a testator-attorney contract, the attorney is the promisor, promising to draft a will which carries out the testator's intention to benefit the legatees. The testator is the promisee, who intends that the named beneficiaries have the benefit of the attorney's promised performance. The circumstances which clearly indicate the testator's intent to benefit a named legatee are his arrangements with the attorney and the text of his will.\n\nVII\nAppellants argue that if we are to find any cause of action, it must be in tort (trespass) rather than in contract 62 (assumpsit). They cite Heyer v. Flaig, supra, in support of this contention:\nThis latter theory of recovery [third party beneficiary contractual remedy], however, is conceptually superfluous since the crux of the action must lie in tort in any case: there can be no recovery without negligence.\n70 Cal. 2d 223, 227, 449 P.2d 161, 164, 74 Cal. Rptr. 225, 228 (1969). This analysis is based on a common confusion of negligence doctrines relating to standard of care with those relating to scope of the risk, i.e., the class of persons to whom a duty is owed, analyzed in negligence in terms of foreseeability. Thus, although a plaintiff on a third party beneficiary theory in contract may in some cases have to show a deviation from the standard of care, as in negligence, to establish breach, the class of persons to whom the defendant may be liable is restricted by principles of contract law, not negligence principles relating to foreseeability or scope of the risk.\nAppellants also cite Duke & Co. v. Anderson, 275 Pa. Super. 65, 418 A.2d 613 (1980), which held that a trespass standard of damages applies in legal malpractice cases, even if the complaint is in assumpsit. The short answer to this argument is that on the facts of this case the measure of appellee's damages is her loss of expectancy. It would be inappropriate for us to range afield in an effort to determine whether damages in other cases should be governed by tort principles of proximate cause, substantial factor of foreseeability, or by contract principles precluding an award of \"consequential\" damages if, indeed, they differ. Suffice it to say that the causes of action in trespass and assumpsit are distinct, and cases such as appellee's who is a third party beneficiary, sound in assumpsit, and involve considerations more restrictive than trespass.\nOverarching all of appellants' arguments is the basic policy argument that allowing suits such as appellee's would perhaps lower the quality of legal services rendered to clients because of attorneys' increased concern over liability to third persons, and certainly make them much more expensive. 63 See Ultramares Corp. v. Touche, supra. We cannot accept the proposition that insuring the quality of legal services requires allowing as limited a number of persons as possible to bring suit for malpractice. However, we are not insensitive to the policy concerns raised by appellants, and accordingly refuse to adopt the \"California rule\" allowing actions in negligence or contract actions which in fact rely on negligence criteria. Nevertheless, we feel persons who are named beneficiaries under a will and who lose their intended legacy due to the failure of an attorney to properly draft the instrument should not be left without recourse or remedy as they would if appellants' argument were wholly adopted. We believe that a cause of action in assumpsit in accord with the principles of Restatement (Second) of Contracts § 302 (1979) meets the legitimate needs of appellee and those like her, while still addressing the legitimate concerns voiced by appellants.\nThe order of Superior Court is affirmed in part and reversed in part, and this case is remanded to the Court of Common Pleas of Bucks County for further proceedings in accordance with this opinion.\nO'BRIEN, Former C.J., did not participate in the decision of this case.\nNIX, J., joins this opinion and files a concurring opinion.\nLARSEN, J., files a concurring and dissenting opinion.\nROBERTS, C.J., files a dissenting opinion.\nMcDERMOTT, J., files a dissenting opinion.\nNIX, Justice, concurring.\nI agree and join in the opinion of the majority. I think further comment is required because of the dissent of Chief Justice Roberts. I concede that it is difficult conceptually to find a contract cause of action and at the same time to reject the trespass claim. I do, however, accept the legitimacy of the policy arguments set forth in the majority opinion for restricting recovery under a theory of malpractice. The use of what I believe to be an appropriate application of the third party beneficiary concept, in view of 64 its recent development, Restatement (2nd) of Contracts § 302 (1981); see, Introductory Note to Chapter 14 and Reporter's Note to § 302, Restatement (2nd) of Contracts (1981),[1] in this instance is justified even though the general trespass claim is not permitted. It would be unconscionable to permit admitted actionable conduct to be insulated by the fortuitous death of the person recognized in the law to have standing to prosecute such a claim, where the brunt of the injury from such conduct is born by a living party.[2]\nIt is for this reason that I believe the majority opinion expresses the preferable view to be followed in this matter.\nLARSEN, Justice, concurring and dissenting.\nI join Mr. Justice Hutchinson's reasoning and disposition of the contract recovery theory. I also join Mr. Justice McDermott's reasoning and proposed disposition under the tort theory.\nROBERTS, Chief Justice, dissenting.\nAlthough I agree with the majority that appellee's complaint fails to state a cause of action in trespass, I do not agree that appellee has a cognizable cause of action in assumpsit. Hence I dissent.\nAppellee's complaint alleges that, \"in exchange for valuable consideration,\" appellant agreed with decedent Kent that appellant would draft a will naming appellee as the executrix and the residuary beneficiary of decedent's estate. Such a will was prepared by appellant and executed by 65 decedent on February 24, 1957. Kent died on October 12, 1972. On March 29, 1974, a New Jersey probate court upheld a challenge to the proposed distribution of real property to appellee on the ground that appellee had signed the will as an attesting witness. See N.J.Stat.Ann. §§ 3A:3-6 & 3A:3-7. The present action was commenced on January 23, 1976, nineteen years after the execution of the will, and more than three years after the death of decedent. Appellee died in December of 1978, and the present action is being pursued by the executor of her estate.\nThe majority concludes that appellee had a right, as an intended \"third-party beneficiary,\" to insist on the fulfillment of \"the intent of the testator to benefit the legatee.\" This conclusion, however, ignores the fact that appellee could not have placed justifiable reliance upon the testamentary wishes of decedent either before or after his death, a critical factor under third-party beneficiary law. See Restatement (Second) of Contracts § 311(3) (1981). At no time during decedent Kent's life could appellee have bound decedent to the wishes expressed in his 1957 will. As decedent was under no contractual obligation to make a will which named appellee as a beneficiary, decedent was thus free to change his testamentary intent until the day he died. See, e.g., Imbruglia Estate, 479 Pa. 95, 387 A.2d 851 (1978). Even at decedent's death appellee was in no position to rely on a will naming her as beneficiary, for appellee could have no valid claim to decedent's estate until the completion of probate proceedings. Once the bequest was deemed invalid, appellee could have at most hoped for relief on an appeal, an option which she did not pursue.\nEven more important, the majority's conclusion ignores the fact that, under third-party beneficiary law, the issue is not the fulfillment of the \"intent of the testator\"; rather, it is the enforceability, by a third party, of the intent of the parties to the contract. See Restatement (Second) of Contracts, supra, at § 302(1). Here, the record is clear that appellant and decedent did not intend that appellant would render services to appellee; the sole promise which appellant 66 made to decedent was to write decedent's will, a promise which appellant performed.\nAlthough appellant fairly may be charged with having impliedly promised decedent that the execution of the will would be conducted in a manner that would not result in the nullification of the bequest to appellee, decedent's relief for a breach of such a promise would have been either a new, properly executed will or the cost of having such a will prepared. Moreover, decedent would have been obliged to seek relief within four or six years of the execution of the will, depending upon whether the contract was oral or written. See 42 Pa.C.S. §§ 5523(3) & 5527(2). Clearly decedent could not have claimed that relief could be sought by his estate after his death, fifteen years after the execution of the will. Nor, of course, could decedent's estate have claimed that it was in any respect entitled to the value of the failed bequest.\nAppellee's demand for far greater relief than that which would have been available to decedent makes it clear that what appellee is seeking to enforce is, in fact, not a promise made between appellant and decedent under the law of contracts, but rather an alleged duty owed by appellant directly to appellee under the law of torts. Having properly refused to recognize such a duty in a cause of action in trespass, the majority has offered no logical basis for its imposition of a similar duty as a purported application of third-party beneficiary law.\nThe order of the Superior Court should be reversed and the order of the Court of Common Pleas of Bucks County dismissing appellee's complaint reinstated.\nMcDERMOTT, Justice, dissenting.\nA third party beneficiary is one intended to be benefited by an exchange of promises between a promisor and promisee. It is a journey into artifice to say, that an attorney scrivener of a will makes any promise to benefit a legatee of the will he writes for another.\nThe majority, anxious to formulate apotropaic remedies for future ills, has transcended the explicit issue of the 67 instant case. Instead of addressing the question of a lawyer's duty to a known, designated legatee of a will, who has acted in reliance on the attorney's advice, and prescribing a remedy for the negligent performance thereof, they are off defending the rapidly eroding doctrine of privity.\nRecent commentary[1] and case law from other jurisdictions, clearly indicate that the continued existence of privity as a defense to an action in negligence is on very thin ice. This is particularly true in the case of a legatee who has been deprived of taking under a negligently drafted will. See Fickett v. Superior Court, 27 Ariz.App. 793, 558 P.2d 988 (1976); McAbee v. Edwards, 340 So. 2d 1167 (Fla.Dist.Ct. App.1976); Licata v. Spector, 26 Conn. Super. Ct. 378, 225 A.2d 28 (1966); Lucas v. Hamm, 56 Cal. 2d 583, 364 P.2d 685, 15 Cal. Rptr. 821; Ross v. Caunters, (1980) 2 Q.B. 297, (1979) 3 W.L.R. 605 (1979) 3 All.E.R. 580. See also, Malen and Levitt, Legal Malpractice, § 79 at 153, (West Publishing Co.1981).\nIndeed this Court in the seminal case of Lawall v. Groman, 180 Pa. 532, 37 A. 98 (1897) refused to apply the privity doctrine where to do so would immunize an attorney from a clear breach of duty to a known third party.\nIn Lawall the plaintiff had lent money to a borrower in return for a mortgage note. The plaintiff had been advised by the borrower's attorney that she would hold a first lien as a security for the loan. She later discovered that rather than a first lien, she received a third lien which was essentially worthless. There was no evidence that the borrowers' attorney acted wrongfully but clearly he had acted negligently in that he had failed to check the lien dockets. This 68 negligence was compounded by the fact that the attorney had repeatedly assured the plaintiff that he had done so, and that she had clearly relied on his assurances in deciding to lend the money. Although plaintiff testified that she had never hired the defendant as her attorney, the court found that the attorney was acting to some extent on behalf of the plaintiff.\nThe Lawall Court held that the grant of a nonsuit based on the mere form of the relationship was improper; and that: \"[I]ndependent of the relation of attorney and client,. . . [if] defendant, knowing that plaintiff was relying on him in his professional capacity . . ., undertook to perform [a] duty, he was bound to do it with ordinary skill and care in his profession, and [he] would be liable for negligence in that respect.\" Id. 180 Pa. at 540, 37 A. at 99.\nThis case presents an opportunity for this Court to establish a rule of sound principle and ample precedent, to wit: that where through the negligence of a lawyer scrivener of a will, a known designated beneficiary loses a legacy, the lawyer must answer in damages. Such a rule would obviate the need for employing a legal fiction, such as the majority's reliance on third party beneficiary theory and, contrary to the fear of the majority, requires no factitious formulae. The formula is simple: a duty breached is a tort, and the remedy exists in an action in trespass.\nFinally, I find it somewhat anomalous that the majority has embraced the policy concerns expressed in Ultramares v. Touche, 255 N.Y. 170, 174 N.E. 441 (1931), since the Court of Appeals of New York has held that those policies are inapplicable where the negligence of a professional is directed to a \"known\" third party. White v. Guarente, 43 N.Y.2d 356, 401 N.Y.S.2d 474, 372 N.E.2d 315 (1977). In fact, New York courts have recently demonstrated a willingness to adopt a more modern approach. See Baer v. Broder, 106 Misc. 2d 929, 436 N.Y.S.2d 693 (1981), aff'd. on other grounds 86 App.Div.2d 881, 447 N.Y.S.2d 538 (1982); Schwartz v. Greenfield, Stein and Weisinger, 90 Misc. 2d 882, 396 N.Y.S.2d 582 (1977).\nI agree with the Superior Court.\nNOTES\n[1] Sachs v. Levy, 216 F. Supp. 44 (E.D.Pa.1963); Connelly v. Wolf, Block, Schorr & Solis-Cohen, 463 F. Supp. 914 (E.D.Pa.1978).\n[2] Our holdings in this opinion do not address the merits of appellee's claim. We are exclusively concerned with whether appellee has any cause of action against appellants and what form that action may take. Since this case was arrested at the pleading stage, many factual issues crucial to a determination of whether malpractice occurred have never been developed.\n[3] None of the pleadings allege this fact, but since Kent owned real property in New Jersey and Guy probated the will in Camden County, it seems reasonable to assume that he died a resident of New Jersey. See Brief for Appellants at 23, 29, where it is stated that Kent \"moved to New Jersey.\"\n[4] New Jersey Statute § 3A:3-6 provided at the time:\n\n\"Effect of devisee or legatee attesting will.\nNo person who has attested a will shall be incompetent to testify concerning the execution thereof by reason of his being a beneficiary thereunder; but whether or not he testifies, as to him and those claiming under him, any beneficial devise, legacy, estate, interest gift or appointment of or affecting real or personal property, except a charge on real property for the payment of a debt, shall be void.\"\nNew Jersey Statute § 3A:3-7 further provided:\n\"Attesting witness not to receive gift directly or indirectly.\nNo attesting witness to whom a beneficial estate, interest, gift, or appointment is given or made, which is declared void pursuant to section 3A:3-6 of this title, shall demand or take possession of, or receive any profit or benefit of or from such estate, interest, gift or appointment so given or made to him by the will, or demand, receive or accept from any person any such legacy or bequest or any satisfaction or compensation for the same, in any manner or under any color or pretense whatsoever.\"\nIn 1978, New Jersey repealed the above provisions and adopted the Uniform Probate Code which does not invalidate any will or provision thereof merely because the will was signed by an interested witness. See N.J.Stat.Ann. § 3A:2A-7(b). See also In Re Estate of Janney, 498 Pa. 398, 446 A.2d 1265 (1982).\n[5] Neither Common Pleas nor Superior Court dealt with appellants' claim that the New Jersey statute, now repealed, bars appellee's suit. Common Pleas did not reach the issue, finding that Mrs. Guy had no cause of action. Superior Court found the claim \"without merit\" 279 Pa.Super.Ct. at 553, 421 A.2d at 337 (1980). While we do not decide this issue, concerning ourselves only with the existence of a cause of action for Mrs. Guy, we note that since the suit in question involves rights (her third party rights) under a contract between an attorney and his client for legal services, the laws of the state where the contract was made (here Pennsylvania) govern. Restatement (Second) of Conflicts § 188 (1969). See Melville v. American Home Assurance Co., 584 F.2d 1306 (3rd Cir.1978); Craftmark Homes, Inc. v. Nanticoke Construction Co., 526 F.2d 790 (3rd Cir.1975); Culbreth v. Simone, 511 F. Supp. 906 (E.D.Pa.1981); and Nationwide Mutual Insurance Co. v. Walter, 290 Pa. Super. 129, 434 A.2d 164 (1981), and the analyses therein which show Pennsylvania following a flexible conflicts methodology combining interest analysis and the Restatement (Second) of Conflicts. Furthermore, New Jersey would not now apply the policy behind its repealed statute. See n. 4, supra, In Re Estate of Janney, supra, and the concurring opinion of Mr. Justice (now Chief Justice) Roberts.\n[6] These factors are (1) the extent to which the transaction was intended to affect the plaintiff; (2) the foreseeability of harm to the plaintiff; (3) the degree of certainty that the plaintiff suffered injury; (4) the closeness of connection between defendant's conduct and plaintiff's injury; (5) the potential for preventing future harm; and (6) the moral blameworthiness of the defendant's conduct.\n[7] Our decision in Pennsylvania Liquor Control Board v. Rapistan, Inc., 472 Pa. 36, 371 A.2d 178 (1976) did not change this rule. While acknowledging both judicial and scholarly criticism of the narrow rule of Spires, we declined to adopt the Restatement (Second) of Contracts standard for determination of third party beneficiaries, though we analyzed the facts of that case in the light of Restatement (Second) § 302.\n[8] There are, of course, beneficiaries under a will who are not named, and who may be either intended or unintended beneficiaries. The standing requirement may or may not be met by non-named but intended beneficiaries: the trial court must determine whether it would be \"appropriate\" and whether the circumstances indicate an intent to benefit non-named beneficiaries. It follows that unintended third party beneficiaries could not bring suit under § 302 against the drafting attorney. In making that determination the trial court should be certain the intent is clear.\n[1] Recent resolution of the doctrinal difficulties historically present in the rights of contract beneficiaries by a shift of emphasis from \"duty\" to \"intention\" calls for a relaxation of the strict rule of Spires v. Hanover Fire Insurance Co., 364 Pa. 52, 70 A.2d 828 (1950).\n[2] I do not accept the implicit suggestion of the Chief Justice that there was no claim by the decedent in view of the ambulatory nature of a testamentary document prior to the death of the testator. The contract upon which the obligation arises required the scrivener to fulfill the intention of the testator expressed to him at the time of the drafting. The fact that the testator could subsequently change the proposed testamentary disposition is of no moment. The scrivener's obligation was to provide that which he undertook to do and the failure to do so constituted the breach which justified the recovery.\n[1] See e.g. Probert, Hendricks, Lawyer Malpractice: Duty Relationship Beyond Contract, 55 Notre Dame Law 708 (1980); Legal Malpractice in Estate Planning Perilous Times Ahead for the Practitioner, 67 Iowa L.Rev. 629 (May 1982); Note, Attorneys Negligence and Third Parties, 57 N.Y.U.L.Rev. 126 (April 1982); Attorney Negligence in Title Examinations and Will Drafting: Elimination of the Privity Requirement as a Bar to Recovery by Foreseeable Third Parties, 17 New Eng.L.Rev. 955 (1981-82). See also, Note, Guy v. Liederbach: Expanding the Attorneys' Duties Beyond the Limits of the Privity Requirement, 11 Cap.U.L.Rev. 643 (Spring 1982).\n\n", "ocr": false, "opinion_id": 1472913 }, { "author_str": "Hutchinson", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nOPINION OF THE COURT\nHUTCHINSON, Justice:\nThis case, one of first impression for us, presents the question of whether a named beneficiary of a will who is also named executrix has a cause of action against the attorney who drafted the will and directed her to witness it where the fact that she witnessed the will voided her entire legacy and her appointment as executrix. Common Pleas Court dismissed appellee’s suit, relying on Lawall v. Groman, 180 Pa. 532, 37 A. 98 (1897), and two Federal cases1 which found Pennsylvania to be a “strict privity” state requiring an attorney-client relationship to exist before there could be a malpractice action. Superior Court, by a divided vote, reversed the Common Pleas Court, and held that plaintiff51appellee could proceed under either a negligence or an assumpsit theory. In so holding, Superior Court sought to adopt the California rule for malpractice suits in negligence enunciated in Lucas v. Hamm, 56 Cal.2d 583, 364 P.2d 685,15 Cal.Rptr. 821 (1961), cert, denied, 368 U.S. 987, 82 S.Ct. 603, 7 L.Ed.2d 525 (1962), and to allow third party beneficiary suits in assumpsit under their interpretation of our holding in Pennsylvania Liquor Control Board v. Rapistan, Inc., 472 Pa. 36, 371 A.2d 178 (1976).\nWhile we agree with appellants that the Lucas standard is too broad, we nevertheless feel that a properly restricted cause of action for third party beneficiaries in accord with the principles of Restatement (Second) of Contracts § 302 (1979) is available to named legatees, such as appellee, who would otherwise have no recourse for failed legacies which result from attorney malpractice.2 We therefore affirm in part and reverse in part the order of Superior Court, 279 Pa.Super. 543, 421 A.2d 333, and hold that while important policies require privity (an attorney-client or analogous professional relationship, or a specific undertaking) to maintain an action in negligence for professional malpractice, a named legatee of a will may bring suit as an intended third party beneficiary of the contract between the attorney and the testator for the drafting of a will which specifically names the legatee as a recipient of all or part of the estate. The policy reasons underlying the retention of privity and the dangers of adopting negligence concepts of duty analyzed in terms of scope of the risk or foreseeability, as set forth in Ultramares Corp. v. Touche, 255 N.Y. 170,174 N.E. 441 (1931), remain cogent and are underscored by the experience in California after that state’s courts abolished the doctrine to allow such suits in negligence. Lucas v. Hamm, supra. However, the grant of standing to a narrow 52class of third party beneficiaries seems “appropriate” under Restatement (Second) of Contracts § 302 where the intent to benefit is clear and the promisee (testator) is unable to enforce the contract.\nI\nAs an appellate court reviewing the sustaining of a demurrer we accept as true all well-pleaded material facts in the complaint as well as all inferences reasonably deducible therefrom. Allstate Insurance Co. v. Fioravanti, 451 Pa. 108, 299 A.2d 585 (1973). On February 24, 1957, Edward J. Kent, then a resident of Pennsylvania, retained Harry J. Liederbach, a Pennsylvania attorney, to draft a one-page “Last Will and Testament,” which Liederbach did on the same day (RR-16a). The will provided that Frances E. Guy was to be the beneficiary of the residuary estate, after payment of a specific bequest of $4,500.00 to Kent’s sister. Guy was also named executrix of the estate. The will was signed by Kent and, allegedly at Liederbach’s direction, was witnessed by Guy and Liederbach.\nOn October 12, 1972, Kent died, apparently a resident of New Jersey.3 The will was submitted to probate, and on July 11,1973, Mrs. Guy qualified as executrix in the office of the Surrogate in Camden, New Jersey. However, on March 29, 1974, the Probate Division of Camden County Court, relying on a New Jersey statute, since repealed, invalidated the legacy to Mrs. Guy because she was a subscribing witness to the will.4 (Mrs. Guy had previously resigned her 53appointment as executrix because of the legal challenge to her right to inherit under the will). In all, Mrs. Guy was barred from taking the bulk of Kent’s estate, her share totalling some $45,000 worth of property, including a parcel of real estate in Avalon, New Jersey.\nOn January 23, 1976, Mrs. Guy filed this action in Bucks County Common Pleas Court. The complaint, which consisted of one count in both trespass and assumpsit, alleged in pertinent part:\n19. The actions and conduct of the defendant Liederbach in directing and advising the plaintiff to become an attesting witness to the Will of Edward J. Kent, Jr., was negligent as contrary to the ordinary and reasonable standards for duly licensed attorneys practicing within the Commonwealth of Pennsylvania.\n20. The action and conduct of the defendant Liederbach in directing and advising the plaintiff to become an attesting witness to the will of Edward J. Kent, Jr. amounted to a breach of the contract between Edward J. Kent, Jr. and defendant Liederbach to which contract the plaintiff, Frances E. Guy, was a third party beneficiary.\n(RR-6a). Along with the facts presented above, she alleged that when the will was drafted Liederbach knew or should have known that Kent possessed personalty and realty in Avalon, New Jersey, and that Kent’s express choice was that 54Mrs. Guy should be the beneficiary of all his estate, save for the bequest to his sister.\nLiederbach filed preliminary objections in the nature of a demurrer, alleging that the absence of any attorney-client relationship between Guy and Liederbach barred any malpractice action, that the complaint failed to state facts sufficient to establish negligence on the part of Liederbach, and that the New Jersey statutes and the Camden County Probate Court’s decision based on them barred Guy’s suit.\nII\nCommon Pleas, relying on the requirement of strict privity set out in Lawall v. Groman, supra, dismissed Mrs. Guy’s action. 33 Bucks Co.L.Rep. 300 (1979). On appeal to the Superior Court, the case was heard by a three judge panel which voted 2-1 to reverse the order of the trial court. Guy v. Liederbach, 279 Pa.Super.Ct. 543, 421 A.2d 333 (1980). The Superior Court held that a beneficiary has a cause of action against the attorney who drafted the will based either on a negligence theory as articulated in Lucas v. Hamm, supra, which Superior Court called “the better view,” or under a third party beneficiary theory, relying on their interpretation of our holding in Pennsylvania Liquor Control Board v. Rapistan, Inc., supra. Superior Court’s holdings entail a change in the law of Pennsylvania in the areas of both attorney malpractice and third party beneficiaries, and we granted review of this case to give full consideration to these issues.5\n55Under present Pennsylvania law, an individual who has an attorney-client relationship may sue his attorney for malpractice under either a trespass or assumpsit theory. See 1 Standard Pennsylvania Practice 2d § 4:66 and cases cited therein. In dicta, Lawall v. Groman, supra, relying on the principle that one who undertakes to perform a service for another, even without reward, is bound to exercise reasonable care and can be held responsible for misfeasance, though not for nonfeasance, stated that a third party could bring suit against an attorney in a negligence action if the attorney knew that the third party “was relying on him in his professional capacity.” 180 Pa. at 540, 37 A. 98. Despite this language, Federal courts interpreting Pennsylvania law have held that the mere negligence of an attorney toward someone other than a client is not actionable. Sachs v. Levy, supra; Connelly v. Wolf, Block, Schorr & Solis-Cohen, supra. Thus we have in the past adhered to the rule followed by the overwhelming majority of states requiring the privity of an attorney-client relationship in order to maintain a cause of action. See Annot., 45 A.L.R.3d 1181. At the very least, Lawall would require a specific undertaking on the attorney’s part to perform a specific service for a third party, coupled with the reliance of the third party and the attorney’s knowledge of that reliance in order for the third party to bring suit.\nIII\nOur analysis begins with the recognition that Lawall v. Groman, albeit in dicta, allows for the bringing of suits by persons other than clients. In Lawall, a mortgagee sued an attorney for his failure to properly search records to ensure that her mortgage would be the first lien on the property. 56The attorney’s fees were paid by the mortgagor. We said while “[t]he payment of a fee is the most usual and weighty item of evidence to establish the relationship of client and attorney ... it is by no means indispensable.” 180 Pa. at 537-538, 37 A. 98. The dicta in Lawall were recognized by Common Pleas, which nevertheless held that appellee does not state a cause of action falling within these dicta. The reason that appellee does not reveals the core problem in this case. Appellee does not state a cause of action under the dicta in Lawall because she could not have an attorney specifically undertake for her the writing of a testator’s will which made her the residuary beneficiary of that will. She could not rely on the attorney’s professional expertise because he could not employ his expertise on her behalf in such a manner. Such a beneficiary is left without .any remedy for the failed legacy. Because she is a beneficiary, she could not have had privity with the attorney, nor could any specific undertaking have been arranged between them. The intentions of the testator and the expectation of the named beneficiary are thus frustrated under the strict privity rule, despite the dicta in Lawall.\nIV\nWe therefore turn to the question of whether the estate could sue the drafting attorney for malpractice and receive damages for the failure of the instrument to effectuate testator’s intent. In any cause of action for malpractice, some harm must be shown to have occurred to the person bringing suit. In the case of a failed legacy, the estate is not harmed in any way. California, the first state to find a cause of action in malpractice for beneficiaries has held that the executor has no standing to bring an action.\nIndeed, the executor of an estate has no standing to bring an action for the amount of the bequest against an attorney who negligently prepared the estate plan, since in the normal case the estate is not injured by such negligence except to the extent of the fees paid; only the beneficiaries suffer the real loss.\n57Heyer v. Flaig, 70 Cal.2d 223, 228, 449 P.2d 161, 165, 74 Cal.Rptr. 225, 229 (1969). Even if the estate would have standing to bring the suit, the fact that no harm had occurred to it and the estate has nothing to gain would remove any incentive for suit.\nV\nIf the beneficiary has a cause of action it will be either in trespass or assumpsit. Appellants have argued persuasively that the rule of Lucas v. Hamm which allows for suits in trespass has proved unworkable, and has led to ad hoc determinations and inconsistent results as the California courts have attempted to refine the broad Lucas rule. Compare Ventura County Humane Society for the Prevention of Cruelty to Children and Animals, Inc. v. Holloway, 40 Cal. App.3d 897, 115 Cal.Rptr. 464 (1974) to Bucquet v. Livingston, 57 Cal.App.3d 914, 129 Cal.Rptr. 514 (1976), and Goodman v. Kennedy, 18 Cal.3d 335, 556 P.2d 737, 134 Cal.Rptr. 375 (1976) to Roberts v. Ball, Hunt, Hart, Brown and Baerwitz, 57 Cal.App.3d 104, 128 Cal.Rptr. 901 (1976). Particularly troublesome in any negligence action is the standard to be applied. The California courts have not adopted a simple negligence standard, but beginning with Biakanja v. Irving, 49 Cal.2d 647, 320 P.2d 16 (1958) have applied a six part balancing test on a case-by-case basis.6 Of special relevance to cases such as the present one is what the attorney “knew or should have known,” a task made all the more difficult by the fact that the testator, whose intentions and estate the attorney is to have knowledge of, will not be present to testify.\nSuperior Court stated that it believed the Lucas test represented the “better view.” Guy v. Liederbach, 279 Pa.Super.Ct. at 548, 421 A.2d at 335. We do not agree. Nor 58do we find appellee’s citations to Kassab v. Central Soya Company, 432 Pa. 217, 246 A.2d 848 (1968) and Salvador v. Atlantic Steel Boiler Company, 457 Pa. 24, 319 A.2d 903 (1974), involving the abolition of vertical and horizontal privity in products liability cases, relevant here. As appellants aptly point out, “professional services are not like a mass-produced product whose design and manufacture impact equally on all ultimate users. To the contrary, professional services must be carefully crafted to meet the needs of individual clients.” Brief for Appellants at 16. We find that the policy concerns expressed in Ultramares Corp. v. Touche, supra, and the history in California, following its abolition of the privity requirement in negligence suits arising out of agreements to furnish professional services, persuade us we should not eliminate the privity requirement in malpractice actions based on negligence. Thus we retain the requirement that plaintiff must show an attorney-client relationship or a specific undertaking by the attorney furnishing professional services, as in Lawall, as a necessary prerequisite for maintaining such suits in trespass on a theory of negligence.\nYI\nWe now consider whether appellee and those similarly situated may proceed under a third party beneficiary theory. Under current Pennsylvania law for a third party beneficiary to have standing to recover on a contract, both parties (promisor and promisee) must express an intention that the third party be a beneficiary to whom the promisor’s obligation runs in the contract itself. Spires v. Hanover Fire Insurance Co., 364 Pa. 52, 70 A.2d 828 (1950). We went on to say:\n[I]n other words a promisor cannot be held liable to an alleged beneficiary of a contract unless the latter was within his contemplation at the time the contract was entered into and such liability was intentionally assumed by him in his undertaking; * the obligation to the third 59party must be created, and must affirmatively appear, in the contract itself . . .\nId., 364 Pa. at 57, 70 A.2d at 830-831. The footnote to this passage states:\nIt is true that a third party beneficiary may be in contemplation without being specifically or individually designated; ...\nId., 364 Pa. 57 at n. , 70 A.2d at 831, n. . Yet even an insurance policy “on account of whom it may concern” must still include that phrase, and the intent on the part of the contracting parties to benefit an as yet unnamed third party must be present in the contract. Id.7\nUnder the Spires analysis, a beneficiary of a will would be a third party beneficiary with standing only if the testator and the attorney had a written contract to write a will, and the contract indicated the intention of both parties to benefit the legatee. The fact that the beneficiary is named in the will is not relevant to third party status. The will is not the contract, but rather that which is contracted for. Furthermore, even if the naming of the legatee in the will is taken as indicating the testator’s intent to benefit the legatee, it cannot be taken to indicate that the drafting attorney intended to confer any benefit. It is not at all clear that an attorney ever intends to benefit a third party under a testator’s will in the sense required in Spires. Thus it is very unlikely that a beneficiary could ever bring suit under the Spires requirements.\nWe believe that Restatement (Second) of Contracts § 302 (1979) provides an analysis of third party beneficiaries which permits a properly restricted cause of action for beneficiaries such as appellee. In adopting this standard, we act in accordance with the principles set forth in Restatement 60(Second) concerning third party beneficiaries which were only hypothetically employed in Rapistan. In so doing, we overrule Spires to the extent that it states the exclusive test for third party beneficiaries.\nRestatement (Second) of Contracts § 302 (1979) states: § 302. Intended and Incidental Beneficiaries\n(1) Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either\n(a) the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or\n(b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.\n(2) An incidental beneficiary is a beneficiary who is not an intended beneficiary.\n(Emphasis added). There is thus a two part test for determining whether one is an intended third party beneficiary: (1) the recognition of the beneficiary’s right must be “appropriate to effectuate the intention of the parties,” and (2) the performance must “satisfy an obligation of the promisee to pay money to the beneficiary” or “the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.” The first part of the test sets forth a standing requirement. For any suit to be brought, the right to performance must be “appropriate to effectuate the intentions of the parties.” This general condition restricts the application of the second part of the test, which defines the intended beneficiary as either a creditor beneficiary (§ 302(l)(a)) or a donee beneficiary (§ 302(l)(b)), though these terms are not themselves used by Restatement (Second). Section 302(2) defines all beneficiaries who are not intentional beneficiaries as incidental beneficiaries. The standing requirement leaves discretion with the trial court to determine whether recognition of third party beneficiary 61status would be “appropriate.” If the two steps of the test are met, the beneficiary is an intended beneficiary “unless otherwise agreed between promisor and promisee.”\nApplying these general considerations and Restatement (Second) § 302 to the case of beneficiaries under a will, the following analysis emerges. The underlying contract is that between the testator and the attorney for the drafting of a will. The will, providing for one or more named beneficiaries, clearly manifests the intent of the testator to benefit the legatee. Under Restatement (Second) § 302(1), the recognition of the “right to performance in the beneficiary” would be “appropriate to effectuate the intention of the parties” since the estate either cannot or will not bring suit. Since only named beneficiaries can bring suit, they meet the first step standing requirement of § 302.8 Being named beneficiaries of the will, the legatees are intended, rather than incidental, beneficiaries who would be § 302(l)(b) beneficiaries for whom “the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.” In the case of a testator-attorney contract, the attorney is the promisor, promising to draft a will which carries out the testator’s intention to benefit the legatees. The testator is the promisee, who intends that the named beneficiaries have the benefit of the attorney’s promised performance. The circumstances which clearly indicate the testator’s intent to benefit a named legatee are his arrangements with the attorney and the text of his will.\nVII\nAppellants argue that if we are to find any cause of action, it must be in tort (trespass) rather than in contract 62(assumpsit). They cite Heyer v. Flaig; supra, in support of this contention:\nThis latter theory of recovery [third party beneficiary contractual remedy], however, is conceptually superfluous since the crux of the action must lie in tort in any case: there can be no recovery without negligence.\n70 Cal.2d 223, 227, 449 P.2d 161, 164, 74 Cal.Rptr. 225, 228 (1969). This analysis is based on a common confusion of negligence doctrines relating to standard of care with those relating to scope of the risk, i.e., the class of persons to whom a duty is owed, analyzed in negligence in terms of foreseeability. Thus, although a plaintiff on a third party beneficiary theory in contract may in some cases have to show a deviation from the standard of care, as in negligence, to establish breach, the class of persons to whom the defendant may be liable is restricted by principles of contract law, not negligence principles relating to foreseeability or scope of the risk.\nAppellants also cite Duke & Co. v. Anderson, 275 Pa.Super.Ct. 65, 418 A.2d 613 (1980), which held that a trespass standard of damages applies in legal malpractice cases, even if the complaint is in assumpsit. The short answer to this argument is that on the facts of this case the measure of appellee’s damages is her loss of expectancy. It would be inappropriate for us to range afield in an effort to determine whether damages in other cases should be governed by tort principles of proximate cause, substantial factor of foreseeability, or by contract principles precluding an award of “consequential” damages if, indeed, they differ. Suffice it to say that the causes of action in trespass and assumpsit are distinct, and cases such as appellee’s who is a third party beneficiary, sound in assumpsit, and involve considerations more restrictive than trespass.\nOverarching all of appellants’ arguments is the basic policy argument that allowing suits such as appellee’s would perhaps lower the quality of legal services rendered to clients because of attorneys’ increased concern over liability to third persons, and certainly make them much more expen63sive. See Ultramares Corp. v. Touche, supra. We cannot accept the proposition that insuring the quality of legal services requires allowing as limited a number of persons as possible to bring suit for malpractice. However, we are not insensitive to the policy concerns raised by appellants, and accordingly refuse to adopt the “California rule” allowing actions in negligence or contract actions which in fact rely on negligence criteria. Nevertheless, we feel persons who are named beneficiaries under a will and who lose their intended legacy due to the failure of an attorney to properly draft the instrument should not be left without recourse or remedy as they would if appellants’ argument were wholly adopted. We believe that a cause of action in assumpsit in accord with the principles of Restatement (Second) of Contracts § 302 (1979) meets the legitimate needs of appellee and those like her, while still addressing the legitimate concerns voiced by appellants.\nThe order of Superior Court is affirmed in part and reversed in part, and this case is remanded to the Court of Common Pleas of Bucks County for further proceedings in accordance with this opinion.\nO’BRIEN, Former C.J., did not participate in the decision of this case.\nNIX, J., joins this opinion and files a concurring opinion.\nLARSEN, J., files a concurring and dissenting opinion.\nROBERTS, C.J., files a dissenting opinion.\nMcDERMOTT, J., files a dissenting opinion.\n\n. Sachs v. Levy, 216 F.Supp. 44 (E.D.Pa.1963); Connelly v. Wolf, Block, Schorr & Solis-Cohen, 463 F.Supp. 914 (E.D.Pa.1978).\n\n\n. Our holdings in this opinion do not address the merits of appellee’s claim. We are exclusively concerned with whether appellee has any cause of action against appellants and what form that action may take. Since this case was arrested at the pleading stage, many factual issues crucial to a determination of whether malpractice occurred have never been developed.\n\n\n. None of the pleadings allege this fact, but since Kent owned real property in New Jersey and Guy probated the will in Camden County, it seems reasonable to assume that he died a resident of New Jersey. See Brief for Appellants at 23, 29, where it is stated that Kent “moved to New Jersey.”\n\n\n. New Jersey Statute § 3A:3-6 provided at the time:\n“Effect of devisee or legatee attesting will.\nNo person who has attested a will shall be incompetent to testify concerning the execution thereof by reason of his being a beneficiary thereunder; but whether or not he testifies, as to him and those claiming under him, any beneficial devise, legacy, estate, interest gift or appointment of or affecting real or personal proper53ty, except a charge on real property for the payment of a debt, shall be void.”\nNew Jersey Statute § 3A:3~7 further provided:\n“Attesting witness not to receive gift directly or indirectly.\nNo attesting witness to whom a beneficial estate, interest, gift, or appointment is given or made, which is declared void pursuant to section 3A:3-6 of this title, shall demand or take possession of, or receive any profit or benefit of or from such estate, interest, gift or appointment so given or made to him by the will, or demand, receive or accept from any person any such legacy or bequest or any satisfaction or compensation for the same, in any manner or under any color or pretense whatsoever.”\nIn 1978, New Jersey repealed the above provisions and adopted the Uniform Probate Code which does not invalidate any will or provision thereof merely because the will was signed by an interested witness. See N.J.Stat.Ann. § 3A:2A-7(b). See also In Re Estate of Janney, 498 Pa. 398, 446 A.2d 1265 (1982).\n\n\n. Neither Common Pleas nor Superior Court dealt with appellants’ claim that the New Jersey statute, now repealed, bars appellee’s suit. Common Pleas did not reach the issue, finding that Mrs. Guy had no cause of action. Superior Court found the claim “without merit” 279 Pa.Super.Ct. at 553, 421 A.2d at 337 (1980). While we do not decide this issue, concerning ourselves only with the existence of a cause of action for Mrs. Guy, we note that since the suit in question involves rights (her third party rights) under a contract between an attorney and his client for legal services, the laws of the state where the contract was made (here Pennsylvania) govern. Restatement (Second) of Conflicts § 188 (1969). See Melville v. American Home Assurance Co., 584 F.2d 1306 (3rd Cir.1978); Craftmark Homes, Inc. v. Nanticoke Construction Co., 526 F.2d 790 (3rd Cir.1975); Culbreth 55v. Simone, 511 F.Supp. 906 (E.D.Pa.1981); and Nationwide Mutual Insurance Co. v. Walter, 290 Pa.Super.Ct. 129, 434 A.2d 164 (1981), and the analyses therein which show Pennsylvania following a flexible conflicts methodology combining interest analysis and the Restatement (Second) of Conflicts. Furthermore, New Jersey would not now apply the policy behind its repealed statute. See n. 4, supra, In Re Estate of Janney, supra, and the concurring opinion of Mr. Justice (now Chief Justice) Roberts.\n\n\n. These factors are (1) the extent to which the transaction was intended to affect the plaintiff; (2) the foreseeability of harm to the plaintiff; (3) the degree of certainty that the plaintiff suffered injury; (4) the closeness of connection between defendant’s conduct and plaintiffs injury; (5) the potential for preventing future harm; and (6) the moral blameworthiness of the defendant’s conduct.\n\n\n. Our decision in Pennsylvania Liquor Control Board v. Rapistan, Inc., 472 Pa. 36, 371 A.2d 178 (1976) did not change this rule. While acknowledging both judicial and scholarly criticism of the narrow rule of Spires, we declined to adopt the Restatement (Second) of Contracts standard for determination of third party beneficiaries, though we analyzed the facts of that case in the light of Restatement (Second) § 302.\n\n\n. There are, of course, beneficiaries under a will who are not named, and who may be either intended or unintended beneficiaries. The standing requirement may or may not be met by non-named but intended beneficiaries: the trial court must determine whether it would be “appropriate” and whether the circumstances indicate an intent to benefit non-named beneficiaries. It follows that unintended third party beneficiaries could not bring suit under § 302 against the drafting attorney. In making that determination the trial court should be certain the intent is clear.\n\n", "ocr": false, "opinion_id": 9636288 }, { "author_str": "Nix", "per_curiam": false, "type": "030concurrence", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nNIX, Justice,\nconcurring.\nI agree and join in the opinion of the majority. I think further comment is required because of the dissent of Chief Justice Roberts. I concede that it is difficult conceptually to find a contract cause of action and at the same time to reject the trespass claim. I do, however, accept the legitimacy of the policy arguments set forth in the majority opinion for restricting recovery under a theory of malpractice. The use of what I believe to be an appropriate application of the third party beneficiary concept, in view of 64its recent development, Restatement (2nd) of Contracts § 302 (1981); see, Introductory Note to Chapter 14 and Reporter’s Note to § 302, Restatement (2nd) of Contracts (1981),1 in this instance is justified even though' the general trespass claim is not permitted. It would be unconscionable to permit admitted actionable conduct to be insulated by the fortuitous death of the person recognized in the law to have standing to prosecute such a claim, where the brunt of the injury from such conduct is born by a living party.2\nIt is for this, reason that I believe the majority opinion expresses the preferable view to be followed in this matter.\n\n. Recent resolution of the doctrinal difficulties historically present in the rights of contract beneficiaries by a shift of emphasis from “duty” to “intention” calls for a relaxation of the strict rule of Spires v. Hanover Fire Insurance Co., 364 Pa. 52, 70 A.2d 828 (1950).\n\n\n. I do not accept the implicit suggestion of the Chief Justice that there was no claim by the decedent in view of the ambulatory nature of a testamentary document prior to the death of the testator. The contract upon which the obligation arises required the scrivener to fulfill the intention of the testator expressed to him at the time of the drafting. The fact that the testator could subsequently change the proposed testamentary disposition is of no moment. The scrivener’s obligation was to provide that which he undertook to do and the failure to do so constituted the breach which justified the recovery.\n\n", "ocr": false, "opinion_id": 9636289 }, { "author_str": "Larsen", "per_curiam": false, "type": "035concurrenceinpart", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nLARSEN, Justice,\nconcurring and dissenting.\nI join Mr. Justice Hutchinson’s reasoning and disposition of the contract recovery theory. I also join Mr. Justice McDermott’s reasoning and proposed disposition under the tort theory.\n", "ocr": false, "opinion_id": 9636290 }, { "author_str": "Roberts", "per_curiam": false, "type": "040dissent", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nROBERTS, Chief Justice,\ndissenting.\nAlthough I agree with the majority that appellee’s complaint fails to state a cause of action in trespass, I do not agree that appellee has a cognizable cause of action in assumpsit. Hence I dissent.\nAppellee’s complaint alleges that, “in exchange for valuable consideration,” appellant agreed with decedent Kent that appellant would draft a will naming appellee as the executrix and the residuary beneficiary of decedent’s estate. Such a will was prepared by appellant and executed by 65decedent on February 24, 1957. Kent died on October 12, 1972. On March 29, 1974, a New Jersey probate court upheld a challenge to the proposed distribution of real property to appellee on the ground that appellee had signed the will as an attesting witness. See N.J.StatAnn. §§ 3A:3-6 & 3A:3-7. The present action was commenced on January 23, 1976, nineteen years after the execution of the will, and more than three years after the death of decedent. Appellee died in December of 1978, and the present action is being pursued by the executor of her estate.\nThe majority concludes that appellee had a right, as an intended “third-party beneficiary,” to insist on the fulfillment of “the intent of the testator to benefit the legatee.” This conclusion, however, ignores the fact that appellee could not have placed justifiable reliance upon the testamentary wishes of decedent either before or after his death, a critical factor under third-party beneficiary law. See Restatement (Second) of Contracts § 311(3) (1981). At no time during decedent Kent’s life could appellee have bound decedent to the wishes expressed in his 1957 will. As decedent was under no contractual obligation to make a will which named appellee as a beneficiary, decedent was thus free to change his testamentary intent until the day he died. See, e.g., Imhruglia Estate, 479 Pa. 95, 387 A.2d 851 (1978). Even at decedent’s death appellee was in no position to rely on a will naming her as beneficiary, for appellee could have no valid claim to decedent’s estate until the completion of probate proceedings. Once the bequest was deemed invalid, appellee eould have at most hoped for relief on an appeal, an option which she did not pursue.\nEven more important, the majority’s conclusion ignores the fact that, under third-party beneficiary law, the issue is not the fulfillment of the “intent of the testator”; rather, it is the enforceability, by a third party, of the intent of the parties to the contract. See Restatement (Second) of Contracts, supra, at § 302(1). Here, the record is clear that appellant and decedent did not intend that appellant would render services to appellee; the sole promise which appellant 66made to decedent was to write decedent’s will, a promise which appellant performed.\nAlthough appellant fairly may be charged with having impliedly promised decedent that the execution of the will would be conducted in a manner that would not result in the nullification of the bequest to appellee, decedent’s relief for a breach of such a promise would have been either a new, properly executed will or the cost of having such a will prepared. Moreover, decedent would have been obliged to seek relief within four or six years of the execution of the will, depending upon whether the contract was oral or written. See 42 Pa.C.S. §§ 5523(3) & 5527(2). Clearly decedent could not have claimed that relief could be sought by his estate after his death, fifteen years after the execution of the will. Nor, of course, could decedent’s estate have claimed that it was in any respect entitled to the value of the failed bequest.\nAppellee’s demand for far greater relief than that which would have been available to decedent makes it clear that what appellee is seeking to enforce is, in fact, not a promise made between appellant and decedent under the law of contracts, but rather an alleged duty owed by appellant directly to appellee under the law of torts. Having properly refused to recognize such a duty in a cause of action in trespass, the majority has offered no logical basis for its imposition of a similar duty as a purported application of third-party beneficiary law.\nThe order of the Superior Court should be reversed and the order of the Court of Common Pleas of Bucks County dismissing appellee’s complaint reinstated.\n", "ocr": false, "opinion_id": 9636291 }, { "author_str": "McDERMOTT", "per_curiam": false, "type": "040dissent", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nMcDERMOTT, Justice,\ndissenting.\nA third party beneficiary is one intended to be benefited by an exchange of promises between a promisor and promisee. It is a journey into artifice to say, that an attorney scrivener of a will makes any promise to benefit a legatee of the will he writes for another.\nThe majority, anxious to formulate apotropaic remedies for future ills, has transcended the explicit issue of the 67instant case. Instead of addressing the question of a lawyer’s duty to a known, designated legatee of a will, who has acted in reliance on the attorney’s advice, and prescribing a remedy for the negligent performance thereof, they are off defending the rapidly eroding doctrine of privity.\nRecent commentary1 and case law from other jurisdictions, clearly indicate that the continued existence of privity as a defense to an action in negligence is on very thin ice. This is particularly true in the case of a legatee who has been deprived of taking under a negligently drafted will. See Fickett v. Superior Court, 27 Ariz.App. 793, 558 P.2d 988 (1976); McAbee v. Edwards, 340 So.2d 1167 (Fla.Dist.Ct. App.1976); Licata v. Spector, 26 Conn.Sup. 378, 225 A.2d 28 (1966); Lucas v. Hamm, 56 Cal.2d 583, 364 P.2d 685, 15 Cal.Rptr. 821; Ross v. Caunters, (1980) 2 Q.B. 297, (1979) 3 W.L.R. 605 (1979) 3 All.E.R. 580. See also, Malen and Levitt, Legal Malpractice, § 79 at 153, (West Publishing Co.1981).\nIndeed this Court in the seminal case of Lawall v. Croman, 180 Pa. 532, 37 A. 98 (1897) refused to apply the privity doctrine where to do so would immunize an attorney from a clear breach of duty to a known third party.\nIn Lawall the plaintiff had lent money to a borrower in return for a mortgage note. The plaintiff had been advised by the borrower’s attorney that she would hold a first lien as a security for the loan. She later discovered that rather than a first lien, she received a third lien which was essentially worthless. There was no evidence that the borrowers’ attorney acted wrongfully but clearly he had acted negligently in that he had failed to check the lien dockets. This 68negligence was compounded by the fact that the attorney had repeatedly assured the plaintiff that he had done so, and that she had clearly relied on his assurances in deciding to lend the money. Although plaintiff testified that she had never hired the defendant as her attorney, the court found that the attorney was acting to some extent on behalf of the plaintiff.\nThe Lawall Court held that the grant of a nonsuit based on the mere form of the relationship was improper; and that: “[Independent of the relation of attorney and client, .. . [if] defendant, knowing that plaintiff was relying on him in his professional capacity . . ., undertook to perform [a] duty, he was bound to do it with ordinary skill and care in his profession, and [he] would be liable for negligence in that respect.” Id. 180 Pa. at 540, 37 A. at 99.\nThis case presents an opportunity for this Court to establish a rule of sound principle and ample precedent, to wit: that where through the negligence of a lawyer scrivener of a will, a known designated beneficiary loses a legacy, the lawyer must answer in damages. Such a rule would obviate the need for employing a legal fiction, such as the majority’s reliance on third party beneficiary theory and, contrary to the fear of the majority, requires no factitious formulae. The formula is simple: a duty breached is a tort, and the remedy exists in an action in trespass.\nFinally, I find it somewhat anomalous that the majority has embraced the policy concerns expressed in Ultramares v. Touche, 255 N.Y. 170, 174 N.E. 441 (1931), since the Court of Appeals of New York has held that those policies are inapplicable where the negligence of a professional is directed to a “known” third party. White v. Guarente, 43 N.Y.2d 356, 401 N.Y.S.2d 474, 372 N.E.2d 315 (1977). In fact, New York courts have recently demonstrated a willingness to adopt a more modern approach. See Baer v. Broder, 106 Misc.2d 929, 436 N.Y.S.2d 693 (1981), aff’d. on other grounds 86 App.Div.2d 881, 447 N.Y.S.2d 538 (1982); Schwartz v. Greenfield, Stein and Weisinger, 90 Misc.2d 882, 396 N.Y.S.2d 582 (1977).\nI agree with the Superior Court.\n\n. See e.g. Probert, Hendricks, Lawyer Malpractice: Duty Relationship Beyond Contract, 55 Notre Dame Law 708 (1980); Legal Malpractice in Estate Planning — Perilous Times Ahead for the Practitioner, 67 Iowa L.Rev. 629 (May 1982); Note, Attorneys Negligence and Third Parties, 57 N.Y.U.L.Rev. 126 (April 1982); Attorney Negligence in Title Examinations and Will Drafting: Elimination of the Privity Requirement as a Bar to Recovery hy Foreseeable Third Parties, 17 New Eng.L.Rev. 955 (1981-82). See also, Note, Guy v. Liederbach: Expanding the Attorneys’ Duties Beyond the Limits of the Privity Requirement, 11 Cap.U.L.Rev. 643 (Spring 1982).\n\n", "ocr": false, "opinion_id": 9636292 } ]	Supreme Court of Pennsylvania	Supreme Court of Pennsylvania	S	Pennsylvania, PA
1,116,874	Hawkins, P.J., and Prather and Robertson	1990-11-07	false	young-v-jackson	Young	Young v. Jackson	null	null	null	null	null	null	null	null	null	null	null	null	36	Published	null	null	[ "572 So. 2d 378" ]	[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n572 So. 2d 378 (1990)\nBetty Dee YOUNG\nv.\nJerome JACKSON, Individually and in his Capacity as an Employee of Bechtel Construction, Inc.; Elbert Wilson, Individually and in his Capacity as an Employee of Mississippi Power & Light Company; Bechtel Construction, Inc.; and Mississippi Power & Light Company.\nNo. 89-CA-0249.\nSupreme Court of Mississippi.\nNovember 7, 1990.\nRehearing Denied December 19, 1990.\n379 Everett T. Sanders, Natchez, for appellant.\nRoy A. Smith Jr., Holly R. Ratcliff, Daniel Coker Horton & Bell, Jackson, Edward C. Cohen, Natie P. Caraway, Wise Carter Child & Caraway, Jackson, for appellees.\nBefore HAWKINS, P.J., and PRATHER and ROBERTSON, JJ.\nROBERTSON, Justice, for the Court:\n\nI.\nThis is yet another action arising out of the operations of the Grand Gulf Nuclear Power Station in Claiborne County, Mississippi.[1] This invasion of privacy action arises from a public disclosure of private facts and turns on whether the Defendants exceeded the limits of their privilege to allay employee fears of unanticipated contamination hazards. The Circuit Court 380 held Defendants' actions privileged and summarily dismissed Plaintiff's suit. For the reasons set forth below, we affirm.\n\nII.\n\nA.\nBetty Dee Young lives in Fayette, Mississippi, in Claiborne County and in September of 1986 was employed as a decontamination laborer by Bechtel Construction, Inc., general contractor at Grand Gulf.[2] On the evening of September 21, 1986, Young and two other employees were working in a highly contaminated area. Each was wearing the requisite protective gear, \"PC\" suits and respirators. After ascending two flights of stairs, Young told her co-workers \"... that [she] I was feeling faint and hot.\" One of them told her to sit down and that he would help her out of the outer layer of her radiation protection suit. Young lost consciousness and later said, \"I don't remember anything [after that, until] we was halfway to the [Port Gibson] hospital.\"\nIt seems that earlier that year, Young's gynecologist had diagnosed her as suffering from a fibroid tumor and on July 10, 1986, four days after Young's thirty-third birthday, she entered the Jefferson Davis Hospital in Natchez, where Dr. Thomas Purvis performed a partial hysterectomy. This surgery greatly upset Young, in the sense that, in her words, \"I'm half a woman now.\" She said she never told her husband of the nature of the surgery nor, insofar as the record reflects, had she told anyone at the power station.\nReturning to September 21, Young remained in the Port Gibson Hospital overnight and upon her release the next morning, she says she received a telephone call from Jerome Jackson, a friend who was one her co-workers with Bechtel. According to Young,\nI asked him what did he want. He said, \"I need to know what kind of surgery did you have.\" I said, \"Why do you need to know that?\" He said, \"NRC [Nuclear Regulatory Commission] and the safety man from Bechtel, Bill Lewis, needs to put it in your folder.\" I said, \"Jerome,\" I said, \"It's a personal operation I had. I don't want nobody to know.\" He said, \"Won't nobody know but NRC and the safety man.\" So NRC would know Betty Young as a number. So I told him, \"Please don't tell nobody. My husband don't know, and I don't want nobody to know it.\" And he told me that he wouldn't. He gave me his word that he wouldn't tell nobody, but the safety man and NRC. And he asked me what kind of operation again. And I said, \"Jerome, you got to give me your word that you won't tell nobody.\" And he gave me his word, and I trust Jerome when he told me that. And the way he said it, that if I didn't tell him, I was going to lose my job. So I told him. I said a partial hysterectomy. He asked me how to spell hysterectomy, and I told him. He said, \"Well, they'll know how to spell it.\" And he said, \"Well, okay, I hope you feel better and be soon to come back to work.\"\nJerome Jackson tells a somewhat different story of how he came to know of Young's hysterectomy.[3] Jackson remembers that he visited Young either a couple of days or the day after the accident while she was hospitalized at the Jefferson County Hospital. Jackson and Young exchanged greetings, and Jackson said \"Betty, everybody was pretty near worried about what really went on. The employees was asking me all types of questions. They was scared.\" Jackson says Young replied \"Oh, Jerome, ain't nothing to worry about. I just got fainty sick from my operation.\" Young then related to Jackson that she had recently had a hysterectomy. Jackson does not recall saying anything about the Nuclear Regulatory Commission.\nThe record reflects that word spread quickly throughout Grand Gulf that Young had collapsed and had to be taken to the hospital. Without accepting Mississippi 381 Power & Light's characterization of the situation as a state of near hysteria, it is apparent that substantial rumors were afoot that Young was a victim of radiation and that many employees were worried whether they might be at risk as well. In this context, Jackson, a Bechtel employee, told Elbert (Bud) Wilson, one of his supervisors and an MP & L employee, that there wasn't anything to worry about because Young had passed out because of after-effects from her hysterectomy.\nAfter lunch that day, Wilson called together all of the people that worked under him, all Young's co-workers, in the hope of squelching the rumors. Wilson told the workers that Young was fine as far as he knew, that she had received 200 millirems of radiation in the hair on her head, that the hospital had cut out the irradiated part of her hair, but that her hospitalization really had nothing to do with the radiation exposure but, instead, was related to a recent hysterectomy operation she had had \"two to three weeks before.\"[4]\nMeanwhile, Young was suffering from nausea and diarrhea and sought treatment at the Jefferson County Hospital in Fayette. That same day she was transferred to the Vicksburg Hospital where she remained through September 27, 1986. While she was in the Vicksburg Hospital, Young's sister, Margaret Alexander, told her that Elbert Wilson had informed Young's co-workers that she had had a hysterectomy approximately two weeks prior to the accident.\nSubsequent to her discharge from the Vicksburg Hospital, Young was again hospitalized, this time at the Jefferson County Hospital from September 30, 1986, through October 11, 1986, where she was treated for post-radiation exposure, nausea, vomiting, diarrhea, cephalgia, and dehydration. Jackson visited Young on October 3, 1986, while she was hospitalized at the Jefferson County Hospital.\n\nB.\nOn September 25, 1987, Young commenced the present civil action by filing her complaint in the Circuit Court of Claiborne County, Mississippi. Young named as Defendants Jerome Jackson, individually, and Bechtel Construction, Inc., his employer, Elbert Wilson, individually, and Mississippi Power & Light Company, his employer. Young claimed that she had a legally protected right to keep completely private the fact of her partial hysterectomy and that the Defendants had invaded that right and had disseminated information of her surgery, by reason of which Young claimed she had \"suffered extreme humiliation and embarrassment and has suffered severe emotional distress.\"\nIn due course the Defendants answered, admitting their disclosure of the fact of Young's partial hysterectomy but defending, inter alia, on grounds that Mississippi law afforded them a privilege to do so and that they did not exceed the scope of the privilege. Extensive discovery followed via interrogatories and depositions. Thereafter, all Defendants moved for summary judgment and on February 1, 1989, the Circuit Court granted the motions and dismissed Young's complaint with prejudice. The Court held that with respect to the qualified privilege defenses there were no genuine issues of material fact and that the Defendants were entitled to judgment as a matter of law.\nYoung now appeals to this Court.\n\nIII.\nThe positive law of this state affords each person a substantial zone of freedom which, at his election, he may keep private. The zone surrounds person and place and without his consent may not be invaded by other persons, Deaton v. Delta Democrat Publishing Co., 326 So. 2d 471, 473 (Miss. 1976), or by the state, In Re Brown, 478 So. 2d 1033, 1039-40 (Miss. 1985). We have made no effort to identify the outer limits of a person's right of privacy and certainly make none here. Suffice it to say that where, as here, the invasion is 382 by private parties, we have recognized a right of action in at least three contexts: (1) the portrayal of Plaintiff in a false light, Prescott v. Bay St. Louis Newspapers, Inc., 497 So. 2d 77, 79 (Miss. 1986); (2) appropriation of Plaintiff's likeness and unpermitted use, Candebat v. Flanagan, 487 So. 2d 207, 209 (Miss. 1986); and (3) public disclosure of private facts, Deaton v. Delta Democrat Publishing Co., 326 So.2d at 473. It is this latter theorum that Betty Young invokes, and we accept its more precise statement in Restatement (Second) of Torts § 652D (1977):\nOne who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that\n(a) would be highly offensive to a reasonable person, and\n(b) is not of legitimate concern to the public.\nYoung claims the fact that she had undergone the surgical operation known as a partial hysterectomy was a private fact and that she had the right to keep that fact private, and that no one had the right to disclose that fact to the public.\nMP & L responds that an action for invasion of privacy does not lie on these facts. We are told the right protects persons only from public disclosures that would be \"highly offensive ... to a reasonable ... woman.\" No doubt an objective test obtains. A person may not be held liable for public disclosure of facts about another unless he should reasonably have foreseen that the person would be likely offended. It requires little awareness of personal prejudice and human nature to know that, generally speaking, no aspects of life is more personal and private than those having to do with one's sexual organs and reproductive system. It may be the fact that many women who have undergone a hysterectomy do not keep that fact secret, but this is not the test. We do not regard it unreasonable that a woman would consider the fact a private matter, nor unforseeable that she would so consider it.\nWithout further ado, we hold that the fact that she has undergone a hysterectomy is a fact that a woman ordinarily has the right to keep private if she wishes and that public disclosure of that fact by unauthorized persons and without her consent may be actionable.\n\nIV.\nThe Circuit Court did not hold Young stated no claim but rather that, in the present state of the record, Defendants' qualified privilege defense prevailed as a matter of law. The defense of qualified privilege has long been accepted in our law of defamation, but we have had no occasion to consider it in an invasion of privacy context. The settings are certainly analogous. For example, we have recognized that the one-year statute of limitations applies in invasion of privacy actions, the same as in actions for libel or slander. City of Mound Bayou v. Johnson, 562 So. 2d 1212, 1219 n. 7 (Miss. 1990); see also, Andrews v. GAB Business Services, Inc., 443 F. Supp. 510, 513 (N.D.Miss. 1977). In the present privacy context as well, we think it \"more important that information should be given freely, than that a man should be protected from what under other circumstances would be an actionable wrong.\"[5] In their seminal article, Samuel Warren and (then lawyer) Louis D. Brandeis wrote\nThe right to privacy does not prohibit the communication of any matter, though in its nature private, when the publication is made under circumstances which would render it a privileged communication according to the law of slander and libel.[6]\nIn quite similar language the Supreme Court of Kansas has stated:\n[C]ommunication or publication of a matter even of a private nature made, under circumstances which would render it a privileged communication according to 383 the law of libel and slander, will not support an action... .\nSenogles v. Security Benefit Life Ins. Co., 217 Kan. 438, 536 P.2d 1358, 1361-62 (1975). We hold that actions for invasion of privacy are subject to the defense of privilege the same as defamation actions. See Prosser and Keeton on The Law of Torts § 117, at 868 & supp. 123 (5th ed. 1984); and Restatement (Second) of Torts, §§ 652F and 652G (1977).\nTurning to the contours of the qualified privilege defense as it has evolved in the law of defamation, we can improve little on this Court's early statement:\nA communication made in good faith and on a subject-matter in which the person making it has an interest, or in reference to which he has a duty, is privileged if made to a person or persons having a corresponding interest or duty, even though it contains matter which without this privilege would be slanderous ... There are certain occasions on which a man is entitled to state what he believes to be the truth about another, and in doing so public policy requires that he shall be protected, provided he makes the statement honestly and not for any indirect or wrong motive. Such occasions are called occasions of qualified privilege, for the reason that the protection is not absolute, but depends entirely upon the honesty of purpose with which the statement is made. Among such statements is one made on a subject-matter in which the person making it, and the person to whom it is made, have a legitimate common interest. [Citation omitted] The underling principle is public policy.\nLouisiana Oil Corp. v. Renno, 173 Miss. 609, 618-19, 157 So. 705, 708 (1934).\nSpecifically, this Court has recognized that a public policy reason of the sort Louisiana Oil contemplates exists in the context of the employer/employee relationship. Staheli v. Smith, 548 So. 2d 1299, 1305 (Miss. 1989); Holland v. Kennedy, 548 So. 2d 982, 987 (Miss. 1989); Bush v. Mullen, 478 So. 2d 313, 314 (Miss. 1985); Hayden v. Foryt, 407 So. 2d 535, 536 (Miss. 1981); Benson v. Hall, 339 So. 2d 570, 572 (Miss. 1976); Killebrew v. Jackson City Lines, 225 Miss. 84, 82 So. 2d 648, 649-50 (1955); Gardner v. Standard Oil Co., 179 Miss. 176, 175 So. 203, 205 (1937); Louisiana Oil, 173 Miss. at 619, 157 So. at 707-08. Today's case arises in such an employer/employee context, and the statements concerning Young's hysterectomy were made against the backdrop of that relationship. The work at Grand Gulf was disrupted by rumors concerning Young's accident. Young's co-workers were concerned for her welfare, but for their own as well. Disclosing the true facts of Young's operation could reasonably have been seen likely to allay the fears of her co-workers of excessive levels of radiation present in the areas in which they worked.\nThe limitations of the employer/employee qualified privilege were delineated in Bush v. Mullen, 478 So. 2d 313 (Miss. 1985).\n[This privilege] is restricted both as to scope of and motivation for the communication. In Hooks v. McCall, 272 So. 2d 925 (Miss. 1973), this Court held that \"a qualified privilege exists between those directly interested in the same manner and in the absence of malice, no cause of action lies.\" [Hooks, 272 So.2d at 927.] In Benson v. Hall, 339 So. 2d 570 (Miss. 1976), the Court, relying on Killebrew, held \"When qualified privilege is established, statements or written communications are not actionable as slanderous or libelous absent bad faith or malice if the communications are limited to those persons who have a legitimate and direct interest in the subject matter.\" [Benson, 339 So.2d at 573.] Further, the opinion stated that \"If publication is made to persons outside the circle those not having a legitimate and direct interest in the subject matter of the communication the protection of the privilege may not be invoked.\" Id. (emphasis added).\nBush, 478 So.2d at 314; see also Staheli, 548 So.2d at 1305-06; Holland, 548 So.2d at 987; Hayden, 407 So.2d at 536.\nIn considering whether this privilege has been exceeded, we must confront the fact that the Circuit Court decided the 384 question summarily. This Court reviews such rulings de novo, applying the same standards as the trial court was obliged to apply. Huff v. Hobgood, 549 So. 2d 951, 953 (Miss. 1989); Short v. Columbus Ruber and Gasket Co., 535 So. 2d 61, 63 (Miss. 1988); Pearl River County Bd. of Supervisors v. Southeast Collections Agency, Inc., 459 So. 2d 783, 785 (Miss. 1984). To obtain summary judgment these Defendants, as Movants and affirmative pleaders of the defense of qualified privilege, were obligated to show that there were no genuine issues of material fact and that there were entitled to judgment as a matter of law. Rule 56, Miss.R.Civ.P. The question in the end is like any other question presented via Rule 56. If the material facts are disputed, the motion must be denied and the case proceed. If the material facts are without dispute the court may act summarily, a point we recognized in an analogous context years ago.\nThe question of privilege is for the court on a given state of facts; if the facts are undisputed, the court decides the question and instructs the jury peremptorily; if the facts are disputed, the court submits the question to the jury to determine whether the necessary facts existed. [citations omitted]\nLouisiana Oil Corp. v. Renno, 173 Miss. at 619, 157 So. at 708. See also Staheli v. Smith, 548 So. 2d 1299, 1306 (Miss. 1989).\nThe record reflects without contradiction that Jackson told three persons of the fact of Young's hysterectomy. These are:\n(1) Elbert Wilson, his co-defendant who, though an employee of MP & L, was Jackson's supervisor\n(2) Bill Lewis, Bechtel safety director\n(3) Lynn Nolan, Bechtel project superintendent\nThe record further reflects, without contradiction, that on the morning after Jackson told him of Young's hysterectomy, Wilson convened a meeting of persons working in the area and advised them that Young's collapse and hospitalization had not been due to radiation exposure but were associated with her earlier hysterectomy. In discovery Young was asked to identify by name each person to whom this information was communicated. Young listed Roosevelt Anderson, William Whittington, DeWitt Ellis, Robert Felton, Charles Kayo, Mattie Selman, Francis Neil, Charles Short, Matt Summers, Timothy Cliburn, John Bowser, Murdtis Hicks, Lang Provance, and Jerome Jackson. The record reflects without contradiction that each of these individuals was an employee at Grand Gulf and a co-worker with Betty Young.\nOf course the mere fact that the persons Jackson and Wilson told of Young's hysterectomy worked at Grand Gulf does not in and of itself establish the defense. The occasion must be one which gives rise to the defense. The record before us reflects different persons giving differing expressions of the level of concern at Grand Gulf following Young's accident, but it is clear that there was substantial concern among some of the employees that Young's problems were related to radiation exposure and that they themselves may be in danger. The nature of radiation exposure and particularly the nature of the human fear of it are such that Defendants not only had the legal privilege but a moral duty to do what was necessary to allay anxieties.\nYoung in effect concedes as much but argues nevertheless that Defendants could have quieted worker fears by simply announcing that Young's condition was not radiation related. Young says it was not necessary that they go further and state that she had had a hysterectomy. The point called for an exercise of judgment and discretion by Jackson and Wilson and as well for us today. If Jackson and Wilson had told only that Young's condition was not radiation related, and said nothing more, the natural employee reaction would have been \"well, what was it?\" In the context of the nature of the workers' fear of radiation exposure, it seems that a \"No\" answer would have but generated further co-worker suspicions, that there was something afoot they were not being told. Prudence counselled full disclosure, and we think what Jackson and Wilson did was 385 within the realm of good judgment such that we should not judicially second guess them.\nYoung further seeks to avoid summary judgment by claiming malice on the part of Jackson and Young and, in the present setting, at least claiming that there was an issue of fact on her claim of malice. She asserts that because there are disputed facts concerning the manner in which Jackson acquired the knowledge of her hysterectomy operation, she has sufficiently adduced evidence to raise a factual question concerning malice. However, this Court's law requires a showing of actual malice:\nActual or express malice, as distinguished from malice in law, in its ordinary sense denotes ill will, a sentiment of hate or spite, especially when harbored by one person towards another, exists when one with a sedate, deliberate mind and formed design injures another, as where the person is actuated by ill will in what he does and says, with the design to willfully or wantonly injure another.\nScott-Burr Stores Corp. v. Edgar, 181 Miss. 486, 503-04, 177 So. 766, 770 (1938) (quoted in Hayden v. Foryt, 407 So. 2d 535, 539 (1982)). When we review the record, however, evidence of ill will or spite on the part of Jackson or Wilson is nowhere to be found. That summary judgment is particularly appropriate concerning the issue of malice is supported by our law that finds that one who has established the existence of a qualified privilege is cloaked with a presumption of good faith. Benson v. Hall, 339 So. 2d 570, 572 (Miss. 1976); Louisiana Oil, 173 Miss. at 620, 157 So. at 708.\nThe fact that Wilson stated that the operation was a hysterectomy, rather than a partial hysterectomy, that occurred more recently than Wilson thought, does not in any way destroy the qualified privilege. The truth or falsity of the qualifiedly privileged communication is not material as long as there is no bad faith or malice. Killebrew, 225 Miss. at 92, 82 So.2d at 650.\nIn conclusion, there is no evidence in this record that Defendants exceeded the scope of their privilege by communicating Young's private facts to persons who had no legitimate interest therein nor that any of the Defendants acted with malice toward Young. The Circuit Court correctly entered judgment summarily for Defendants dismissing Young's complaint.\nAFFIRMED.\nROY NOBLE LEE, C.J., HAWKINS, P.J., and PRATHER, ANDERSON, PITTMAN and BLASS, JJ., concur.\nSULLIVAN, J., dissents with separate written opinion joined by DAN M. LEE, P.J.\nSULLIVAN, Justice, dissenting:\nI respectfully dissent.\nJust as a man would not want his co-workers to know he had just had a testectomy, Young was mortified that her co-workers knew she recently had a partial hysterectomy. At the time the supervisor published the nature of Young's surgery to her co-workers, she had not yet had the emotional ability or courage to tell her husband. Reproductive surgeries are personal and private, and Young was justified in wanting to keep the nature of her surgery private. Though the employees were entitled to be assured Young's accident was not related to radioactive contamination, if in fact it was not, the publication in this case was excessive, unreasonable and reckless.\nI agree with the majority that the communication was made under a qualified privilege. However, I do not accept the majority's finding that because the qualified privilege was not abused and there was no evidence of malice, the trial court properly granted summary judgment. The pre-trial evidence sufficiently created issues of material fact on whether the qualified privilege was abused and whether malice could be inferred from the conduct of the defendants, and these issues should have been submitted to a jury for their determination.\nThe majority found that the qualified privilege was not lost because \"[d]isclosing the true facts of Young's operation could 386 reasonably have been seen likely to allay the fears of her co-workers of excessive levels of radiation present in the areas in which they worked,\" and \"there is no evidence in this record that Defendants exceeded the scope of their privilege by communicating Young's private facts to persons who had no legitimate interest therein nor that any of the Defendants acted with malice toward Young.\"\nA qualified privilege is not absolute. Elements requisite to uphold the qualified privilege protecting a communication are \"good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties only... .\" 50 Am.Jur.2d, Libel and Slander, § 195, pp. 698-99. (Emphasis added). 53 C.J.S. Libel and Slander, § 59 explains that \"the communication must be limited to the scope of what is necessary to uphold the interest or duty, and the publication must occur in a proper and not an excessive manner, ..., and there must be good faith and an absence of malice.\" Id. at 113. (Emphasis added).\nThus, a qualified \"privilege may be lost if it can be shown that the statements ... went beyond the subject matter or purpose of the occasion, or were excessively publicized to those... to whom the communication is not privileged.\" 53 C.J.S. § 77, p. 147. Restatement (Second) of Torts, Comment (a) § 596 also recognizes that a qualified privilege may be lost through abuse:\nThe privilege may be abused and its protection lost by the publisher's knowledge or reckless disregard as to the falsity of the defamatory matter (see §§ 600, 602); by the publication of the defamatory matter for some improper purpose (see § 603); by excessive publication (see § 604); or by the publication of defamatory matter not reasonably believed to be necessary to accomplish the purpose for which the occasion is privileged (see § 605A). (Emphasis added).\nIn our state, there exist two ways to abuse a qualified privilege: (1) \"excessive publication to persons not within the `circle' of those people who have a legitimate and direct interest in the subject matter of the communication,\" Staheli v. Smith, 548 So. 2d 1299, 1305 (Miss. 1989) (cites therein); Holland v. Kennedy, 548 So. 2d 982, 987 (Miss. 1989) (cites therein), and (2) publication beyond the scope of what is necessary. Garziano v. Du Pont De Nemours & Co., 818 F.2d 380, 391-92 (5th Cir.1987) (applying Mississippi law); Southwest Drug Stores of Miss., Inc. v. Garner, 195 So. 2d 837, 840 (Miss. 1967); McCrory Corp. v. Istre, 252 Miss. 679, 173 So. 2d 640, 646 (1965); Montgomery Ward & Co. v. Skinner, 200 Miss. 44, 25 So. 2d 572, 577 (1946); Sumner Stores of Miss. v. Little, 187 Miss. 310, 192 So. 857, 862 (1940). In McCrory Corp. v. Istre, 252 Miss. 679, 173 So. 2d 640 (1965), we held that when a communication goes further than the interests or duties of the privilege holder require, the publisher will not be protected despite the fact \"that a duty, a common interest, or a confidential relation existed to a limited degree ..., even though he acted in good faith.\" McCrory 173 So.2d at 646 [citing 53 C.J.S. Libel and Slander § 97, p. 53 (1948)]; see also, Garziano v. E.I. Du Pont De Nemours & Co., 818 F.2d 380, 391-92 (5th Cir.1987) (applying Mississippi law) (though no cause of action in the absence of malice when a communication is made to others who have a direct and legitimate interest, qualified privilege still may be abused by excessive publication).\nRestatement (Second) of Torts, § 604 (1977) defines excessive publication as:\nOne who, upon an occasion giving rise to a conditional privilege for the publication of defamatory matter to a particular person or persons, knowingly publishes the matter to a person to whom its publication is not otherwise privileged, abuses the privilege unless he reasonably believes that the publication is a proper means of communicating the defamatory matter to the person to whom its publication is privileged. (Emphasis added).\nComment a: Ordinarily, a privilege is abused by speaking defamatory words in the presence of persons whose knowledge of them is unnecessary to the protection of the interest in question. However, this is not true when the publication 387 to those persons is reasonably incidental to the communication of the defamatory matter to the person whose knowledge is reasonably believed to be necessary or useful for the protection of the interest... . (Emphasis added).\nThe undisputed facts show that Young told her supervisor, Jackson, she did not want anyone to know of her surgery and that she had not even told her husband yet; that Young was promised by Jackson, that only the safety man and NRC would be told of her surgery; that Young did receive some radioactive contamination and returned to another hospital with nausea, vomiting and diarrhea; that Jackson told his supervisor, Bud, that he should not have told the \"craft\" that she had a hysterectomy; and that Jackson's supervisor, Bud, stated that Young's surgery really was not their [the company's] business. I agree with the majority that because the facts of this case are not in dispute that the trial court properly decided the question of privilege. Louisiana Oil Corp. v. Renno, 173 Miss. 609, 619, 157 So. 705, 708 (1934).\nHowever, these undisputed facts are sufficient to allow a jury determination of whether the defendants reasonably believed notifying Young's co-employees that she had a hysterectomy was required in order to allay their fears, whether a lesser publication would have been sufficient and whether the extensiveness of the publication was reasonably incidental to the communication. See Hartford Acc. & Indem. Co. v. Foster, 528 So. 2d 255, 285 (Miss. 1988) (undisputed facts created jury question regarding violation of attorney's fiduciary duty). Unless as a matter of law a jury could only find that the privilege was not exceeded or abused and that the publication was reasonably incidental, then these issues should have been presented to the jury. See Shutes v. Platte Chemical Co., 564 So. 2d 1382, 1384 (Miss. 1990); Winstead v. Berry, 556 So. 2d 321, 323 (Miss. 1989).\nIf the qualified privilege were found to have been abused or exceeded, only then should there be an inquiry whether the communication was published with malice. Without a showing of malice, abuse of a qualified privilege by an employer is not actionable. Staheli v. Smith, 548 So. 2d 1299, 1305 (Miss. 1989); Holland v. Kennedy, 548 So. 2d 982, 987 (Miss. 1989); Bush v. Mullen, 478 So. 2d 313, 314 (Miss. 1985) [citing Killebrew v. Jackson City Lines, 225 Miss. 84, 91-92, 82 So. 2d 648, 649-50 (1955)]; Hooks v. McCall, 272 So. 2d 925, 927 (Miss. 1973) (citing Killebrew, supra). The demonstrated malice need not be express; it also may be common law malice, i.e., spite, ill will, malicious purpose and actual malice. Garziano v. E.I. Du Pont De Nemours & Co., 818 F.2d 380, 388, fn. 13 (5th Cir.1987) (applying Miss. law); see also, Staheli v. Smith, 548 So. 2d 1299, 1305 (Miss. 1989). We also have recognized that malice may be inferred from willful and wanton disregard for the truth or falsity of defamatory words. Southwest Drug Stores of Miss., Inc. v. Garner, 195 So. 2d 837, 842 (Miss. 1967) (cite therein); Montgomery Ward & Co. v. Skinner, 200 Miss. 44, 25 So. 2d 572, 577 (1946).\nOur case law requiring a showing of malice before abuse of a qualified privilege is actionable has heretofore been applied in cases of defamation and slander, not publication of private facts. We have not previously considered whether ill will may be inferred by reckless disregard for another's rights and consequences to them. Because there may be some cases where the conduct of those abusing a qualified privilege is unreasonable and excessive, yet the conduct cannot be classed as express or actual malice, Galvin v. New York, New Haven & Hartford Ry. Co., 341 Mass. 293, 168 N.E.2d 262, 266 (1960), I would find that malice also could be inferred from the reckless disregard of Young's rights and the consequences of the publication to her. See Crump v. P & C Food Markets, Inc., 576 A.2d 441, 449 (Vt. 1990); McCone v. New England Tel. & Tel. Co., 393 Mass. 231, 471 N.E.2d 47, 51 (1984) [citing Bratt v. Int'l Bus. Machines Corp., 392 Mass. 508, 515-16, 467 N.E.2d 126, 131 (1984)]; see also, Smith v. Dist. of Columbia, 399 A.2d 213, 221 (D.C.App. 1979) [citing Ford Motor Credit Co. v. Holland, 367 A.2d 1311 (D.C.App. 1977)], (Ill will defined as 388 \"without just cause or excuse, `with such a conscious indifference or reckless disregard' of the results of his communication... .\"). To hold otherwise will allow employers to thoughtlessly and recklessly divulge their employees' personal affairs causing them humiliation and emotional turmoil.\nAs with the determination of whether the qualified privilege was abused. I find that there was evidence by which a jury could infer malice due to the reckless disregard for the plaintiff's rights. The evidence presented issues of material fact and the trial court improperly granted the motion for summary judgment. I would reverse and remand for a jury trial.\nDAN M. LEE, P.J., joins this dissent.\nNOTES\n[1] See Jim Murphy & Associates, Inc. v. LeBleu, 511 So. 2d 886, 887 (Miss. 1987).\n[2] Grand Gulf is operated by Mississippi Power and Light Company.\n[3] As will presently appear, these differences are legally immaterial.\n[4] Hospital documentation reflects that Young had her hysterectomy on July 10, 1986, some seventy-five \"days ago.\" Again this factual discrepancy is without legal effect.\n[5] Holmes, The Path of Law, 10 Harv.L.Rev. 457, 466 (1897).\n[6] S. Warren & L. Brandeis, The Right To Privacy, 4 Harv.L.Rev. 193, 216 (1890).\n\n", "ocr": false, "opinion_id": 1116874 } ]	Mississippi Supreme Court	Mississippi Supreme Court	S	Mississippi, MS
309,724	Bazelon, Per Curiam, Robinson, Wright	1973-03-20	false	jessie-mae-warren-v-albert-lopatin	null	Jessie Mae Warren v. Albert Lopatin	Jessie Mae WARREN, Appellant, v. Albert LOPATIN Et Al.	Marilyn Fisher, Washington, D. C., for appellant. Maribeth Halloran and Christine LeFlore, Washington, D. C., were on the brief for appellant., Leonard C. Collins, Washington, D. C., for appellee.	null	null	null	null	null	null	null	Argued Sept. 12, 1972.	null	null	2	Published	null	<parties id="b1401-4"> Jessie Mae WARREN, Appellant, v. Albert LOPATIN et al. </parties><br><docketnumber id="b1401-6"> No. 24710. </docketnumber><br><court id="b1401-7"> United States Court of Appeals, District of Columbia Circuit. </court><br><otherdate id="b1401-8"> Argued Sept. 12, 1972. </otherdate><br><decisiondate id="b1401-9"> Decided March 20, 1973. </decisiondate><br><attorneys id="b1401-18"> Marilyn Fisher, Washington, D. C., for appellant. Maribeth Halloran and Christine LeFlore, Washington, D. C., were on the brief for appellant. </attorneys><br><attorneys id="b1401-19"> Leonard C. Collins, Washington, D. C., for appellee. </attorneys><br><judges id="b1401-20"> Before BAZELON, Chief Judge, and WRIGHT and ROBINSON, Circuit Judges. </judges>	[ "475 F.2d 1329", "155 U.S. App. D.C. 60" ]	[ { "author_str": "Per Curiam", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/475/475.F2d.1329.24710.html", "author_id": null, "opinion_text": "475 F.2d 1329\n 155 U.S.App.D.C. 60, 12 U.C.C. Rep. Serv. (West) 298\n Jessie Mae WARREN, Appellant,v.Albert LOPATIN et al.\n No. 24710.\n United States Court of Appeals,District of Columbia Circuit.\n Argued Sept. 12, 1972.Decided March 20, 1973.\n \n Marilyn Fisher, Washington, D. C., for appellant. Maribeth Halloran and Christine LeFlore, Washington, D. C., were on the brief for appellant.\n Leonard C. Collins, Washington, D. C., for appellee.\n Before BAZELON, Chief Judge, and WRIGHT and ROBINSON, Circuit Judges.\n PER CURIAM:\n \n \n 1\n This appeal challenges a judgment of the District Court denying an injunction sought to permanently restrain the sale of appellant's home to satisfy the lien of a second deed of trust thereon.1 The deed of trust secures the payment of a negotiable promissory note in the original principal sum of $3,900 bearing interest at the rate of 6% per annum. The note is payable, as to both principal and interest, in 59 monthly installments of $39 each and a final installment at 60 months for the unpaid balance. Appellant has defaulted in timely payment of the installments, and the power of sale conferred by the deed of trust has been invoked. The District Court's judgment if left standing will, of course, allow the sale to go forward.2\n \n \n 2\n The note and deed of trust emanated from the second of two transactions by which appellant was to have received a loan of $1,000 from Northwest Mortgage Corporation. As the uncontradicted evidence demonstrated3 and the District Court found,4 appellant was duped into signing the papers calling for repayment of the much larger sum.5 Northwest subsequently negotiated the note to Howard Investment Corporation which, in turn, sold it to appellee.6\n \n \n 3\n One of the contentions advanced on appeal is the claim that appellee has not established that he is a holder in due course and consequently, that he took the note subject to two defenses to payment. One defense is presented by appellant's assertion that the note is usurious, and on that score the District Court found that in return for the $3,900 interest-bearing note, appellant received only $625.7 The other defense is erected by appellant's allegations that her execution of the note and deed of trust was obtained by fraud.8 In that connection the District Court found, as to the first transaction, that \"[t]he papers were placed rapidly in front of her for signature, one on top of the other so as to shield the contents from her view, and were snatched away after she affixed her signature so as to preclude her from reading them.\" As we read the Court's opinion,9 it was of the view that at the second transaction the treatment was not essentially different.\n \n \n 4\n The District Court held, however, that appellee was a holder in due course, and that for that reason neither of appellant's defenses could prevail. Although the court found that the note was usurious, it ruled that the illegality could not be successfully urged against such a holder. And although the court characterized appellant as \"a victim of a group of 'fast operators,\"' it further ruled that she had a reasonable opportunity to obtain knowledge of the terms of the note before signing it and, as a consequence, her fraud defense was unavailing against a holder in due course. So it was that the court's conclusion that appellee occupied that status became critical.10 And so it is that, because in the present state of the record we are unable to satisfactorily review all facets of that determination, we must remand the record to the District Court for the development of additional information.11\n \n \n 5\n The substantive and evidentiary prerequisites to holding in due course are specified by the Uniform Commercial Code.12 \"A holder in due course,\" the Code states, \"is a holder who takes the instrument (a) for value; and (b) in good faith; and (c) without notice that it is overdue or has been dishonored or of any defense against or claim to it on the part of any person.\"13 Our instant concern, of course, stems from the lack-of-notice requirement. The Code further provides that \"[a]fter it is shown that a defense exists,\" as indeed appellant did show, \"a person claiming the rights of a holder in due course has the burden of establishing that he or some person under whom he claims is in all respects a holder in due course.\"14 Two circumstances hamper our efforts to ascertain whether these standards have been met.\n \n \n 6\n The first is an apparent inconsistency in the District Court's findings as to whether the note was overdue when appellee acquired it. The court stated that \"[o]n August 10, 1966,\" appellee \"gave Howard Investment $3,080.98 for the note\" and \"ascertained that payments were current at the time of purchase. . . .\" The note stipulated, however, that installments were to be paid on the 9th of each month, and while it is clear that the installment due July 9, 1966, was paid on July 20, the record indicates that the installment due August 9 was not paid until August 12. The significance of these circumstances derives from the Code's provision that a purchaser \"has notice that an instrument is overdue if he has reason to know . . . that any part of the principal amount is overdue. . . .\"15 One of the objectives of our remand is a determination as to exactly when appellee became holder of the note and the payment status of the note at that time.\n \n \n 7\n Our second difficulty stems from the fact, evidenced by numerous references in the record, that appellee purchased the note on the recommendation of his accountant. The District Court found that there was nothing irregular in the purchase transaction that should have aroused appellee's own suspicions,16 but the probe into notice cannot end at that point. Additional questions are whether the relationship between appellee and his accountant was such that appellee was chargeable with notice of facts within the knowledge of the accountant, and whether the accountant had any information which if possessed by appellee himself would have impaired his status as a holder in due course.17\n \n \n 8\n The record shows that appellant had previously purchased another note on the accountant's advise. It indicates, too, that the accountant may have serviced the accounts of Howard Investment Corporation, appellee's vendor, and Ilene Investment Company, Howard's collection agent. That the accountant had some acquaintance with the note is evident from his recommendation that appellee buy it. Appellee cannot discharge his burden of establishing that he is a holder in due course without a satisfactory explanation of these circumstances. And should it develop that, as a result of their relationship, notice to the accountant is imputable to appellee, we are unable to perceive how the disclosure of the accountant's knowledge can be satisfactorily made without calling him as a witness in the proceeding.\n \n \n 9\n The record in this case is remanded to the District Court to enable the inquiries and determinations we have identified, and any related matters which may come to its attention. We reserve, in the meantime, our decision on the issues presented on appeal.\n \n \n 10\n So ordered.\n \n \n \n 1\n Appellant also sought, and was denied, cancellation of the deed of trust and the note which it secured\n \n \n 2\n The District Court first issued a temporary restraining order, and later a preliminary injunction, to maintain the status quo pending decision as to a permanent injunction. After denying the latter, the court enjoined foreclosure of the deed of trust pending this appeal on condition, however, that appellant keep current the indebtedness secured by the first deed of trust\n \n \n 3\n The first transaction netted $436 in cash for appellant and her note and deed of trust in the amount of $1,590 for Northwest. Appellant claims that she was given no opportunity to read the papers before signing. See text infra following note 8. When she protested to Northwest and was told that she did not receive more money because her note was not large enough, she indicated that she was willing to sign a note for as much as $2,300 to get an additional $360 which she needed. The second transaction followed, and it led to cancellation of the original papers, execution of the note and deed of trust in suit, and $189 more for appellant. When, two weeks later appellant learned of the size of her new indebtedness, Northwest's telephone had been disconnected\n \n \n 4\n See text infra following note 9\n \n \n 5\n Northwest and its principal officer were made parties to appellant's suit but process could not be served on either\n \n \n 6\n The balance then due was $3,851.23. Appellee paid $3,080.98 for the note\n \n \n 7\n See note 3, supra\n \n \n 8\n See note 3, supra\n \n \n 9\n The opinion is unpublished\n \n \n 10\n Northwest Mortgage Corporation obviously was not a holder in due course, and the District Court made no finding as to whether Howard Investment Corporation was. Therefore, it was necessary for appellee to demonstrate that he himself was a holder in due course since the record does not establish that he held through one\n \n \n 11\n Appellant urges additional grounds in support of her position that appellee is not a holder in due course. We reserve our ruling on all contentions until after completion of the remand\n \n \n 12\n D.C.Code Sec. 28:1-101 et seq. (1967)\n \n \n 13\n Uniform Commercial Code Sec. 3-302(1), D.C.Code Sec. 28:3-302(1) (1967)\n \n \n 14\n Uniform Commercial Code Sec. 3-307(3), D.C.Code Sec. 28:3-307(3) (1967)\n \n \n 15\n Uniform Commercial Code Sec. 3-304(3), D.C.Code Sec. 28:3-304(3) (1967)\n \n \n 16\n But see discussion in text following note 14\n \n \n 17\n See Uniform Commercial Code Sec. 1-103, D.C.Code Sec. 28:1-103 (1967); Bowen v. Mount Vernon Sav. Bank, 70 App.D.C. 273, 274-277, 105 F.2d 796, 797-798 (1939)\n \n \n ", "ocr": false, "opinion_id": 309724 } ]	D.C. Circuit	Court of Appeals for the D.C. Circuit	F	USA, Federal
343,383	Aldrich, Coffin, McENTEE	1977-03-11	false	united-states-v-richard-f-nutile-united-states-of-america-v-joseph	null	United States v. Richard F. Nutile, United States of America v. Joseph Indelicato	UNITED STATES of America, Appellee, v. Richard F. NUTILE, Appellant; UNITED STATES of America, Appellee, v. Joseph INDELICATO, Appellant	Barry M. Haight, Milton, Mass., with whom Buckley, Haight & Muldoon, Milton, Mass., was on brief, for appellants., Jeremiah T. O’Sullivan, Sp. Atty., Dept. of Justice, Boston, Mass., with whom James N. Gabriel, U. S. Atty., Boston, Mass., was on brief for appellee.	null	null	null	null	null	null	null	Argued Oct. 5, 1976.	null	null	3	Published	null	<parties data-order="0" data-type="parties" id="b765-9"> UNITED STATES of America, Appellee, v. Richard F. NUTILE, Appellant. UNITED STATES of America, Appellee, v. Joseph INDELICATO, Appellant. </parties><br><docketnumber data-order="1" data-type="docketnumber" id="b765-12"> Nos. 76-1192 and 76-1193. </docketnumber><br><court data-order="2" data-type="court" id="b765-13"> United States Court of Appeals, First Circuit. </court><br><otherdate data-order="3" data-type="otherdate" id="b765-15"> Argued Oct. 5, 1976. </otherdate><br><decisiondate data-order="4" data-type="decisiondate" id="b765-16"> Decided March 11, 1977. </decisiondate><br><attorneys data-order="5" data-type="attorneys" id="b766-14"> <span citation-index="1" class="star-pagination" label="702"> *702 </span> Barry M. Haight, Milton, Mass., with whom Buckley, Haight & Muldoon, Milton, Mass., was on brief, for appellants. </attorneys><br><attorneys data-order="6" data-type="attorneys" id="b766-15"> Jeremiah T. O’Sullivan, Sp. Atty., Dept. of Justice, Boston, Mass., with whom James N. Gabriel, U. S. Atty., Boston, Mass., was on brief for appellee. </attorneys><br><p data-order="7" data-type="judges" id="b766-16"> Before COFFIN, Chief Judge, ALDRICH and McENTEE, Circuit Judges. </p>	[ "550 F.2d 701" ]	[ { "author_str": "McENTEE", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/550/550.F2d.701.76-1193.76-1192.html", "author_id": null, "opinion_text": "550 F.2d 701\n UNITED STATES of America, Appellee,v.Richard F. NUTILE, Appellant.UNITED STATES of America, Appellee,v.Joseph INDELICATO, Appellant.\n Nos. 76-1192 and 76-1193.\n United States Court of Appeals,First Circuit.\n Argued Oct. 5, 1976.Decided March 11, 1977.\n \n Barry M. Haight, Milton, Mass., with whom Buckley, Haight & Muldoon, Milton, Mass., was on brief, for appellants.\n Jeremiah T. O'Sullivan, Sp. Atty., Dept. of Justice, Boston, Mass., with whom James N. Gabriel, U. S. Atty., Boston, Mass., was on brief for appellee.\n Before COFFIN, Chief Judge, ALDRICH and McENTEE, Circuit Judges.\n McENTEE, Circuit Judge.\n \n \n 1\n Appellants were convicted after a jury trial of selling and transferring counterfeit Federal Reserve Notes in violation of 18 U.S.C. §§ 473 and 2.1 This appeal raises several arguments.\n \n \n 2\n I. THE INFORMANT.\n \n \n 3\n During the trial appellants moved to dismiss the indictment on grounds that the government had failed to use due diligence in identifying or locating an informer whose testimony would allegedly be of great importance to defendants' case. See Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957); United States v. Davila Williams, 496 F.2d 378 (1st Cir. 1974). The informant, referred to interchangeably as \"John the Gypsy\" and \"John Tenney Bimbo\" first contacted the United States Secret Service in Cambridge in September, 1974. He offered to put the Secret Service in touch with purveyors of counterfeit notes and on November 12, 1974, introduced an agent to the defendant Indelicato. The evidence shows that the agent negotiated directly with Indelicato for the purchase of $100,000 in counterfeit bills. The next day Indelicato negotiated further with the agent and directed him and Bimbo to proceed to the vicinity of a store where the defendant Nutile was employed. Indelicato explained that \"My man will meet you there.\" An hour and a half later, Indelicato arrived at the designated location and informed the agent that \"My man will be here in a few minutes.\" Nutile next arrived and informed Bimbo, out of the agent's hearing, that \"the price has gone up, he wants $3,500 for $25,000 instead of $2,500.\"2 Bimbo relayed the information to the agent, who refused to pay a higher price. Finally, the counterfeit funds were sold to the agent and the arrests of Indelicato and Nutile followed. Bimbo was paid $1,000 by the Secret Service for his assistance.\n \n \n 4\n During his time of assistance to the Secret Service in 1974, Bimbo identified himself orally to agents as \"the Gypsy\" and \"John Tenney Bimbo.\" He also produced a driver's license which contained what was subsequently discovered to be a false address.3 Bimbo gave an agent a telephone number at which he could be reached. However, when the agent telephoned this number during the fall of 1974, an otherwise uncommunicative female voice told him to stop attempting to reach Bimbo at that number. The government also checked under the name \"John Tenney Bimbo\" for an arrest record but did not fingerprint him.\n \n \n 5\n In response to a pre-trial motion for identification of the informant, the government provided appellants with the name \"John Tini Bimbo\" (sic ) and the telephone number at which the agent had been unable to reach Bimbo.\n \n \n 6\n In May, 1975, the government arrested Bimbo on a material witness warrant. He was released by a magistrate on bail. Several weeks later, at a hearing on defendants' motions to suppress evidence, the government announced that it had just learned that Bimbo had been committed to a mental hospital. Subsequent investigation revealed that Bimbo had left the hospital and that the address he listed on hospital records was false. The government obtained a new arrest warrant and placed his alleged address under surveillance. An agent testified that he searched for Bimbo on twenty occasions. Bimbo was never found.\n \n \n 7\n In United States v. Davila Williams, supra, we set out the standard of reasonableness controlling the government's efforts to identify and produce informants:\n \n \n 8\n \"(T)he government's duty under Roviaro to produce names and addresses requires it to produce correct information or at least to have exercised diligence reasonable under the circumstances to locate the informer. It would be serious misconduct for the government intentionally to withhold or to falsify the Roviaro information. How far it must go to keep track of, or search for, an informer is less easily stated; that depends on many factors including the extent of the government's control over the witness, the importance of the witness' testimony, the difficulty in finding him, and similar matters . . . (S)hould an informer disappear or become unavailable to the defense, we would compel the government, upon timely demand either to locate him or make an affirmative showing satisfactory to the court why it could not reasonably be expected to do so and of its diligence generally as regards the disappearance.\" 496 F.2d at 382.\n \n \n 9\n We think that the government partially fulfilled its Roviaro duty to identify the informant. The informer consistently gave his name as \"John Tenney (or Tini) Bimbo\" and we have no basis for doubting that this is his name. Appellants' assertions to the contrary are wholly speculative. And the provision of the only telephone number at which Bimbo could be reached went part of the way toward fulfilling the government's duty to inform appellants of his address.\n \n \n 10\n Nevertheless, the government was unable accurately to identify the whereabouts of its informer and we therefore inquire in light of United States v. Davila Williams, supra, as to the adequacy of its efforts to locate Bimbo. We acknowledge that the informer's testimony was likely to be of critical importance to the case against Nutile. Only Bimbo among the government's potential witnesses spoke with Nutile about the delivery of the packet and only he could give direct evidence on Nutile's knowledge and intent.4 Even recognizing the importance of Bimbo's testimony, we think that the government's efforts to identify and locate Bimbo were at all times sufficiently diligent and reasonable to pass muster under Roviaro and Davila Williams. After doing as much as it could to identify Bimbo for the defendants, the government procured Bimbo's arrest as a material witness. His subsequent release on bail and disappearance were certainly not attributable to the government. And we have no basis for disbelieving the testimony of several Secret Service agents that an intensive search was thereafter conducted.\n \n \n 11\n Appellants, however, would have us require of the government a level of diligence in keeping track of informers which approaches its zeal in uncovering criminal activity. We are mindful, however, that \"(t)he problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense.\" Roviaro v. United States, supra, 353 U.S. at 62, 77 S. Ct. at 629. We think that the \"flow of information\" in this case might have been abruptly shut off if Bimbo had been subjected to the fingerprinting and photographing which appellants suggest was necessary to provide fuller identification of Bimbo. We also think that it is highly speculative that such tactics would have resulted in a more accurate identification of Bimbo. Particularly in view of his insistence on dealing with the Secret Service on his own terms, we think that the government's actions in attempting to identify and locate him were all that was reasonably required. We hasten to add, however, that each case dealing with a disappearing informant must be decided on its own facts. In another case where a less substantial showing of good faith and due diligence on the government's part is made, we may be compelled under Roviaro and Davila Williams, supra, to reverse.\n \n \n 12\n II. SUFFICIENCY OF THE EVIDENCE.\n \n \n 13\n We also reject appellant Nutile's argument that there was insufficient evidence introduced for the jury to have found that he transferred the package containing the counterfeit notes with knowledge of its true contents. The evidence shows that Nutile traveled to Cambridge and retrieved a package from the bay area of a filling station. He then placed the small package in the trunk of his car. We think that the jury could infer that he was concealing the package and hence had guilty knowledge of its contents. An inference that Nutile had knowledge of the contraband character of the packet's contents may be drawn from his statement to Bimbo that the price had gone up from $2,500 to $3,500. Finally, the jury might legitimately infer guilty knowledge from Nutile's rapid disappearance from the scene as Secret Service agents closed in. Considering, these inferences together, it was reasonable for the jury to conclude that Nutile was acting as a courier for Indelicato and that he had knowledge of the contents of the package.\n \n \n 14\n III. HEARSAY.\n \n \n 15\n Appellant Nutile argues lastly that the trial judge erroneously admitted as against him the Secret Service agent's testimony that Indelicato, just prior to Nutile's arrival with the counterfeited bills, said \"My man will be here in a few minutes. Just wait for him here.\"\n \n \n 16\n Even if we assume that there was error in admitting this hearsay evidence, we think that it was harmless since there is no reasonable possibility that the evidence substantially contributed to Nutile's conviction. See Chapman v. California, 386 U.S. 18, 23, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967); Kotteakos v. United States, 328 U.S. 750, 764-65, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946); United States v. Kallevig, 534 F.2d 411 (1st Cir. 1976). Indelicato's statement is probative of the fact that Nutile was acting as Indelicato's agent in obtaining and delivering the contraband. However the relationship between Nutile and Indelicato was also proved by direct observation of the two together and of Nutile actually delivering the package, thus completing the transaction that Indelicato had negotiated. Indelicato's hearsay declaration is not probative of Nutile's knowledge of the contents of the packet, and so could not have been prejudicial on this critical point.5 Since the challenged statement is only probative of facts also shown by evidence properly before the jury, any error in admitting it was harmless. See United States v. Gattie, 511 F.2d 608, 611 (5th Cir. 1975); United States v. Willis, 482 F.2d 1034, 1036-37 (8th Cir. 1973). 3 Wright & Miller, Federal Practice & Procedure § 854, p. 361.\n \n \n 17\n Affirmed.\n \n \n \n 1\n The defendants were also found guilty by the jury on a count alleging conspiracy to distribute the counterfeited notes. After return of the jury's verdict, the trial judge entered a judgment of acquittal on this count. In addition, prior to the close of the trial, the judge entered a judgment of acquittal as to defendant Nutile on a third count alleging illegal possession of other counterfeit notes\n \n \n 2\n The Secret Service agent testified that Bimbo reported this conversation to him. Although of dubious admissibility, this testimony was not objected to below and its admission is not challenged on appeal\n \n \n 3\n The government at trial attempted to pursue a line of questioning exploring Bimbo's provision of a false address to the Secret Service. Counsel for defendant Nutile objected to admission of hearsay statements of Bimbo on this subject. The objection was sustained, and the government dropped this line of questioning\n \n \n 4\n We think that Bimbo's testimony was likely of far less import to Indelicato. The transactions incriminating with respect to Indelicato occurred between Indelicato and a Secret Service agent who testified at trial. Bimbo's role in these transactions was secondary at most and there is no hint in the record of any viable basis for an entrapment defense about which Bimbo could have testified. See United States v. DeJesus Boria, 518 F.2d 368, 373 (1st Cir. 1975). It is true that Indelicato's unsuccessful motion to suppress certain wiretap evidence was predicated on the argument that Bimbo's permission to record his telephone conversations was coerced. However, Bimbo's unavailability was not ultimately prejudicial on this point since the government did not introduce any wiretap evidence at trial\n \n \n 5\n We also think that the possibility of prejudice was minimized by the trial judge's careful instructions to the jury which isolated knowledge as an element of the offense charged and made it clear that the government was required to prove each element beyond a reasonable doubt\n \n \n ", "ocr": false, "opinion_id": 343383 } ]	First Circuit	Court of Appeals for the First Circuit	F	USA, Federal
1,499,128	Arceneaux	1986-10-02	false	ducre-v-mine-safety-appliances-co	Ducre	Ducre v. Mine Safety Appliances Co.	Julius DUCRE v. MINE SAFETY APPLIANCES CO., Et Al.	Bendana & Carlton, Orlando G. Bendana, Wayne H. Carlton, Jr., New Orleans, La., for Julius Dticre., Bailey & Leininger, Leon A. Aucoin, Mark D. Kuss, Thomas J. Eppling, Metairie, La., for intervenor., Johnston & Duplass, Gary M. Zwain, Robert M. Johnston, Lawrence J. Ernst, Christovich & Kearney, New Orleans, La., for Pulmosan Safety Equipment Corp., Jones, Walker, Waechter, Poitevent, Carrere & Denegre, James L. Selman, II, New Orleans, La., for Mine Safety Appliances Co., U.S. Dept, of Justice, Phyllis Pyles, Sr., Trial Atty., Washington, D.C., Thomas L. Watons, Asst. U.S. Atty., New Orleans, La., for U.S., James L. Donovan, Metairie, La., for Transamerica Ins., William S. Marshall, Jr., Alan D. Weinberger, Hammett, Leake & Hammett, Charles Hanemann, Jr., Henderson, Hanemann & Morris, New Orleans, La., for Minnesota Min. & Mfg. Co., Felicien P. Lozes, Lozes & Lozes, Thomas E. Loehn, New Orleans, La., for Commercial Union Ins. Co., Andre J. Mouledoux, New Orleans, La., for Traders & General Ins. Co., Craig R. Nelson, Hulse, Nelson & Wanek, New Orleans, La., for American Universal Ins. Co., Clemco Industries., Yance E. Ellefson, William J. Larzelere, Jr., Anthony J. Staines, Lugenbuhl, Larzelere & Ellefson, New Orleans, La., for Robert Gardebled, Harold Halter, Richard Neyland, Mirl Halter, James Dubuisson, Codee Brogan, Joseph Norra and Calvin Luc., Sondra A. Cheek, Bogalusa, La., for L. Cunningham, M. Altmann, E. Cunningham & A. Seligman, R. Seligman, C. Smith, H. Gaines, J. Henderson., Bruce J. Borrello, Metairie, La., for Liberty Mut. Ins. Co., Emery N. Voorhies, Normann & Normann, New Orleans, La., for Fidelity & Cas. Ins. Co., Frank J. Peragine, Michael R. Daigle, New Orleans, La., for American Optical Corp., Courtenay, Forstall, Grace & Hebert, Carl J. Hebert, New Orleans, La., for Underwriters at Lloyds London., Faris, Ellis, Cutrone, & Gilmore, Gary A. Lee, New Orleans, La., for Certain Underwriters at Lloyd’s London.	null	null	null	null	null	null	null	null	null	null	12	Published	null	<parties id="b796-7"> Julius DUCRE v. MINE SAFETY APPLIANCES CO., et al. </parties><docketnumber id="AoP"> Civ. A. No. 80-4338. </docketnumber><court id="AAj"> United States District Court, E.D. Louisiana. </court><decisiondate id="Adn"> Oct. 2, 1986. </decisiondate><br><attorneys id="b797-11"> <span citation-index="1" class="star-pagination" label="709"> *709 </span> Bendana & Carlton, Orlando G. Bendana, Wayne H. Carlton, Jr., New Orleans, La., for Julius Dticre. </attorneys><br><attorneys id="b797-12"> Bailey & Leininger, Leon A. Aucoin, Mark D. Kuss, Thomas J. Eppling, Metairie, La., for intervenor. </attorneys><br><attorneys id="b797-13"> Johnston & Duplass, Gary M. Zwain, Robert M. Johnston, Lawrence J. Ernst, Christovich & Kearney, New Orleans, La., for Pulmosan Safety Equipment Corp. </attorneys><br><attorneys id="b797-14"> Jones, Walker, Waechter, Poitevent, Carrere & Denegre, James L. Selman, II, New Orleans, La., for Mine Safety Appliances Co. </attorneys><br><attorneys id="b797-15"> U.S. Dept, of Justice, Phyllis Pyles, Sr., Trial Atty., Washington, D.C., Thomas L. Watons, Asst. U.S. Atty., New Orleans, La., for U.S. </attorneys><br><attorneys id="b797-16"> James L. Donovan, Metairie, La., for Transamerica Ins. </attorneys><br><attorneys id="b797-17"> William S. Marshall, Jr., Alan D. Weinberger, Hammett, Leake <em> & </em> Hammett, Charles Hanemann, Jr., Henderson, Hanemann & Morris, New Orleans, La., for Minnesota Min. & Mfg. Co. </attorneys><br><attorneys id="b797-18"> Felicien P. Lozes, Lozes <em> & </em> Lozes, Thomas E. Loehn, New Orleans, La., for Commercial Union Ins. Co. </attorneys><br><attorneys id="b797-19"> Andre J. Mouledoux, New Orleans, La., for Traders & General Ins. Co. </attorneys><br><attorneys id="b797-20"> Craig R. Nelson, Hulse, Nelson & Wanek, New Orleans, La., for American Universal Ins. Co., Clemco Industries. </attorneys><br><attorneys id="b797-21"> Yance E. Ellefson, William J. Larzelere, Jr., Anthony J. Staines, Lugenbuhl, Larzelere & Ellefson, New Orleans, La., for Robert Gardebled, Harold Halter, Richard Neyland, Mirl Halter, James Dubuisson, Codee Brogan, Joseph Norra and Calvin Luc. </attorneys><br><attorneys id="b797-22"> Sondra A. Cheek, Bogalusa, La., for L. Cunningham, M. Altmann, E. Cunningham & A. Seligman, R. Seligman, C. Smith, H. Gaines, J. Henderson. </attorneys><br><attorneys id="b797-23"> Bruce J. Borrello, Metairie, La., for Liberty Mut. Ins. Co. </attorneys><br><attorneys id="b797-24"> Emery N. Voorhies, Normann & Normann, New Orleans, La., for Fidelity & Cas. Ins. Co. </attorneys><br><attorneys id="b797-25"> Frank J. Peragine, Michael R. Daigle, New Orleans, La., for American Optical Corp. </attorneys><br><attorneys id="b797-26"> Courtenay, Forstall, Grace & Hebert, Carl J. Hebert, New Orleans, La., for Underwriters at Lloyds London. </attorneys><br><attorneys id="b797-27"> Faris, Ellis, Cutrone, & Gilmore, Gary A. Lee, New Orleans, La., for Certain Underwriters at Lloyd’s London. </attorneys>	[ "645 F. Supp. 708" ]	[ { "author_str": "Arceneaux", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 120, "opinion_text": "\n645 F. Supp. 708 (1986)\nJulius DUCRE\nv.\nMINE SAFETY APPLIANCES CO., et al.\nCiv. A. No. 80-4338.\nUnited States District Court, E.D. Louisiana.\nOctober 2, 1986.\n709 Bendana & Carlton, Orlando G. Bendana, Wayne H. Carlton, Jr., New Orleans, La., for Julius Ducre.\nBailey & Leininger, Leon A. Aucoin, Mark D. Kuss, Thomas J. Eppling, Metairie, La., for intervenor.\nJohnston & Duplass, Gary M. Zwain, Robert M. Johnston, Lawrence J. Ernst, Christovich & Kearney, New Orleans, La., for Pulmosan Safety Equipment Corp.\nJones, Walker, Waechter, Poitevent, Carrere & Denegre, James L. Selman, II, New Orleans, La., for Mine Safety Appliances Co.\nU.S. Dept. of Justice, Phyllis Pyles, Sr., Trial Atty., Washington, D.C., Thomas L. Watons, Asst. U.S. Atty., New Orleans, La., for U.S.\nJames L. Donovan, Metairie, La., for Transamerica Ins.\nWilliam S. Marshall, Jr., Alan D. Weinberger, Hammett, Leake & Hammett, Charles Hanemann, Jr., Henderson, Hanemann & Morris, New Orleans, La., for Minnesota Min. & Mfg. Co.\nFelicien P. Lozes, Lozes & Lozes, Thomas E. Loehn, New Orleans, La., for Commercial Union Ins. Co.\nAndre J. Mouledoux, New Orleans, La., for Traders & General Ins. Co.\nCraig R. Nelson, Hulse, Nelson & Wanek, New Orleans, La., for American Universal Ins. Co., Clemco Industries.\nVance E. Ellefson, William J. Larzelere, Jr., Anthony J. Staines, Lugenbuhl, Larzelere & Ellefson, New Orleans, La., for Robert Gardebled, Harold Halter, Richard Neyland, Mirl Halter, James Dubuisson, Codee Brogan, Joseph Norra and Calvin Luc.\nSondra A. Cheek, Bogalusa, La., for L. Cunningham, M. Altmann, E. Cunningham & A. Seligman, R. Seligman, C. Smith, H. Gaines, J. Henderson.\nBruce J. Borrello, Metairie, La., for Liberty Mut. Ins. Co.\nEmery N. Voorhies, Normann & Normann, New Orleans, La., for Fidelity & Cas. Ins. Co.\nFrank J. Peragine, Michael R. Daigle, New Orleans, La., for American Optical Corp.\nCourtenay, Forstall, Grace & Hebert, Carl J. Hebert, New Orleans, La., for Underwriters at Lloyds London.\nFaris, Ellis, Cutrone, & Gilmore, Gary A. Lee, New Orleans, La., for Certain Underwriters at Lloyd's London.\n\n\n710 MEMORANDUM OPINION\nARCENEAUX, District Judge.\nBefore the Court is the motion for summary judgment of Commercial Union Insurance Company (CU), the motion for declaratory judgment of Certain Underwriters at Lloyd's, London, and other companies, and the motion for partial summary judgment of Underwriters at Lloyd's, London (collectively Lloyd's). The issue presented is the amount of insurance coverage provided by the insurance policies written by CU. Oral argument was held on September 10, 1986. At the hearing, the Court ruled that liability under the insurance policies issued by CU would be determined on a yearly basis, and that CU would be on the risk for each plaintiff asserting a claim for each policy period during which the plaintiff was exposed to silica dust. The Court did not rule as to whether CU would be liable up to the \"per person\" or the \"per occurrence\" limits, and stated that supplemental written reasons would follow. The Court now decides this issue.\n\nFACTS\nCU issued one-year general comprehensive liability policies for the executive officers of Avondale Shipyards, Inc. (Avondale) for each calendar year from 1965 through 1969, with bodily injury liability limits of $25,000 per person and $50,000 per occurrence. The policy issued for the period from January 21, 1971, through January 21, 1972 had limits of $250,000 per person and $500,000 per occurrence.[1] Lloyd's issued the excess policies of insurance during these periods.\nThe policies in effect for the calendar years of 1965 and 1966 provide bodily injury coverage, as identified in the \"occurrence endorsement,\" wherein occurrence is defined as:\n\"Occurrence\" means either an accident or a continuous or repeated exposure to conditions which results during the policy period in injury to persons or real or tangible property which is accidentally caused. All damages arising out of such exposure is substantially the same general conditions shall be considered as arising out of one occurrence.\nThe policies in effect during the calendar years 1967, 1968, 1969, and the January 21, 1971 to January 21, 1972 policy, provide that:\n\"occurrence\" means an accident, including injurious exposure to conditions, which results, during the policy period, in bodily injury or property damage neither expected nor intended from the stand-point of the insured;\nFurther, the limits of liability section states that:\n... the limit of bodily injury stated in the schedule as applicable to \"each person\" is the limit of the company's liability for all damages because of bodily injury sustained by one person as the result of any one occurrence; but subject to the above provision respecting \"each person\", the total liability of the company for all damages because of bodily injury sustained by two or more persons as the result of any one occurrence shall not exceed the limit of bodily injury liability stated in the schedule as applicable to \"each occurrence\".\nSubject to the above provisions respecting \"each person\" and \"each occurrence\", the total liability of the company for all damages because of (1) all bodily injury included within the completed operations hazard and (2) all bodily injury 711 included within the products hazard shall not exceed the limit of bodily injury liability stated in the schedule as \"aggregate\".\n * * * * \n... for the purpose of determining the limit of the company's liability, all bodily injury and property damage arising out of continuous or repeated exposure to substantially the same general conditions shall be considered as arising out of one occurrence.\nThere is no \"aggregate\" limit identified in the bodily injury liability schedules.\n\nANALYSIS\nCU moves for summary judgment that its maximum coverage per plaintiff is the amount of the policy limit contained in only one of the policies in effect during plaintiff's exposure to silica dust, i.e., $50,000 per plaintiff, if exposure occurred prior to 1970. Lloyd's seeks a ruling that CU's maximum coverage per plaintiff is equal to the per occurrence policy limit for each year CU provided coverage during plaintiff's exposure to silica. The plaintiff avers that the language in the insurance policy controls; and that CU's limit of liability per claim is the \"per person\" limit in effect for each year in which CU provided coverage.\nCU relies on the following underlined language in Insurance Company of North America v. Forty-Eight Insulations, Inc., 633 F.2d 1212, 1226 n. 28 (6th Cir.1980):\nAppellants are correct that the exposure theory we adopt has problems with \"stacking.\" From 1955 through 1977, Forty-Eight held twelve different insurance policies issued by five different companies. Eleven of these policies had aggregate limits of from $300,000 to $500,000 per occurrence. The twelfth policy had an aggregate limit of $1,000,000. The combined aggregate limit of the twelve policies is $5.6 million.\nThe problem is that if the inhalation of each asbestos fiber is deemed to be a separate \"bodily injury\", this results in the \"stacking\" of liability coverage to produce coverage that is many times $5.6 million. This amounts to giving Forty-Eight much more insurance than it paid for. The district court recognized the problem which stacking presented. The court stated:\nIn any event, no insurer should be held liable in any one case to indemnify Forty-Eight for judgment liability for more than the highest single yearly limit in a policy that existed during the period of the claimant's exposure for which judgment was obtained. 451 F.Supp. [1230] at 1243.\nWe agree with the district court. The initial exposure to asbestos fibers in any given year triggers coverage. However, under the terms of the policies, additional exposure to asbestos fibers is treated as arising out of the same occurrence. Thus, on its face, the liability of each insurer is limited to maximum amount \"per occurrence\" provided by each policy. We have no problem with the district court's extending the policy language so that each insurer would face no more liability per claim than the maximum limit it wrote during any applicable year of coverage.\nCU also cites Keene Corporation v. Insurance Company of North America, 667 F.2d 1034 (D.C.Cir.1981), which held that an asbestos-related disease should be treated as any other injury, therefore, only one policy's limits can apply to each injury of a plaintiff and the insured is entitled to select that policy. Accordingly, CU argues that initial exposure to silica dust triggers coverage, and is a single occurrence; a plaintiff is entitled to collect no more than the highest single yearly limit in a policy that existed during the period of claimant's exposure for which judgment was obtained.\nIn determining CU's maximum potential liability, this Court is compelled to follow the case of Insurance Company of North America v. Forty-Eight, Insulations, Inc., 633 F.2d 1212 (6th Cir.1980). In Ducre v. Executive Officers of Halter Marine, Inc., 752 F.2d 976, 994 (5th Cir.1985), the Fifth Circuit stated:\n\n712 However, having determined for present purposes, that Porter decided, under Louisiana law, the precise issue before us in a sufficiently similar sitting, we follow its adoption of Forty-Eight Insulations and require that the exposure theory be applied to the Commercial Union policies.\nThus, the Fifth Circuit explicitly determined that the exposure theory of liability as outlined in Forty-Eight Insulations was to be applied to the CU policies at issue. As a result this Court is required to follow Forty-Eight Insulations, instead of Keene.\nUnder the exposure theory, bodily injury occurs with every inhalation of silica. As the District Court stated in Insurance Company of North America v. Forty-Eight Insulations, Inc., 451 F. Supp. 1230, 1239 (E.D.Mich.1978),\nThe medical evidence establishes that each tiny deposit of scar-like tissue causes injury to a lung. Each such insult causing injury is an \"occurrence\" for the purpose of determining which coverage applies.\nAccordingly, the District Court hypothesized that if a plaintiff has forty years of exposure, each insurer would be obligated to indemnify Forty-Eight Insulations for 1/40 th of the judgment for each year that it provided coverage. Id. at 1243 n. 7. The Sixth Circuit affirmed the District Court's opinion, recognizing that \"[c]umulative disease cases are different from the ordinary accident or disease situation.\" Forty Eight Insulations, 633 F.2d at 1219 (emphasis in original).\nThe language relied upon by CU in Forty-Eight Insulations, that \"... under the terms of the policies, additional exposure to asbestos fibers is treated as arising out of the same occurrence,\" was written in response to the problem of stacking. Thus, if an insurance company was required to pay the \"per person\" or the \"per occurrence\" limits for each inhalation of asbestos fibers made by the plaintiff, the insurance company's liability would be infinite. To avoid the problem, therefore, the Sixth Circuit placed a limit on the liability of the insurance company, as follows:\nThus, on its face, the liability of each insurer is limited to maximum amount \"per occurrence\" provided by each policy. We have no problem with the district court's extending the policy language so that each insurer would face no more liability per claim than the maximum limit it wrote during any applicable year of coverage.\nForty-Eight Insulations, 633 F.2d at 1226 n. 28 (emphasis added).\nCU argues, based upon this excerpt, that it should be liable only up to the per occurrence limits issued in any one policy per plaintiff, even though it issued several insurance policies. However, in the context of footnote 28, the phrase, \"each insurer,\" means the insurer for any particular year of coverage. This is the only logical interpretation of the Sixth Circuit's opinion, since the quotation refers to the District Court's opinion; Footnote 7 of the District Court's opinion specifically refers to the hypothetical case where judgment is to be divided into the number of years of plaintiff's exposure. The Sixth Circuit and the District Court of Forty-Eight Insulations, determined that liability is to be pro-rated on a yearly basis over the period of a plaintiff's exposure to asbestos. Forty-Eight Insulations, 633 F.2d at 1224, 1225.[2]713 Thus, this Court concludes that liability under the CU insurance policies shall be determined on a yearly basis, and that CU is on the risk for each plaintiff asserting a claim, for each policy period during which the plaintiff was exposed to silica dust. Further, the fact that CU issued six separate contracts of insurance to Avondale, for which Avondale paid separate premiums, is an additional reason for holding that CU is on the risk for each policy issued.\nFinally, more than one CU insurance policy should be on the risk because the purported damages to the claimants arose out of more than one occurrence or event. It is inaccurate to assert that all the plaintiffs were injured by a single conditionexposure to silica dust. The conditions at Avondale's facilities giving rise to the silicosis claims were scattered and varied. The claimants were exposed to different levels of silica dust at different times, under a variety of conditions, at diverse job sites, and with different types of protection over long periods of time. Thus, it is appropriate to consider the harm visited upon each plaintiff as being a separate event, and to consider the event as occurring each year.\nThe Louisiana Supreme Court considered an insurance policy containing an \"occurrence endorsement,\" (similar to the 1965 and 1966 CU policies), in Lombard v. Sewerage and Water Board of New Orleans, 284 So. 2d 905 (La.1973). In Lombard, a single construction project caused damage to the property of numerous plaintiffs. In construing the \"occurrence endorsement,\" the court stated:\nAs a rational matter, however, it can hardly be said that this construction project lasting more than one year is a single \"occurrence\" within the contemplation of this quoted clause. Rather, we think it is more logical to view this project as a series of \"occurrences\" resulting in damages during the course of this prolonged undertaking. The word \"occurrence\" as used in the policy must be construed from the point of view of the many persons whose property was damaged. As to each of these plaintiffs, the cumulated activities causing damage should be considered as one occurrence, though the circumstances causing damage consist of a continuous or repeated exposure to conditions resulting in damage arising out of such exposure. Thus, when the separate property of each plaintiff was damaged by a series of events, one occurrence was involved insofar as each property owner was concerned. Notwithstanding, therefore, that the same causes may have operated upon several properties at the same time resulting in varying degrees of damage, it cannot be regarded as one occurrence, but the damage to each plaintiff is a separate occurrence.\n284 So.2d at 915-916. Thus, Lombard found that the construction project involved a series of \"occurrences,\" rather than a single occurrence. In the case at bar, the occurrences must be considered as arising on a yearly basis because, unlike Lombard, there is no \"prolonged undertaking.\" Rather, we are presented with separate bodily injuries to claimants allegedly arising from different construction and repair jobs. Applying Lombard to these facts, results in the conclusion that the \"occurrence\" is the alleged negligence of the Avondale executive officers in failing to disclose to the plaintiffs that breathing in silica dust could be hazardous, and in allegedly failing to maintain proper working conditions. This \"occurrence\" should be construed from the viewpoint of each of the plaintiffs. To avoid the problems of \"stacking,\" the \"occurrence\" is considered as arising on a yearly basis, instead of each day the plaintiff reported to work, or each breath taken by the plaintiff, or according to some other method. In Lombard, as to each plaintiff, the property damage occurred when only one policy was at risk. In the case at bar, the various plaintiffs' exposure to silica dust occurred over a period of several years, and at varying job sites. Thus, more than one CU policy was 714 at risk during the years of exposure, and is available to provide coverage.\nAccordingly, if a plaintiff prevails, this Court shall allocate liability on a per year basis. The amount of the judgment shall be divided into the total number of years of a plaintiff's exposure, to obtain a judgment amount per year.\nThe remaining issue is whether CU is liable up to the \"per person\" or the \"per occurrence\" limits of the policies. The Court finds that the \"per person\" limit is the appropriate maximum level of liability. The District Court in Forty-Eight Insulations used the \"highest single yearly limit in a policy that existed during the period of the claimant's exposure.\" 451 F.Supp. at 1243. However, the CU policies differ from the policies construed in Forty-Eight Insulations, in that no \"aggregate\" limits are present. Additionally, we can find no language regarding \"one person one accident,\" or \"more than one person one accident,\" as was used in Forty-Eight Insulations, 451 F.Supp. at 1234.\nIn Lombard, 284 So.2d at 915, the Louisiana Supreme Court applied the \"per occurrence\" limit in a property damage situation. However, interpretation of \"occurrence\" language under an insurance policy is different for property damage than for bodily injury damage. Ducre, 752 F.2d at 992-993. Generally, insurance policy limits for property damage are \"occurrence\" and \"aggregate\" limits. Obviously, in the property damage context, \"per person\" limits are not applicable. In cases of bodily injury damage, the \"per person\" and \"per occurrence\" limits are used. Thus, Lombard used the lowest policy limit available under its insurance policy. Applying Lombard to the CU policies, would lead to the conclusion that the lower \"per person\" limits should be used.\nFinally, Avondale bought and paid for excess insurance from Lloyds. Thus, to apply the \"per person\" limit would comport with the parties' intent.\nThe Court holds that for each year during which a plaintiff was exposed to silica dust at any time, CU is on the risk up to the \"per person\" limits in effect for that particular year. Any unused amount of coverage may not be carried over to a different year in which CU did not provide coverage, or in which higher coverage limits were in effect. Similarly, in any year in which CU's limits are insufficient to meet a judgment, the excess insurers shall be liable up to their policy limits on a yearly basis.\nAn example outlining this allocation method follows:\n\n\n*715\nJudgment for plaintiff = $1,000,000.\nPlaintiff's exposure to silica = 10 years.\n PER PERSON AMOUNT OWED BY\n JUDGMENT/ LIMITS OF PRIMARY INSURANCE\nINSURANCE CO. YEAR YEAR PRIMARY POLICY COMPANY \n A 1 $ 100,000 $ 50,000 $ 50,000\n A 2 100,000 50,000 50,000\n A 3 100,000 50,000 50,000\n B 4 100,000 100,000 100,000\n B 5 100,000 100,000 100,000\n B 6 100,000 100,000 100,000\n C 7 100,000 150,000 100,000\n C 8 100,000 150,000 100,000\n C 9 100,000 150,000 100,000\n C 10 100,000 150,000 100,000\n __________\n $1,000,000\nInsurance Company A owes = $ 150,000\nInsurance Company B owes = 300,000\nInsurance Company C owes = 400,000\nAmount of judgment not = 150,000\n covered by insurance\n __________\n $1,000,000\n\nIn this example, if the insured had excess insurance coverage during the entire ten year period which provided for limits of $1,000,000, excess of the underlying policies, the excess insurer would owe $150,000; i.e. the sum of the excess insurer's exposure for each of the three years for which the primary insurer's applicable limits were inadequate.\nAccordingly,\nIT IS ORDERED that:\n1) for each calendar year 1965 through 1969, CU's liability is limited to the \"per person\" liability of $25,000, per plaintiff.\n2) for the year of coverage beginning January 21, 1971, through January 21, 1972, CU's liability is limited to the \"per person\" limit of $250,000, per plaintiff.\n3) before any rulings can be made on any other insurance policies, the parties must either provide copies of the policies, or stipulate as to their contents.\nNOTES\n[1] Highlands Insurance Company provided insurance coverage to Avondale for the period of January 1, 1970 to January 21, 1970. These insurance policies are not at issue, since the plaintiffs previously settled with Highlands.\n\nCU also issued a policy effective January 1972 to July 1972 for which this Court previously held no coverage is owed because of a pollution exclusion.\nIn addition, CU moved for summary judgment on the policy issued for the calendar year 1964; Lloyds moved for declaratory judgment on the policies issued from 1960 to 1964. However, as the parties have neither provided these policies to the Court nor stipulated as to their contents, this ruling does not appply to such policies.\n[2] The Court acknowledges that the insurance policies at issue in Forty-Eight Insulations had policy periods of varying lengths. However, reference to the body of the opinion leads to the conclusion that allocation is to be made by a yearly, pro-ration formula.\n\nIn Footnote 28, the Sixth Circuit noted that the aggregate limits of the various policies were $5.6 million. 633 F.2d at 1228. Thus, an argument could be made that liability should be allocated according to the policy period, and not on a yearly basis. However, the policies at issue in Forty-Eight Insulations had aggregate limits which were to be in effect during the policy period. The CU policies do not have aggregate limits. Additionally, the majority of CU's policies were for periods of one year, while only one CU policy had a policy period of less than one year. Accordingly, it would make no difference whether allocation was made on a yearly basis or on a policy period basis. This Court concludes that pro-ration on a yearly basis, for both primary and excess insurers is the equitable and fair solution.\n\n", "ocr": false, "opinion_id": 1499128 } ]	E.D. Louisiana	District Court, E.D. Louisiana	FD	Louisiana, LA
845,508	null	2006-08-29	false	people-v-love	Love	People v. Love	null	null	null	null	null	null	null	null	null	null	null	null	0	Published	null	null	[ "720 N.W.2d 316" ]	[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 1, "download_url": "http://publicdocs.courts.mi.gov:81/SCT/PUBLIC/ORDERS/20060829_S131135_46_131135_2006-08-29_or.pdf", "author_id": null, "opinion_text": "\n720 N.W.2d 316 (2006)\nPEOPLE of the State of Michigan, Plaintiff-Appellee,\nv.\nDajuan Maruice LOVE, Defendant-Appellant.\nDocket No. 131135. COA No. 258196.\nSupreme Court of Michigan.\nAugust 29, 2006.\n\nRECOMMENDED ORDER\nOn order of the Court, the application for leave to appeal the March 16, 2006 judgment of the Court of Appeals is considered, and it is DENIED, because we *317 are not persuaded that the questions presented should be reviewed by this Court.\n", "ocr": false, "opinion_id": 845508 } ]	Michigan Supreme Court	Michigan Supreme Court	S	Michigan, MI
1,023,645	null	2007-09-06	false	parker-v-snipes	Parker	Parker v. Snipes	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://pacer.ca4.uscourts.gov/opinion.pdf/076352.U.pdf", "author_id": null, "opinion_text": " UNPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 07-6352\n\n\nMONROE ROOSEVELT PARKER, JR.,\n\n Plaintiff - Appellant,\n\n and\n\n\nTONIA R. PARKER,\n\n Plaintiff,\n\n versus\n\n\nR. SNIPES, Police Sergeant; J.R. BLALOCK,\nSheriff; LLOYD GOINS, Jailer/Major; BOBBY\nEASTER, Owner/Manager; DEPUTY REYNOLDS,\nInvestigator/Detective,\n\n Defendants - Appellees.\n\n\nAppeal from the United States District Court for the Middle\nDistrict of North Carolina, at Durham. James A. Beaty, Jr., Chief\nDistrict Judge. (1:06-cv-867)\n\n\nSubmitted: August 30, 2007 Decided: September 6, 2007\n\n\nBefore MICHAEL, KING, and SHEDD, Circuit Judges.\n\n\nDismissed by unpublished per curiam opinion.\n\n\nMonroe Roosevelt Parker, Jr., Appellant Pro Se.\n\n\nUnpublished opinions are not binding precedent in this circuit.\n\fPER CURIAM:\n\n Monroe Roosevelt Parker, Jr., seeks to appeal the\n\ndistrict court’s order accepting the recommendation of the\n\nmagistrate judge and dismissing his 42 U.S.C. § 1983 (2000)\n\ncomplaint without prejudice to filing a new complaint. This court\n\nmay exercise jurisdiction only over final orders, 28 U.S.C. § 1291\n\n(2000), and certain interlocutory and collateral orders, 28 U.S.C.\n\n§ 1292 (2000); Fed. R. Civ. P. 54(b); Cohen v. Beneficial Indus.\n\nLoan Corp., 337 U.S. 541 (1949). The order Parker seeks to appeal\n\nis neither a final order nor an appealable interlocutory or\n\ncollateral order. See Domino Sugar Corp. v. Sugar Workers Local\n\nUnion 392, 10 F.3d 1064, 1066-67 (4th Cir. 1993). Accordingly, we\n\ndismiss the appeal for lack of jurisdiction. We dispense with oral\n\nargument because the facts and legal contentions are adequately\n\npresented in the materials before the court and argument would not\n\naid the decisional process.\n\n DISMISSED\n\n\n\n\n - 2 -\n\f", "ocr": false, "opinion_id": 1023645 } ]	Fourth Circuit	Court of Appeals for the Fourth Circuit	F	USA, Federal
419,601	null	1983-05-17	false	chicago-title-insurance-company-v-sherred-village-associates-chicago	null	null	Chicago Title Insurance Company v. Sherred Village Associates, Chicago Title Insurance Company v. Sherred Village Associates, Department of Housing and Urban Development	null	null	null	null	null	null	null	null	null	null	null	10	Published	null	null	[ "708 F.2d 804" ]	[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/708/708.F2d.804.82-1658.82-1657.html", "author_id": null, "opinion_text": "708 F.2d 804\n CHICAGO TITLE INSURANCE COMPANY, et al., Plaintiffs, Appellants,v.SHERRED VILLAGE ASSOCIATES, et al., Defendants, Appellees.CHICAGO TITLE INSURANCE COMPANY, et al., Plaintiffs, Appellees,v.SHERRED VILLAGE ASSOCIATES, et al., Defendants, Appellees.Department of Housing and Urban Development, Defendant, Appellant.\n Nos. 82-1657, 82-1658.\n United States Court of Appeals,First Circuit.\n Argued March 8, 1983.Decided May 17, 1983.\n \n John W. Philbrick, Portland, Me., with whom Verrill & Dana, Portland, Me., Donald Memmer, and Gladys N. Bryer, Chicago, Ill., were on brief, for plaintiffs, appellants Chicago Title Ins. Co. and New England Merchant's Nat. Bank.\n Margaret E. Clark, Atty., Civil Div., Dept. of Justice, Washington, D.C., with whom J. Paul McGrath, Asst. Atty. Gen., Washington, D.C., Richard S. Cohen, U.S. Atty., Portland, Me., Anthony J. Steinmeyer, Atty., Civil Div., Dept. of Justice, and Nancy Christopher, Atty., Dept. of Housing and Urban Development, Washington, D.C., were on brief, for defendant, appellant Secretary of Housing and Urban Development.\n Karen B. Lovell, Saco, Me., with whom Charles W. Smith, and Smith & Elliott, P.A., Saco, Me., were on brief, for defendant, appellee Hercoform, Incorporated.\n Before COFFIN, Chief Judge, BREYER, Circuit Judge, and MALETZ,* Senior Judge.\n COFFIN, Circuit Judge.\n \n \n 1\n The issue before us is whether federal law should adopt a state rule of decision governing the relative priority of a mechanics' lien and a mortgage insured by and assigned to the Department of Housing and Urban Development (HUD). We have been charged by the Supreme Court with the responsibility of determining whether the facts of this case are sufficiently different from those in United States v. Kimbell Foods, Inc., 440 U.S. 715, 99 S.Ct. 1448, 59 L.Ed.2d 711 (1979), to necessitate a federal rule of decision in priority disputes involving HUD mortgages. For the reasons set out below, we agree with the district court, see 544 F.Supp. 320 (D.Me.1982), that in this case, as in Kimbell Foods, Congress has not spoken regarding the priority rule that should govern and it does not appear that a national rule is necessary to protect the federal interests underlying the loan program.\n \n I. Factual and Procedural Background\n \n 2\n This case involves security interests relating to a moderate income housing project built in Bath, Maine in 1972 and 1973. Sherred Village Associates (Sherred Village) is the owner and developer of the project. Hercoform Incorporated (Hercoform) was a subcontractor on the project. It performed work pursuant to a contract entered into in 1971 with Sherred Corporation, contractor for Sherred Village. Financing was provided by the New England Merchants National Bank (Bank), in exchange for a mortgage on the property insured by HUD under Section 236 of the National Housing Act, 12 U.S.C. Sec. 1715z-1. Chicago Title Insurance Company (Chicago Title) insured the developer's title in the mortgaged property for the benefit of the Bank. Among the risks insured against were liens superior to the Bank's mortgage.\n \n \n 3\n Following completion of the project in 1973, Hercoform filed a mechanics' lien claim for $440,986.03 in assertedly unpaid bills on the project. Hercoform also commenced an action in state court to enforce its lien. In 1974, Sherred Village defaulted on its payment to the Bank and the Bank assigned the mortgage to HUD.\n \n \n 4\n Before judgment was rendered in the state court action, the Bank and Chicago Title brought suit in the United States District Court for the District of Maine, seeking a declaration that the government's mortgage lien was entitled to priority over Hercoform's mechanics' lien. Hercoform and HUD were named as defendants, although HUD agreed with plaintiffs that the federal lien had priority.\n \n \n 5\n It was undisputed that under Maine law Hercoform's lien was entitled to priority, since Hercoform's contract was executed prior to the recording of the mortgage. See 10 M.R.S.A. Sec. 3251. The court ruled, however, that the traditional federal \"first in time, first in right\" and \"choateness\" rules controlled and that, under those rules, HUD's mortgage was entitled to priority over the mechanics' lien asserted by Hercoform. We affirmed. See 568 F.2d 217 (1st Cir.1978).\n \n \n 6\n In 1979, the Supreme Court, 441 U.S. 901, 99 S.Ct. 1987, 60 L.Ed.2d 370, vacated the judgment and remanded the case to us for further consideration in light of United States v. Kimbell Foods, Inc., supra. We in turn remanded it to the district court, where HUD joined with Chicago Title and the Bank in urging that a federal rule of priority should govern. The district court reopened the record and conducted an extensive evidentiary hearing concerning the operation of the HUD Section 236 program, pursuant to which this project was undertaken.1 The court concluded that state lien priority law should be adopted as the federal rule of decision and, accordingly, that Hercoform's mechanics' lien is superior to the mortgage held by HUD. Plaintiffs appealed that decision to us. Having considered the arguments advanced by the parties before us, both written and oral, and having reviewed the record and the carefully considered opinion of the district court, we affirm.\n \n II. Analysis\n \n 7\n Plaintiffs advance two primary arguments in support of their contention that federal law should control. First, they insist that although Congress has not explicitly mandated a federal rule of priority in disputes involving HUD mortgages, Congress's intent that there should be such a rule is clear. Second, they urge that even if we are not persuaded of the clarity of Congress's directive, application of the factors set out by the Supreme Court in Kimbell Foods supports their position that a uniform federal rule of priority is necessary.\n \n A. Congressional Intent\n \n 8\n The analysis of the Supreme Court in Kimbell Foods was premised on the fact that Congress had not spoken regarding the priority of private liens and contractual liens arising from Small Business Administration (SBA) and Farmers Home Administration (FHA) loan programs. See 440 U.S. at 718, 735, 740, 99 S.Ct. at 1453, 1462, 1464-65. The trial court in this case also recognized that a clear indication of congressional intent would render Kimbell Foods inapplicable.\n \n \n 9\n Appellants advance several arguments that Congress has spoken regarding the priority that should be accorded a HUD insured mortgage. First, they insist that both the statute and HUD's regulations require that HUD insure only mortgages that are \"first liens\" on the properties covered. See 12 U.S.C. Sec. 1707(a); 24 CFR Secs. 203.17(a), 207.3(a)(3). In addition, HUD has consistently construed the statute and regulations as requiring that the mortgages it insures take priority over after-recorded private liens and, appellants insist, that interpretation is entitled to \"controlling weight\" unless it is \"plainly erroneous\" or inconsistent with the wording of the regulations themselves. United States v. Larionoff, 431 U.S. 864, 872-73, 97 S.Ct. 2150, 2155-56, 53 L.Ed.2d 48 (1977).\n \n \n 10\n Appellants do not argue that the statute and regulations requiring \"first lien\" status themselves preempt state priority rules. Such a position would be difficult to maintain, in light of the absence of any mention in either the statute or the regulations of a federal rule of priority2 and of the provisions in the regulations requiring that a mortgagee warrant, at the time of assignment of the mortgage to HUD, that it is not encumbered by any mechanics' liens recorded after the mortgage, regardless of whether such liens attached prior to the recording date. See 24 CFR Secs. 236.251, 207.258. The requirement would not be necessary if the regulations also mandated a federal rule of priority. Appellants argue, instead, that, given HUD's interpretation of \"first lien,\" a federal rule of priority is necessary to ensure the required absolute priority. They also point out that they have long assumed that the necessary federal rule of priority would govern.3\n \n \n 11\n We agree that an agency's interpretation of its own regulations is entitled to considerable weight. We also agree that, assuming that the action would be within its delegated authority, the agency could promulgate regulations requiring the \"first in time\" priority rule. See Fidelity Federal Savings and Loan Association v. de la Cuesta, --- U.S. ----, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982). We are not persuaded, however, that the sum of these two propositions means that an agency may, by its interpretation of its regulations, accomplish a preemption of state law not otherwise supportable in the regulations themselves. Absent a clearer declaration by Congress or HUD, we find the agency's assumption that a federal rule of priority was necessary to ensure its \"first lien\" statutes an insufficient indication of congressional intent to render Kimbell Foods inapplicable.\n \n \n 12\n Appellants also point to Congress's 1981 enactment of the Multifamily Mortgage Foreclosure Act (MMFA), 12 U.S.C. Sec. 3701 et seq., as evidence of Congress's intent that a federal rule of priority should govern in this case. That act provides for a nonjudicial foreclosure in the event of a default by the mortgagor on a mortgage held by HUD under Title II of the National Housing Act or section 1452b of Title 42. Section 3712 of the MMFA sets out the order in which payment of proceeds from a foreclosure sale should be made. The order conforms to the \"first in time\" rule urged by appellants.\n \n \n 13\n The MMFA would, it appears, cover a HUD-initiated foreclosure on the mortgage at issue here. Thus, appellants insist, it is irrational to assume that Congress would set out a rule for distribution of proceeds of a foreclosure sale forced by HUD and not intend that the same rule apply to a distribution of proceeds of a foreclosure sale forced by a contractor enforcing a mechanics' lien.\n \n \n 14\n Appellants' argument has some appeal. Under Maine law, the remedy available to the holder of a mechanics' lien is to file a complaint asserting its lien and asking that the property be sold and the proceeds applied to the discharge of the lien. See 10 M.R.S.A. Sec. 3257. Thus, it would appear that the result of agreeing with the district court that Congress did not intend to mandate a federal rule of priority for all situations in which a HUD mortgage is involved would be that the difference between having the state or federal rule apply would depend on who enforced his lien first.\n \n \n 15\n For whatever reason, however, Congress has not explicitly mandated a federal rule of priority in cases in which a contractor seeks to enforce a mechanics' lien. Nor did it, in enacting the MMFA, express its intent that federally insured liens always have first in time priority or any concern over the possible subordination of a federal lien to a superior mechanics' lien. The legislative history of the act indicates only that Congress was concerned that when HUD does foreclose, it have an expeditious foreclosure process:\n \n \n 16\n \"This measure is of special importance to HUD's multifamily mortgage insurance and rehabilitation loan programs. Lengthy delays in foreclosing defaulted mortgages caused by excessive foreclosure periods in some States increase the risk of property deterioration, vandalism and waste. The resulting loss to HUD (including its mortgage insurance funds) and the taxpayer in terms of rehabilitation costs and increased management and holding expenses is substantial. Moreover, these conditions impose a severe hardship on the tenants of affected projects and on the neighborhoods in which the projects are located. The proposed legislation would ameliorate this situation by providing an efficient, equitable, and, most important, relatively expeditious nonjudicial foreclosure remedy.\" 1981 U.S.Code Cong. & Ad.News 560.\n \n \n 17\n Further support for a narrow construction of the MMFA is provided by Congress's explicit direction that \"[t]he title is procedural only and is not intended to affect substantive rights except as explicitly set out in the bill.\" Id.\n \n \n 18\n It may be that Congress's silence on the need for a federal rule of priority reflects only that it shared HUD's assumption that there already was such a rule. According to appellants, no federal court has declined to apply the \"first in time\" test in a dispute involving HUD. The same argument, however, could have been made regarding Congress's silence on the priority of SBA and FHA loans, and the Court in Kimbell Foods read no more into that silence than that Congress had expressed no intent that federal law govern. In the absence of more specific congressional direction, we are reluctant to read into the existence of the MMFA Congress's intent that a federal rule of priority govern in all situations in which property financed by a HUD insured mortgage may be foreclosed.\n \n \n 19\n We are also not persuaded that the apparent anomaly is real enough to render our conclusion irrational. In the first place, the MMFA applies by its terms only when foreclosure is sought by HUD. Under the regulations, 24 CFR Sec. 207.258, a mortgagee can elect, after default by the mortgagor, whether to foreclose itself and convey the property to HUD (or, with permission from HUD, sell the property) or to assign the mortgage to HUD and let HUD foreclose. Thus, even in the event of a default warranting foreclosure by the mortgagee, the MMFA does not necessarily control. In addition, even if HUD holds the mortgage, if a contractor seeks to enforce a mechanics' lien, in most cases the mortgagee will decide that it is better off advancing the money to pay off the mechanics' lien so that the project can continue than allowing the property to be sold, even if the mortgagee is entitled to the bulk of the proceeds. If not, because the existence of a mechanics' lien is a covenant default, HUD itself could foreclose and be entitled to first in time priority under the MMFA.4\n \n \n 20\n The result of allowing state law to govern in this case, then, would not be to establish two different sets of priorities for disposition of sale proceeds, but only to allow a contractor to force HUD, or someone to whom HUD has passed the risk, to make sure that the contractor gets paid for all work done with the consent of the owner. A contrary rule, such as the federal \"first in time\" rule set out in the MMFA, would mean that a contractor would have no way of forcing recovery for work performed with the consent of the owner, or even with the consent of HUD, unless he could file his lien prior to the recording of the mortgage. If he sued to enforce his lien, HUD would step in and assert its prior interest in the property. The contractor could then not reach the property until the beneficial interest in it was returned to the original owner.\n \n \n 21\n In sum, we are not persuaded that Congress has spoken on the need for a federal rule of priority in all disputes involving HUD mortgages. We proceed, therefore, to an analysis of the factors set out by the Supreme Court in Kimbell Foods to guide our determination whether a federal rule of decision is necessary.\n \n B. Kimbell Foods Test\n \n 22\n In Kimbell Foods, the Supreme Court set out three factors that should be considered in determining whether federal law should adopt a state rule of decision to govern federal programs. Those factors are: the need for a nationally uniform body of law, the likelihood that application of state law would frustrate specific objectives of the federal program, and the extent to which application of a federal rule would disrupt commercial relationships predicated on state law. The trial court analyzed the evidence in this case in light of those factors and determined that a state rule of decision should be adopted.\n \n 1. Standard of Review\n \n 23\n Before delving into the merits of the Kimbell Foods analysis, we acknowledge the deference we owe to the trial court's findings. The trial court's determination that, under the Kimbell Foods analysis, a state rule of decision should be adopted might be labelled an \"ultimate fact\" independently reviewable by a court of appeals. See Baumgartner v. United States, 322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed. 1525 (1944). We are guided, however, by the Supreme Court's insistence in Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982), that a court of appeals not, by labelling a finding an \"ultimate fact\" seek to substitute its own assessment of the evidence for that of the trial court. The analysis suggested by the Court in Kimbell Foods requires a number of factual determinations and judgment calls in light of the evidence as a whole. The court below had the benefit of several days of hearings and first hand knowledge of the viewpoints of the various witnesses. We consider ourselves bound by that court's determinations unless \"on the entire evidence [we are] left with the definite and firm conviction that a mistake has been committed.\" United States v. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948), quoted in Pullman-Standard v. Swint, supra, 102 S.Ct. at 1788 n. 14.\n \n 2. Need for Uniformity\n \n 24\n The district court considered HUD requirements and practices regarding the operation of the Section 236 program and concluded that \"in this case, as in Kimbell Foods, 'considerations of administrative convenience do not warrant adoption of a uniform federal law.' \" 544 F.Supp. at 327. Appellants strenuously contend that the court failed to address critical distinctions between the HUD program at issue here and the SBA and FHA programs considered by the Court in Kimbell Foods. In particular, they point out that, in contrast to the relatively uniform state rules governing the priority of liens in personal property, state mechanics' lien laws differ from state to state. They also point out that the HUD program is built around an assumption that the HUD mortgage will be a uniform instrument, not subject to the vagaries of state law, and not set up to accommodate state substantive law. The SBA and FHA regulations, in contrast, expressly acknowledged substantive state priority laws that might subject the federal liens to superior private liens.\n \n \n 25\n We agree with appellants that the HUD program differs from the SBA and FHA programs at issue in Kimbell Foods, in particular in the national base from which HUD seeks to attract funding. We do not, however, consider this distinction or the other distinctions pointed out by appellants to be significant enough to render the district court's judgment clearly erroneous. As the district court noted, there are striking similarities between the programs in the key factors discussed by the Court in Kimbell Foods. HUD administers the program through field offices staffed with local counsel from each state. HUD regulations require compliance with state procedural requirements and look to state substantive law on a number of points. Finally, assessing insurance applications in light of state priority law would not greatly increase the burden on HUD, since each application already receives extensive individual scrutiny.\n \n 3. Frustration of Federal Objectives\n \n 26\n Appellants' major argument regarding application of the Kimbell Foods test is aimed at what they consider to be the court's failure to appreciate the severe consequences to the HUD program and to the intended beneficiaries of that program of adoption of a state rule of decision. They envision a domino-like progression of calamities. Title insurance companies will be unwilling to write lien coverage for HUD projects in states like Maine; initiating lenders and subsequent purchasers of the mortgages will be unwilling to assume the risk of having their mortgages \"primed\" by (i.e., subordinated to) subsequently recorded mechanics' liens; HUD projects will come to a halt in those states and there will be no more federally insured low and moderate income housing there.\n \n \n 27\n The district court considered all of the evidence and was not persuaded that the HUD program would collapse if the linchpin of absolute federal priority were removed. It noted the number of provisions made by HUD to ensure the financial soundness of the projects insured by HUD. It also noted that by requiring that the initiating lender warrant, at the time of assignment of a mortgage to HUD, that the mortgage is prior to all other liens, HUD had effectively shifted the risk of those liens to the initiating lenders. As to the argument that were HUD to abandon its current policy of not enforcing the warranty requirement, initiating lenders would not be willing to participate in the programs, the court concluded that the evidence simply did not support the contention. Initiating lenders who testified did not indicate that they would be unwilling to participate if they ran the risk of responsibility for mechanics' liens. In addition, the court noted that initiating lenders protect themselves with title insurance and concluded that mechanics' lien coverage is (and, presumably, will remain) available. While the evidence on these points was not undisputed, there is sufficient evidence in the record to support the court's determinations.\n \n \n 28\n On appeal, HUD urges that even if there is support for the court's conclusions regarding the primary actors in the HUD financing scheme, the court erred in failing to consider the impact of abandoning a rule of \"first in time\" priority on the secondary mortgage market and on the Government National Mortgage Association's (GNMA) mortgage-backed securities program. Because of the importance of those secondary market programs in providing funding for HUD's low and moderate income housing programs, we have looked closely at the evidence that those funding sources would not be available absent a \"first in time\" rule of priority. We are not persuaded that the court's findings on the effect of a state rule of priority on the mortgage purchase and sale program are clearly wrong or that the court's failure to address the effect of a state rule on the mortgage backed securities program renders its conclusions \"clearly erroneous.\"\n \n \n 29\n a. Mortgage purchase and sales programs--the \"tandem programs\"\n \n \n 30\n Under the tandem programs, GNMA purchases mortgages from initiating lenders and then resells them at auction at a reduced price. The loss is considered a government subsidy to the housing program. The purpose of this resale scheme as we understand it is to funnel outside funds into the housing program--to free up the initiating lenders to make more mortgages--and to encourage the initiating lenders to make construction loans at rates lower than they would be willing to charge for long term mortgages.\n \n \n 31\n HUD argues that the district court, in analyzing the harm to HUD of a state rule of priority, focused too narrowly on HUD's ability to require that initiating lenders, GNMA or purchasers from GNMA warrant that the mortgage is prior to all subsequently recorded liens. It points out that while that arrangement may protect HUD, it would, if enforced, discourage investors from participating in the program. In particular, the purchasers from GNMA would be unwilling to do so if the risk of a mechanics' lien were on them.\n \n \n 32\n The district court, however, did not ignore this problem. It noted that a purchaser from GNMA is protected against mechanics' liens by the contractual agreement of GNMA either to repurchase the mortgage or to correct any defect preventing recovery from HUD. GNMA could then require repurchase by the initiating lender who was required to warrant, on selling the mortgage to GNMA, that it was clear of all liens. The risk, in other words, has again been shifted to the initiating lender and the only remaining issue is whether initiating lenders will continue to be willing to participate if they believe that the warranties they have always had to agree to may now be enforced. The district court concluded that they would be and we find its conclusion supportable.\n \n \n 33\n b. Mortgage-backed securities program\n \n \n 34\n According to testimony before the district court, 80% of the funding for HUD's low and moderate income housing programs is provided by GNMA's mortgage backed securities program. Under this program, GNMA allows private financial institutions to originate and create pools of mortgages which are used as collateral for securities issued and guaranteed by GNMA. The issuer, the private financial institution, guarantees to the ultimate purchaser of the security that the investor will receive the timely payment of principal and interest whether actually collected or not. GNMA in turn guarantees the performance of the private financial institution.\n \n \n 35\n The mortgage-backed securities are, apparently, attractive as stable, long term investments to groups such as pension funds and state and local retirement funds. According to appellants, if mortgages used as collateral for securities guaranteed by GNMA were allowed to be subjected to a mechanics' lien, GNMA might declare the mortgages unstable and require the initiating lender to repurchase the security from the security dealer who would, in turn, repurchase the security from the holder. Thus, the desirability of the mortgage backed securities as long term investments would be undermined.\n \n \n 36\n The problem with appellants' argument, as we understand the program, is that GNMA is not compelled by statute or regulation to declare the mortgages unstable and to require repurchase of the loans whenever a mechanics' lien on the mortgaged property is filed. HUD's regulations require only that at the time of assignment of the mortgage to it, there be no superior mechanics' lien on the property. Thus, any instability is simply a result of anticipation of what might happen--the mortgagor might default and HUD might refuse the mortgage entirely and GNMA might have to repurchase the security itself and might not be able to recover from the initiating lender for breach of its warranty that the mortgage would not be encumbered by a mechanics' lien. Obviously GNMA must worry about these possibilities. Our point is simply that, based on the sparse and speculative testimony on this issue before the district court, we are simply not convinced that without a federal rule of priority, and assuming that projects are otherwise stable, GNMA will not find other ways of satisfying themselves that the risk is small enough to proceed with most of the mortgage portfolios despite the presence of a mechanics' lien on one of the mortgages. If there is more of a problem than the district court understood from the evidence before it, or than we understand from our examination of the record, the proper remedy would seem to be for Congress, or at least for HUD, to mandate specifically a federal rule of priority for HUD insured mortgages and to explain why it is necessary.\n \n \n 37\n 4. Disruption of Commercial Relationships Predicated on State Law\n \n \n 38\n Citing Maine's \"comprehensive statutory scheme ... 'designed to protect the rights of the owner as well as to afford security for those performing labor or furnishing labor or materials,' \" the district court concluded that the protection of contractors who rely on state mechanics' lien law to safeguard their interests requires application of that law as the federal rule of decision. Appellants' primary contention before us is that in this case, everyone knew that a HUD mortgage was involved. Thus, Hercoform should have been aware that it would not be able to recover on a mechanics' lien. More important, Hercoform was aware of other protection provided it by the HUD program--a detailed picture of the financial condition of the project before it performed any work and the knowledge that the money is available from HUD to complete the project. Thus, the protection of the state mechanics' lien law was unnecessary.\n \n \n 39\n We are not persuaded. In the first place, according to Hercoform, its detailed prospective look at the financial condition of the project has done nothing to ensure that it would in fact be paid for its work. We also agree with the trial court that whether or not this particular subcontractor expected to be able to avail itself of the state mechanics' lien law is not the crucial issue. The more important question is what would be the long term consequences of adopting a federal rule of priority in disputes involving HUD mortgages. We agree with the district court and with the Court of Appeals for the Ninth Circuit, see Pankow Construction Co. v. Advance Mortgage Corp., 618 F.2d 611, 615-16 (9th Cir.1980), that the formulation of rules to ensure predictability and stability in relationships among the parties to construction projects is primarily a matter of local concern. Absent compelling reasons to displace state law, the relationships are best governed by those local rules.\n \n III. Prospective or Retrospective Application\n \n 40\n Appellants urge that even if we find that a state rule of priority should govern disputes involving HUD mortgages, except where Congress has specifically provided for a federal rule of decision, we should not apply the rule to the parties before us, because appellants relied on the \"first in time\" doctrine. Hercoform counters by pointing out that in 1972 and 1973, the state of the law regarding application of the \"first in time\" rule to a dispute between a federal mortgagee and a private lienor was unsettled. Reliance on it would therefore have been unjustified. In addition, HUD's own regulations insulating itself from loss resulting from subsequently filed liens contradict appellants' argument that the availability of the protection of the \"first in time\" rule was certain. We do not think that this is a case in which prospective application of our decision is necessary to prevent inequitable results or substantial hardship to the parties. See Chevron Oil Co. v. Huson, 404 U.S. 97, 106-08, 92 S.Ct. 349, 355-56, 30 L.Ed.2d 296 (1971).\n \n Conclusion\n \n 41\n We affirm the judgment of the district court that the relative priority of Hercoform's mechanics' lien and the mortgage assigned to HUD should be determined under Maine law. As the issue is undisputed, we also agree that, under Maine law, Hercoform's mechanics' lien is prior to the mortgage assigned to HUD.\n \n \n 42\n Affirmed.\n \n \n \n *\n Of the United States Court of International Trade, sitting by designation\n \n \n 1\n The opinion of the district court outlines the operation of the Section 236 program. See 544 F.Supp. at 323-25\n \n \n 2\n Whatever the significance, in the statutory definition of mortgages that HUD may insure, of the provision that those mortgages should be \"first liens as are commonly given to secure advances on, or the unpaid purchase price of, real estate, under the laws of the State, in which the real estate is located ...\", see 12 U.S.C. Sec. 1707(a), it hardly signals a clear congressional intent that federal priority law should govern\n We also reject appellants' argument that the absence of any mention of mechanics' liens in Congress's list of competing liens that should come ahead of the mortgage on default and assignment to HUD, see 12 U.S.C. Secs. 1715z-3(a)(2), 1713(g), signals Congress's intent that mechanics' liens should be inferior to the mortgage. As the district court noted, the Supreme Court regarded a similar provision in the SBA lending program, 15 U.S.C. Sec. 646, as support for its conclusion that absolute federal priority is not necessary to maintain the federal program. See 440 U.S. at 735 & n. 36, 99 S.Ct. at 1462 n. 36.\n \n \n 3\n As evidence of that assumption, HUD points out that it has not enforced its contractual right to reject the assignment of mortgages that are encumbered by a mechanics' lien\n \n \n 4\n In thus concluding, we do not intend to tackle the priority question that would be presented were a contractor to begin a proceeding to enforce his lien and HUD then to initiate foreclosure proceedings under the MMFA\n \n \n ", "ocr": false, "opinion_id": 419601 } ]	First Circuit	Court of Appeals for the First Circuit	F	USA, Federal

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